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State v. Dubois

March 8, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
PASCAL DUBOIS, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

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).

In this criminal proceeding, the trial court found that defendant knowingly and intelligently waived his right to counsel and permitted defendant to act as his own attorney with standby counsel. The Appellate Division reversed the convictions because it found the trial court failed to inform defendant fully of the risks created by self-representation. The State moved for certification before this Court.

On August 19, 1999, Amal Brohmi was sexually assaulted in her apartment, at knife-point, by defendant Pascal DuBois, her ex-husband. When defendant subsequently stepped into the bathroom, Brohmi escaped from the apartment. Defendant then left the apartment and drove off in Brohmi's car. Defendant was arrested the next day. Defendant was indicted for second-degree burglary, two counts of first-degree aggravated sexual assault, second-degree sexual assault, third-degree criminal restraint, third-degree aggravated assault, third-degree terroristic threats, two counts of third-degree possession of a weapon for an unlawful purpose, third-degree criminal mischief, and fourth-degree unlawful taking of a means of conveyance.

On December 17, 1999, defendant appeared in court without counsel. He informed the trial court that he did not want counsel and intended to represent himself. The trial court asked defendant if he understood that he faced a first-degree crime with a maximum penalty of twenty years in prison. Defendant indicated that he understood. The trial court stated that defendant needed a lawyer and one would be available to represent him at his next court appearance.

On March 31, 2000, defendant's attorney informed the court that defendant was dissatisfied with him and wanted to proceed pro se. After advising defendant that it would be a great risk to proceed without counsel, the court scheduled a special hearing to determine if he could proceed pro se. On May 9, 2000, defense counsel moved to withdraw as counsel and the motion was granted. The trial court cautioned defendant to cooperate with any new counsel, read all of the charges, and advised him of the possibility he could be sentenced to more than eighty years in prison. On October 2, 2000, the court held another hearing, at which newly-appointed counsel informed the court that defendant did not want him as counsel. Defendant again told the court that he wanted to proceed pro se, asked for library privileges, and inquired about a motion for a speedy trial he had filed in December 1999. The trial court informed defendant that he would be held to the same standards as a practicing attorney and must comply with the court rules, to which defendant agreed. The court asked defendant if he understood that he would be at a disadvantage and whether he considered all of the factors in making his decision. Defendant replied that he had and that he had spent over thirteen months in the law library preparing for the case. The trial court again explained the range of penalties and defendant again indicated that he understood.

On October 16, 2000, the trial court again reviewed with defendant all of the charges, potential penalties, and some of the possible defenses. Defendant confirmed that he understood. Defense counsel advised defendant of his Fifth Amendment rights. When the court asked defendant if he would follow the procedural and evidentiary rules, defendant said he would, and also requested standby counsel. Having concluded that it had engaged defendant in a thorough inquiry, the trial court granted defendant's request to proceed pro se and, over defendant's objection, appointed his current counsel as standby counsel.

At the November 2000 hearing defendant again sought to remove standby counsel, asserting that he was not receiving effective assistance from him. The court reminded defendant of the exhaustive questioning on his motion to proceed pro se, that defendant had assured the court he understood what he was doing, and that he voluntarily wanted to represent himself. Defendant claimed that his standby counsel had a possible conflict of interest because of his representation of another inmate in defendant's cellblock. Defendant agreed to contact the Public Defender's Office about the potential conflict.

Defendant represented himself during the ensuing trial, with standby counsel at his side. The two conferred on various occasions during trial. The jury ultimately found defendant guilty of: burglary, aggravated sexual assault, sexual assault, assault, possession of a weapon for an unlawful purpose, criminal mischief, and taking a means of conveyance. The trial court imposed an aggregate sixteen-year term of imprisonment with an eighty-five percent period of parole ineligibility.

Defendant appealed, claiming, among other things, that the trial court erred by granting his request to proceed pro se because it improperly determined that his waiver was knowing and intelligent. The Appellate Division agreed and reversed defendant's conviction in an unpublished opinion. The panel held that the trial court failed to explain to defendant the technical problems that might arise from self-representation and that it would not be advisable to proceed without counsel. Furthermore, the panel disapproved of the trial court questioning defendant concerning his desire to proceed pro se in several proceedings rather than in one.

The Supreme Court granted the State's petition for certification.

HELD: The record amply demonstrates that defendant was sufficiently informed to knowingly and intelligently waive his right to counsel. Our careful review of the record satisfies us that the trial court did not abuse its discretion in finding that defendant knowingly and intelligently waived his right to counsel.

1. Defendant possesses both the right to counsel and the right to proceed to trial without counsel. In Faretta v. California, the United States Supreme Court held that the Sixth Amendment, which applies to the states via the Fourteenth Amendment, gives criminal defendants the right to proceed without counsel when they voluntarily and intelligently elect to do so. 422 U.S. 806 (1975). The Court also emphasized that trial courts must ensure that a defendant's decision is reasonably informed. Additionally, the Court declared that the trial court may appoint standby counsel to assist the pro se defendant. When determining whether a waiver of counsel is knowing and intelligent, trial courts must inform defendants of: (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel. State v. Crisafi, 128 N.J. 499 (1992) Recently, in the context of a death penalty case, we elaborated on the inquiry the trial court should undertake before determining whether to grant a defendant's request for pro se representation. State v. Reddish, 181 N.J. 553 (2004) Reddish added to the Crisafi inquiry that: (1) the discussions should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination. (Pp. 11-16)

