February 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT VAUGHN,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1749.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2007
Before Judges Cuff, Fuentes and Baxter.
Defendant Lamont Vaughn appeals from his conviction on three counts of armed robbery in violation of N.J.S.A. 2C:15-1, as well as related weapons offenses. The judge sentenced him to a total of forty years in prison, of which eighty-five percent was ordered to be served without eligibility for parole.*fn2
Appropriate fines and penalties were imposed. The sentence was ordered to be served consecutively to an unrelated violation of probation sentence that had been imposed eight months earlier.
On appeal, defendant raises the following claims:
I. DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE HE DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS CONTITUTIONAL RIGHT TO COUNSEL. (Not Raised Below).
II. DEFENDANT'S SENTENCE WAS EXCESSIVE AND THEREFORE MUST BE VACATED. (Not Raised Below).
A. The Sentence Exceeded The Presumptive Statutory Term and was Based On The Court's Finding Of An Aggravating Factor Other Than The Fact Of A Prior Conviction; In The Alternative, The Court Erred By Referring To "The Presumptive Term."
B. One Of The Consecutive Terms Should Not Have Been Imposed.
C. Defendant's Sentence "Shocks The Judicial Conscience."
In a pro se brief, he raises two additional claims:
I. DEFENDANT'S CONVICTION SHOULD BE OVERTURNED DUE TO THE FACT THAT IT WAS IMPROPER FOR THE TRIAL JUDGE TO SUBMIT TO THE JURY A SPECIFIC DATE BY WHICH TRIAL WOULD BE CONCLUDED! DEFENDANT CONTENDS THAT HEREBY HE WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO A FAIR TRIAL A IMPARTIAL JURORS! (Not Raised Below).
II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE STATE UTILIZED AN UNFAIR MEANS-WHICH WOULD BRING ABOUT AN UNJUST END; IN ORDER TO CONVICT THE DEFENDANT!
The threshold issue presented is whether defendant's waiver of his Sixth Amendment right*fn3 to counsel was done knowingly, intelligently and voluntarily. State v. Crisafi, 128 N.J. 499, 509-11 (1992). If it was not, then defendant was denied his right to counsel and the conviction cannot stand. Ibid. On appeal, defendant argues that the hearings conducted on May 4 and October 20, 2005, were insufficient to determine whether he should be permitted to waive counsel and proceed pro se. He measures those hearings against the standards articulated by the Court in State v. Reddish, 181 N.J. 553, 593-95 (2004). Reddish, however, was not decided until the day the jury commenced its deliberations in this trial. At the time defendant's trial began, Crisafi, and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), represented the definitive standard against which to evaluate a defendant's attempted waiver of his right to counsel.
The Court's decision in Reddish, established a number of other factors to be considered by a trial court in determining whether a defendant's waiver was knowingly and intelligently made, in addition to those already established in Faretta and Crisafi. We conclude that here the waiver hearing did not satisfy even the less demanding standard established by Faretta and Crisafi, and reverse.*fn4
On April 28, 2004, an Essex County grand jury returned Ind. 2004-04-1749, charging defendant with the armed robberies of Marlene DosSantos on February 2, 2004 (count one); Lorgia and Aguediga Rodriguez on February 3, 2004 (counts four and seven); and Rosario Ortiz on February 5, 2004 (count 10).
Two months earlier a different grand jury returned Essex County Ind. 2004-02-448, charging defendant with possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school and within 500 feet of certain locations, aggravated assault on a police officer, resisting arrest and attempted riot.
On May 5, 2004, defendant appeared before the trial court for a pretrial conference, pursuant to Rule 3:9-1(e), on the narcotics charge under Ind. 2004-02-448. At the time the pretrial conference began, the court was aware from a prior hearing that defendant wished to represent himself on the drug charges, and the judge asked him whether he "consider[ed] between the last time I saw you and now my assessment of that you're not better off representing yourself?" When the defendant responded by saying he had not changed his mind, the judge explained that he needed to ask defendant some questions in order to decide whether to let him represent himself.
