July 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC E. POTTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 04-12-3036.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2007
Before Judges Payne and Graves.
Defendant Eric E. Potter appeals from his conviction, following a jury trial in June 2005, for third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of heroin with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three). At sentencing, counts one and two were merged into count three, and, because defendant was a repeat drug offender, the court imposed an extended-term sentence of seven years with a three-year parole disqualifier for the school-zone conviction. This term was consecutive to another extended-term sentence of seven years with a three-year parole disqualifier, which we recently affirmed in an unpublished opinion. State v. Potter, No. A-4213-04 (App. Div. June 25, 2007).
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS[.]
THE TRIAL COURT ERRED BY NOT ALLOWING THE DEFENDANT TO REPRESENT HIMSELF.
THE TRIAL COURT ERRED BY RULING THAT THE PRIOR CONVICTIONS OF THE DEFENDANT WOULD BE ADMISSIBLE IF HE TESTIFIED[.]
THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL[.]
THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL[.]
THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.
With respect to defendant's first point, we affirm the denial of defendant's motion to suppress substantially for the reasons articulated by the trial court. However, because we agree with defendant's second point----the trial court erred when it denied defendant's request to represent himself----we vacate defendant's judgment of conviction and remand for a new trial. Accordingly, we do not address defendant's remaining arguments, alleging trial errors and an improper sentence.
In denying defendant's request to represent himself, the trial judge noted he had presided over two other criminal jury trials in which defendant conducted his own defense: Mr. Potter, I'm going to deny your request to go pro se . . . I know you've tried two cases pro se.
THE DEFENDANT: Well, Your Honor, why wasn't I given a hearing in the first place to see if I can -- I wanted to go pro se from the beginning. You came and told me about two weeks [ago] that you weren't going to allow me to go pro se. That's the only reason why I said well, I'll let [my attorney] go ahead until I found out he's going to go about it this way.
THE COURT: I don't know why I would say to you I wouldn't allow it, because you hadn't filed it. But I'm telling you now, now that you've raised it, I'm going to tell you I'm not allowing it and I'm going to tell you why.
Because in your first trial -- and again in preparation for this trial I went back and I looked at the notes. In your first trial, Mr. Potter, you were very respectful to the [c]court. I noted that on the record. And I thought that you gave a cogent and forceful closing argument. And I believe I noted that on the record.
But I also remember the morning of the last day. You were on bail at that time. And I know you smoke cigarettes, right?
DEFENDANT: Yes, sir.
THE COURT: When we were having breaks you would go downstairs and smoke a cigarette.
THE DEFENDANT: Yes, sir.
THE COURT: On the morning of the last break I gave -- you specifically asked when I came to sidebar at time for summation, you asked for a break. I gave a break. I don't know if I gave a 15 or 20 minute break but I know a half hour went by and we couldn't find you. And it was longer than you normally went down to have a cigarette. So when you came back we did the summations and I noted how your summation was. I put it on the record.
But when you were convicted, I had you drug screened because we had the bail issue, isn't that right?
THE DEFENDANT: Yes, sir.
THE COURT: We had the State move to revoke your bail.
THE DEFENDANT: Yes, sir.
THE COURT: So I drug screened you and you came back positive for heroin that day, didn't you?
THE DEFENDANT: Yes, sir.
THE COURT: Now I don't think it affected and I've ruled this way, it didn't affect your performance on your summation, but I'm taking that into account in denying your motion to represent yourself today. And I think in your last trial when you represented yourself, Mr. Potter, I believe I noted on the record that there were times when I thought your cross examination was brilliant.
For example, your cross examination of the expert in the last case elicited from the State's expert that someone like you, your size, could do 30 bags of heroin a day. You asked him that question and he said it's possible you could have a habit like that. . . .
. . . You didn't close that up though for the jury in summation. You focused on bringing Mr. Washburn in, which was another good move, I think, from your perspective in presenting your defense, bringing Mr. Washburn in to establish that the money that the State had originally tried to forfeit, the money that was found on you, was returned to you by the State because they decided it had no relationship to the drugs.
But when you summed up, Mr. Potter, you never tied that into the fact that when the expert said that it was possession with intent, you didn't tie it into, well, they gave me the money back and the expert based part of his opinion on the money that was found. And also the expert said that someone like [you] could be using 30 bags a day. . . .
You never really captured for the jury what you had elicited from the expert and from Mr. Washburn that would have undercut the expert's opinion. And that was a case where there was no testimony about a hand to hand transaction. That was just the bags found on you. Am I right?
THE DEFENDANT: Yes, sir.
THE COURT: And I think that was a serious omission on your part. It causes me or it gives me great concern to allow you to go pro se in this case, where there's an expert opinion to be elicited again.
[T]hroughout all of your trials and your meetings with me you have one thing that you always harp on, which is that there's no probable cause. You're shaking you head yes again, right?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: That goes to legal arguments and motions. It doesn't go to the jury trial.
So it's going to be for the three reasons I'm placing on the record, what happened in the first trial at the summation, my observations in the second trial of what you elicited but then what you failed to tie up for the jury in what was a very triable case from the defense perspective because there was no observation of a hand to hand transaction, and also your focus, your seemingly single-minded focus on the probable cause issues rather than the other issues that are appropriate for the jury.
So for those reasons I'm going to deny your motion.