2. Preliminarily, we agree with the comment by the Appellate Division that the trial court should engage in the colloquy with defendant in one proceeding to determine whether a waiver of counsel is knowing and intelligent. Nevertheless, in this case, in light of the numerous pre-trial hearings, defendant's firm desire throughout to proceed without counsel, and his several requests to remove his counsel, we find it appropriate to consider all the pre-trial hearings together to determine whether the trial court engaged in the required exchange with defendant before finding his waiver was knowing and intelligent. The trial court hearings held on October 2, October 16, and November 2, 2000 in large measure satisfied the Crisafi requirements: 1) The record shows that defendant understood the charges, defenses, and possible punishment; 2) the trial court discussed some of the problems of self-representation, including the negative perceptions the jurors might form of defendant, and defense counsel advised defendant of his Fifth Amendment rights; 3) the trial court addressed defendant in respect of compliance with court rules and procedures; 4) the trial court repeatedly impressed on defendant his need for legal assistance, which effectively conveyed the message that a lack of legal knowledge could impair his defense; 5) although the trial court should have continued to question defendant to remove any doubt that defendant understood that if he were to proceed pro se, his conduct might have an adverse effect on his defense, including his right to remain silent and his privilege against self-incrimination, the court satisfied, albeit not completely, the "impact of dual role on defense" requirement; and (6) the trial court properly indicated to defendant that proceeding pro se was inadvisable and defendant's request for standby counsel is evidence that he understood the trial court's concerns. (Pp. 17-22)

3. Because the trial court did not fairly explain the problems that defendant would face in his dual role of attorney and client, and could not have anticipated our decision in Reddish, the thorough exchanges required under Crisafi and Reddish were not satisfied. However, we continue to adhere to our declaration in Crisafi that the failure of the trial court to engage in a thorough exchange with defendant does not end our inquiry. Defendant's background, his work ethic, and his unshakeable determination to represent himself evidenced that he understood the risks involved and chose to proceed pro se with his eyes wide open. And although we agree with the Appellate Division that the trial court should discuss with defendant all of the necessary requirements and admonitions in one proceeding, we do not find that shortcoming fatal. We conclude that the failure to address all of the Crisafi factors in one proceeding, if error, was harmless beyond a reasonable doubt. R. 2:10-2. The trial court was in the best position to evaluate defendant's understanding of what it meant to represent himself and whether defendant's decision to proceed pro se was knowing and intelligent. The record amply demonstrates that defendant was sufficiently informed to knowingly and intelligently waive his right to counsel. Our careful review of the record satisfies us that the trial court did not abuse its discretion in finding that defendant knowingly and intelligently waived his right to counsel. (Pp. 22-26)

The judgment of the Appellate Division is REVERSED, the judgment of conviction is REINSTATED, and the matter is REMANDED to the Appellate Division to address any issues raised before the Appellate Division that were not reached.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.,

Argued October 30, 2006

In this criminal proceeding, the trial court found that defendant knowingly and intelligently waived his right to counsel and permitted defendant to act as his own attorney with standby counsel. At trial, a jury ultimately found defendant guilty of multiple charges. On appeal, the Appellate Division reversed the convictions because it found the trial court failed to inform defendant fully of the risks created by self-representation. We granted the State's petition for certification, 186 N.J. 366 (2006), and now reverse, reinstate the judgment of conviction, and remand to the Appellate Division.

I.

A.

We need not recite the facts at length. On August 19, 1999, around 11:00 a.m., Amal Brohmi entered her apartment and was immediately confronted by her ex-husband, defendant Pascal DuBois. Defendant then threw Brohmi on the sofa, ripped off her dress, bound her hands, taped her mouth shut, and cut off her undergarments. While holding Brohmi down, defendant put a knife against her throat and sexually assaulted her. When defendant subsequently stepped into the bathroom, Brohmi escaped from the apartment. Defendant then left the apartment and drove off in Brohmi's car. Brohmi called the police from a neighbor's apartment.

Patrolman Patrick English of the Highland Park Police Department responded to the scene. Brohmi informed English that defendant had assaulted her and taken her car. Detective William Ducca obtained a statement from Brohmi and arranged for her to visit the Rape Crisis Center at Roosevelt Hospital. Brohmi advised Ducca that defendant resided in an apartment in Weehawken. The next day the police arrested defendant at his apartment.

Defendant was indicted for second-degree burglary, N.J.S.A. 2C:18-2; two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); third-degree terroristic threats, N.J.S.A. 2C:12-3b; two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree criminal mischief, N.J.S.A. 2C:17-3a(1); and fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b.

B.

We review in some detail the pretrial proceedings. On December 17, 1999, several months after his arrest, defendant appeared in court without counsel. He informed the trial court that he did not want counsel and intended to represent himself. The trial court asked defendant if he understood that he faced a first-degree crime with a maximum penalty of twenty years in prison. Defendant indicated that he understood. The trial court stated that defendant needed a lawyer and one would be available to represent him at his next court appearance.

Counsel was then assigned to represent defendant. On March 31, 2000, however, defendant's attorney informed the court that defendant was dissatisfied with him and wanted to proceed pro se. The court emphasized to defendant that while he appeared to be very intelligent and well-educated, it would be a great risk to proceed without counsel. Defendant insisted that he was willing to take the chance. The court then scheduled a special hearing to determine if defendant could proceed pro se.

At a hearing on May 9, 2000, defense counsel announced that his relationship with defendant had deteriorated to the point that he could no longer represent defendant. The trial court granted counsel's motion to withdraw. The court then cautioned defendant to cooperate with any new counsel, noting that defendant's pro se papers demonstrated that he had "absolutely no understanding of what's going on in this case, or how the system works." The court then read all of ...


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