We describe that hearing in detail. In reply to a question about his education, defendant stated that he had obtained a general equivalency diploma in 2000 or 2001. When asked whether he had ever studied law, defendant stated that he had "studied different cases and different statutes pertaining to [his] case and other cases as well that could be tied into [his] case." The judge did not ask him to elaborate. When asked if he had ever observed a criminal trial, defendant said that as a juvenile, on one occasion, he had participated in a trial as a defendant, but that he had never participated as a defendant in an adult criminal trial. In response to the judge's question, he answered "yes" when asked if he understood the rules of the procedure and evidence "to a great degree are different" in adult court than they are in juvenile. He was not asked in what way the rules of procedure varied from each other in the two courts. He said he had watched a portion of his uncle's criminal trial when he was fifteen years old, but had not been present for any of the examination of witnesses. Defendant correctly listed five of the six charges he was facing, only briefly forgetting the resisting arrest charge. When asked what his sentencing exposure was were he to be convicted, he answered "somewhere in the ten [do] five range or fifteen [do] five, something like that." The court then explained that he faced twenty-one and one-half years in prison, of which half could be ordered to be served without parole. Defendant was able to explain all of the elements of the offenses he was charged with.*fn5
When the judge inquired whether he understood if he represented himself he was "on [his] own" and that the judge "cannot tell [him] how [he] should try [his] case or even advise [him] how to try [his] case," he answered "yes." Defendant also said he understood that if he couldn't frame a question properly the court would not help him, no matter how frustrated he became. When asked how familiar he was with the rules of evidence, he answered "somewhat." When the judge asked him to be more specific, defendant said "I've read through some of the chapters in a book." When the judged asked defendant if he had understood the chapters he had read, he said he hadn't "read them to study them" but had instead "read them just to breeze through them." The judge explained that defendant's lack of understanding of the rules of evidence would put him at a "severe disadvantage" and could create a problem for him in representing himself. Defendant's answer was not entirely responsive. He explained that if there was a law library at the jail, jail officials hadn't "extended the privilege of us going to it." The defendant agreed that his lack of access to the rules of evidence would, as he stated, "definitely" put him at a disadvantage, adding he understood that those rules governed what evidence could or could not be introduced at trial.
Asked whether he had ever read the rules of court, defendant answered "yes, somewhat." In response to the judge's inquiry whether he understood that those rules govern the way in which a criminal action was tried and that he was obliged to abide by them, he answered simply "yes." He gave the same answer when asked whether he understood that if he took the witness stand, he would be required to ask himself questions and would be prohibited from testifying in a narrative fashion. When asked whether he was aware of the defenses potentially available to him, defendant said, "I got a whole bunch of them in my folder. Yeah, I read them. I'm reading them." When the judge asked defendant to name the possible defenses without, of course, commenting on the facts of his case, defendant answered simply "I'm denying what these -- everything that's against me." When asked whether self-defense was a possible defense, defendant said "no," and later added, "it could be." Finally, when asked whether he understood that "a lack of knowledge of law may impair [his] ability to defend [him]self and that [his] dual role as attorney and accused might hamper the effectiveness of [his] defense," defendant answered "yes." The judge did not ask him to explain how that dual role could be problematic.
The judge then asked the assistant prosecutor to outline what she expected to prove. After describing the officer's undercover observations of a hand-to-hand sale of narcotics by defendant and defendant's physical struggle with the arresting officers, she explained that if defendant were convicted she would seek to have him sentenced as a persistent offender to an extended term of imprisonment because of his four prior convictions.
The judge then tried to dissuade defendant from representing himself. The judge explained:
I must advise you that in my opinion, a trained lawyer would far better defend you than you can by yourself. I think that trying to represent yourself is unwise of you. You are not familiar with the law, Mr.
Horn. You're not familiar with court procedure. You're not familiar with the rules of evidence. I would strongly urge you not to represent yourself.
After ascertaining that defendant's decision to forego representation by counsel was voluntary, and that defendant had no history of mental illness, and was not under the influence of drugs or alcohol, and after both the State and defense counsel expressed their opinion that the waiver was knowing and voluntary, the court made the following findings of fact:
THE COURT: In light of the questions I've asked Mr. Horn and in light of the answers that he has given and also in light of the representations made by [the public defender] who has dealt with Mr. Horn extensively and who opines that his waiver of counsel is knowing and voluntary, I find that the defendant has knowingly and voluntarily waived his right to counsel and I will therefore permit self-representation with regard to indictment only.
The court then appointed the assistant public defender, who had been representing him until that moment, as standby counsel. When the judge explained the role of standby counsel to defendant, he responded by stating that although he had no specific dislike of that particular lawyer, he simply distrusted the public defender's office in general.