Defendant contends the trial court's failure "to engage in the questioning and analysis required by our Supreme Court stands as reversible error." See State v. DuBois, 189 N.J. 454 (2007); State v. Reddish, 181 N.J. 553 (2004); State v. Crisafi, 128 N.J. 499 (1992). In a recent appeal, however, we had this to say concerning defendant's claim that he should not have been permitted to act as his own attorney:
Although the trial judge had recently completed another trial in which defendant had represented himself with the same backup counsel, he did not, as a result, foreshorten his discussion of Crisafi/Reddish factors with defendant----a discussion occupying seventy pages of transcript. At the conclusion of the proceeding, the judge found defendant to have knowingly, intelligently and voluntarily determined to proceed pro se.
In that matter, we affirmed defendant's conviction, and, in doing so, stated: "we find no ground to fault the trial judge in what we regard to have been an exemplary and probing examination regarding defendant's understanding of the challenges of self-representation." Thus, there was never any question in the present case whether defendant fully appreciated the risks of proceeding without counsel----he did.
Defendants possess "both the right to counsel and the right to proceed to trial without counsel." DuBois, supra, 189 N.J. at 465. Once a defendant unequivocally expresses a desire to proceed pro se, a court can only deny the request if: (1) defendant does not voluntarily and knowingly waive his right to counsel, Martinez v. Court of Appeal of Cal., 528 U.S. 152, 161- 62, 120 S.Ct. 684, 691, 145 L.Ed. 2d 597, 607 (2000); (2) defendant does not make a timely motion to proceed pro se, ibid.; State v. Figueroa, 186 N.J. 589 (2006) (request made six months before trial was timely); State v. Thomas, 362 N.J. Super. 229 (App. Div.) (request made six weeks before trial was timely), certif. denied, 178 N.J. 249 (2003); State v. Pessolano, 343 N.J. Super. 464, 473 n.4 (App. Div.) (defendant's application denied when made after jury selection, but before opening statements, and judge "was 'certain' defendant's request was 'simply for purposes of delay'"), certif. denied, 170 N.J. 210 (2001); State v. Gallagher, 274 N.J. Super. 285, 291-94 (App. Div. 1994) (request made about twelve weeks before trial was timely); State v. Buhl, 269 N.J. Super. 344, 360-61 (App. Div.) (request made four weeks before trial was timely),*fn1 certif. denied, 135 N.J. 468 (1994); or (3) defendant is unable or unwilling to follow court procedures and rules, McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed. 2d 122, 130 (1984), State v. Drew, 383 N.J. Super. 185, 200 (App. Div.) (The right to proceed pro se properly revoked after defendant outwardly expressed his dissatisfaction with the court's rulings in the presence of the jury, and used inappropriate language.), certif. denied, 187 N.J. 81 (2006). Turning to the first disputed issue, timeliness, defendant made a request to represent himself on the day of trial. My client would like to try this case himself.
THE COURT: Is that true, Mr. Potter?
THE DEFENDANT: Yes, sir.
THE COURT: When did you come to that decision?
THE DEFENDANT: Just after talking to Mr. Eisler [(defendant's attorney)] in the room there, Your Honor.
THE COURT: So you mean just ten minutes ago you decided this.
THE DEFENDANT: Just ten minutes ago.
Defendant contends he always wanted to represent himself, but had already been told it was not an option.
I wanted to go pro se from the beginning. You came and told me about two weeks [ago] that you weren't going to allow me to go pro se. That's the only reason why I said well, I'll let [my attorney] go ahead until I found out he's going to go about it this way.
THE COURT: I don't know why I would say to you I wouldn't allow it, because you hadn't filed it. But I'm going to tell you I'm not allowing it and I'm going to tell you why.
It is clear from this exchange there was some confusion as to when the first request was actually made because neither request was formally filed. The court went on to give its reasons why it would not allow defendant to proceed pro se, none of which indicated timeliness or unnecessary delay was an issue. Moreover, defendant did not ask to adjourn the trial, and the assistant prosecutor, who was handling the case, advised the court he had only two witnesses, Officer Pettway, who testified at the suppression hearing, and the expert. Thus, the anticipated trial evidence was relatively straightforward, and there was no showing defendant's trial would have been delayed if his request for self-representation had been granted. Similarly, we find no basis for concluding there were legitimate concerns regarding defendant's ability or willingness "to abide by rules of procedure or courtroom protocol." McKaskle, 465 U.S. at 173, 104 S.Ct. at 948, 79 L.Ed. 2d at 130. Drew, supra, 383 N.J. Super. at 200; Gallagher, supra, 274 N.J. Super. at 297. Although the court referred to a short delay in defendant's first trial when he failed to promptly return to the courtroom following a recess, and subsequently tested positive for heroin, that incident was obviously not a serious problem or defendant would not have been allowed to represent himself during his second trial before the same judge. Furthermore, as the judge observed and the record confirms, defendant was always "very respectful" to the court. Thus, the record does not support a finding that "defendant was unwilling to abide by rules of procedure and courtroom protocol," as alleged by the State.
The trial court's remaining justifications for denying defendant's motion to proceed pro se concern defendant's ability to "close up" issues for the jury, defendant's fixation with probable cause after its legal relevance had passed, and defendant's aptitude for cross-examination of an expert in front of a jury. Whether defendant has the "'skill and experience of a lawyer,'" however, is inapposite to the issue of whether he can "'competently and intelligently'" decide upon self- representation. State v. Figueroa, 377 N.J. Super. 331, 338 (App. Div. 2005) (quoting Reddish, supra, 181 N.J. at 595), aff'd, 186 N.J. 589 (2006).
We conclude the trial court erred in denying defendant's request to represent himself. Defendant may ultimately conduct his own defense to his own detriment, nevertheless, "[t]he right to defend is personal. The defendant and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally, to decide whether in his particular case counsel is to his advantage." Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540-41, 45 L.Ed. 2d 562, 581 (1975).
Reversed and remanded for a new trial.