After the judge specifically noted that his decision to permit self-representation was confined to Ind. 04-02-448, the judge asked defendant if his desire to represent himself was limited to that indictment. Defendant answered, "yes. As of right now." The court then suggested defendant ask standby counsel to help him gain access to the law library in the jail and suggested that defendant should also speak to jail officials concerning the problem.
Standby counsel advised the judge that a grand jury panel had recently indicted defendant on the pending robbery charges. She noted that the new indictment, 04-04-1749, was scheduled for an arraignment/status conference, pursuant to Rule 3:9-1(c), on May 24, 2004, which was about three weeks later. She placed on the record her belief that a separate hearing on self-representation would have to be conducted before defendant could be permitted to represent himself on that indictment. When the judge asked defendant if his combined sentencing exposure of eighty years on the two indictments caused him to change his mind about representing himself, defendant said that it did not.
Before the hearing ended, the defendant expressed surprise that he could not obtain the personnel records of the arresting officers simply by asking for them. A trial date was set, and after the pre-trial memorandum, required by R. 3:9-1(e), was completed, the hearing ended.
Defendant was successful in representing himself at trial on Ind. 04-02-448, and was acquitted by the jury on all of the narcotics charges*fn6 contained in that indictment on September 23, 2004.
A month later, the robbery trial that is the subject of this appeal began. The record before us reveals the discussion of defendant representing himself on the robbery indictment was limited to the following exchange, which occurred immediately before jury selection began on October 19, 2004:
THE COURT: I have a duty, I do believe, to attempt to convince you that in my judgment it is unwise for you to represent yourself in this trial. You do understand that this trial is a little bit different from the last trial. In the last trial, you had the opportunity to, for lack of a better word, exploit the fact that it was just the police's words against you, that you had some relationship with the police, and perhaps the jury questioned that relationship in its assessment of credibility.
I don't know, I wasn't in the jury room, but the point of the matter is, here, as I understand the evidence . . . that these are independent witnesses . . . that don't have a pre-existing relationship with the defendant. . . . So unlike last time, Mr. Vaughn will not be able to point to some pre-existing motivation for these witnesses to come in here and identify.
Now why do I . . . tell you that . . . . I tell that because it might be more difficult in your cross-examination and your direct examinations and you may not be skilled in the terms of the Rules of Evidence. I don't have any doubt . . . you can examin[e] cross-examination people, you can . . . make logical points, but it's your technical inability with the Rules of Evidence, which might prove to be a great hindrance to you. That's what it is in this trial . . . . Having said that, do you still wish to represent yourself?
MR. VAUGHN: Yes, Your Honor.
There was no further discussion of the waiver of defendant's right to counsel. The court proceeded immediately to a discussion of courtroom security during the trial. The trial began, and as we have discussed, defendant was found guilty of three counts of first degree robbery.*fn7
Unquestionably, the judge treated the waiver of counsel hearing that he conducted on May 5, 2004, concerning Ind. 2004-02-448, as encompassing self-representation on the robbery indictment as well. That he did so is evident not only from the brevity of the October 19, 2004 proceeding, but also from the fact that, unlike the hearing in May, the court made no findings before the instant trial began that day, on whether defendant's waiver of his right to counsel on the instant robbery indictment was knowing and voluntary.
Crisafi, supra, and Faretta, supra, were the prevailing and authoritative standards at the time this trial started. We analyze the October 19, 2004 waiver of counsel hearing, also known as a Faretta hearing, accordingly.
In order for a waiver of counsel to be valid, "such waiver of trial counsel must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." Crisafi, supra, 128 N.J. at 510.
The "searching inquiry" demanded by Crisafi requires the judge to advise the defendant of:
"[T]he technical problems [he] may encounter in acting as [his] own counsel and the risks [he] take[s] if [his] defense is unsuccessful; . . . that [he] must conduct [his] defense in accordance with the relevant rules of criminal procedure and evidence, that a lack of knowledge of law may impair [his] ability to defend [himself], and that [his] dual role as attorney and accused might hamper the effectiveness of [his] defense. . . . Also, the court should explain to the defendant the difficult[y] in acting as [his] own counsel and should specifically advise the defendant that it would be unwise not to accept the assistance of counsel. [Id. at 512.]
As we analyze the hearings below, we remain mindful that because of the importance of trial counsel to the criminal justice system, "the courts [must] indulge in every reasonable presumption against waiver." State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994). That presumption against waiver was not changed by the Court's opinion in Reddish. Reddish, supra, 181 N.J. at 592.
The threshold issue is whether the earlier Faretta hearing concerning the drug indictment can even be considered, or whether instead the later hearing held the day the robbery trial began is the sole determinant of whether the command of Faretta was satisfied or not. As we begin the task of determining whether defendant decided to proceed pro se "with eyes open," Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 582, we approach that decision with an acute awareness of the precarious position of a trial court when faced with this issue. The constitutional right to counsel and the constitutional right to waive counsel and proceed pro se are mutually exclusive.
At the hearing in May 2004, the trial court carefully and thoroughly explained to defendant that he would be required to abide by the rules of evidence and the rules of court. The judge advised defendant that he would not help him admit exhibits into evidence or help him phrase a question in a manner that would avoid objections from the State, no matter how frustrated defendant became. The judge also advised defendant in May 2004 that in his opinion defendant's lack of understanding of those rules would "put him at a disadvantage." Further, the judge properly advised defendant at the May 2004 hearing that his dual role as counsel and accused could potentially prejudice his defense. Equally important, the judge forcefully explained to defendant his belief that proceeding without counsel was a mistake. He repeated that again in October, although in substantially less detail.
We have no difficulty in concluding that the giving of these warnings, so to speak, was done in sufficient detail to have carried forward to the later Faretta hearing the day the robbery trial began, especially because the judge did again remind defendant in October that his superficial understanding of the rules of evidence and rules of court might be a "great hindrance" to him. To conclude that a detailed repetition of that same material was required again in October strikes us as an unwarranted mechanical application of the Faretta rule.
Our concern about the Faretta hearing held immediately before the robbery trial began springs instead from what we perceive to be a failure to satisfy the real core of Faretta, supra. At its heart, Faretta requires a court to explain to defendant enough about the specific hazards he faces so as to enable him to fully appreciate the risks he takes. 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 582; Crisafi, supra, 128 N.J. at 510. The judge is obliged to explain to a defendant "the nature of the charges, the statutory offenses included within them . . . possible defenses to the charges, . . . and all other facts essential to a broad understanding of the whole matter. Crisafi, 128 N.J. at 510. Without being provided that knowledge, a defendant's waiver of counsel is neither knowing nor intelligent, and cannot satisfy the command of the Sixth Amendment. Id. at 512. That inquiry must be a "searching" one. Id. at 510.
No more than a fleeting discussion was ever held at either Faretta hearing about the nature of the robbery charges. While defense counsel mentioned there were thirteen counts, the judge never advised defendant that he was charged with an armed robbery of four victims during three separate incidents;*fn8 that he could be required to serve eighty-five percent of any sentence without parole, N.J.S.A. 2C:43-7.1; that each victim had selected his photograph from a photo array; that although he had no burden of proof, he should nonetheless endeavor to persuade the jury that the out-of-court identification had been unduly suggestive or was otherwise unreliable; that the cumulative effect of four victims' testimony presented special difficulty, far more than he would face in a single-victim trial; or that in cross-examining the victims he might inadvertently demonstrate an awareness of facts of the robberies not contained in witness testimony or in police reports, thereby causing extreme prejudice to any defense he might have raised. Nor did the Faretta hearing conducted concerning Ind. 04-04-1749 include any discussion by the judge of the elements of the offense of robbery or possible defenses. The record is devoid of any evidence that the defendant was ever made aware of any of the particular difficulties we have discussed that faced him in this exceedingly difficult robbery trial. The record causes us grave concern about whether this defendant waived counsel "with [his] eyes open." Crisafi, supra, 128 N.J. at 510.
Having so concluded, we are nonetheless mindful of the Court's admonition in Crisafi that the failure to properly conduct a Faretta hearing "does not end the court's inquiry whether a defendant has waived counsel knowingly and intelligently." Id. at 512. The "ultimate focus must be on the defendant's actual understanding of the waiver of counsel." Ibid. (emphasis added). In rare circumstances, if the colloquy was inadequate, the conviction will be upheld if, indeed, the defendant knowingly and voluntarily waived his right to counsel. Ibid.
We now turn to the question of whether, as the State contends, defendant's acquittal one month earlier in the drug distribution trial in which he was pro se, demonstrates that he possessed the "actual understanding" of the waiver of counsel that Crisafi demands. Ibid. At first blush, one might conclude that he is the type of "court-wise" criminal so trained in the intricacies of the criminal law as to make an extended and thorough Faretta hearing unnecessary. Id. at 513. Faretta, supra, 422 U.S. at 835, 95, S.Ct. at 2541, 45 L.Ed. 2d at 582. One might conclude that defendant presents the "exceptional case," in which a waiver of counsel can be accepted even though it was not preceded by the thorough discussion of the perils of self-representation that Faretta commands. Crisafi, supra, 128 N.J. at 513. As the Court noted in Crisafi, there are rare instances when "permitting so seasoned a criminal to evade conviction for the asserted reason that he had not intelligently and competently waived counsel would be a perversion of the administration of criminal justice." Id. at 518-19.
This is not such a case. We so conclude for several reasons. First, our common experience informs us that not all criminal trials are alike. Indeed, their dissimilarities vastly exceed their similarities. Unlike defendant's robbery trial, his drug trial presented no significant issues of eyewitness identification, no photo arrays, no multiple victims, far less hazard of self-incrimination and no lesser included offenses.*fn9
Additionally, unlike the defendant in Crisafi, here, defendant's prior experience in self-representation was in a vastly different trial context. In Crisafi, the court rejected the defendant's challenge to the inadequate Faretta hearing because the defendant had represented himself successfully in California in a sexual assault trial, the identical offense for which he had represented himself in the conviction on appeal. Id. at 514. The Court relied in Crisafi on the defendant's age, fifty-seven, his extensive record of adult convictions, and upon the record from the Faretta hearing, which demonstrated that the defendant was aware of potential defenses, had also devised his own trial strategy, and had discussed that strategy with all three of the lawyers representing him during pretrial proceedings. Id. at 513-14. See also State v. Coon, 314 N.J. Super. 426, 437 (App. Div.), (finding that trial court's reliance on Crisafi, was misplaced because the defendant in question lacked the experience of the defendant in Crisafi, and the waiver was not knowingly and intelligently made.) certif. denied, 157 N.J. 543 (1998).
The record here is inadequate to persuade us of anything other than that defendant understood he would be hampered by lack of knowledge of evidence and court rules; that the judge had urged him not to represent himself; that he might be hampered by his dual role of attorney and accused; and that the possible bias of the police witnesses that he had successfully used to his advantage in his drug trial was not present in the robbery trial because these were "independent witnesses." Other than the latter point, lack of witness bias, none of the discussion at either of defendant's two Faretta hearings contained even the slightest discussion of the case-specific difficulties he would face in representing himself at the robbery trial. Indeed, as we have noted, the record is devoid of any discussion of the threshold question of the elements of the offense of robbery or possible defenses to such a charge.
Ultimately, our determination of whether a waiver of counsel is knowing and voluntary must rely, in large part, upon the "particular facts and circumstances surrounding that case" and an analysis of the "seriousness and the complexity of the anticipated trial evidence and issues . . . ." State v. Thomas, 362 N.J. Super. 229, 236 (App. Div.), certif. denied, 178 N.J. 249 (2003). Here, the extraordinary difficulty of the issues, the complexity of the evidence and the seriousness of the charges cannot give us confidence that this particular defendant waived counsel "with eyes open," despite his successful self-representation a month earlier. Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 582.
Our ruling should not be interpreted as a criticism of the trial judge's efforts. He scrupulously endeavored to protect defendant's rights, both at the waiver hearing and during the trial itself. We are not unmindful of the numerous recesses he ordered during the trial to allow defendant to consult with standby counsel. Indeed, that is why the trial lasted far longer than the original estimate he gave the jury during jury selection.
Finally, our reversal of the waiver of counsel should not be understood as suggesting that defendant's lack of technical knowledge of rules of evidence or procedure made his waiver of counsel ineffective. Faretta teaches otherwise. Id. at 836, 95 S.Ct. at 2541, 45 L.Ed. 2d at 582. A defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation. Id. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 581-82. Nor is any "technical legal knowledge" even required. Id. at 836, 95 S.Ct. at 2541, 45 L.Ed. 2d at 582. Instead, it is the omission from the Faretta hearing of any meaningful discussion of the hazards and complexities of this particular robbery trial that causes us to question whether defendant knew the risks he was taking, and the benefits he was surrendering, when he gave up one of the most cherished liberties a free society can provide,*fn10 that of a lawyer to represent him in a criminal trial.
Our determination that defendant's conviction must be reversed makes unnecessary any consideration of defendant's sentencing arguments or of either of the points contained in his pro se brief.
Reversed and remanded for a new trial.