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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 - Decided February 8, 2007 - Remanded by Supreme Court June 1, 2007 - Resubmitted June 1, 2007
Before Judges Cuff, Fuentes and Baxter.
On June 1, 2007, the Supreme Court remanded this matter to us for reconsideration in light of its opinion in State v. DuBois, 189 N.J. 454 (2007). In an unpublished decision rendered on February 8, 2007, we reversed defendant's conviction, holding that his waiver of his Sixth Amendment right to counsel was not done knowingly, intelligently and voluntarily. State v. Vaughn, No. A-5953-04 (App. Div. February 8, 2007) (slip op. at 4). Thereafter, the State filed a petition for certification, and the Court summarily remanded for reconsideration in light of its opinion in DuBois.
Our reversal of defendant's conviction resulted from our conclusion that the trial court did not explain to defendant enough about the specific hazards he faced in representing himself so as to enable him to fully appreciate the risk he was taking by waiving his right to counsel. We held that no more than a "fleeting discussion" was ever held at either of the two waiver hearings about the nature of the thirteen-count robbery indictment defendant faced. Vaughn, supra, slip op. at 17. Specifically, we observed that the judge never advised defendant that he was charged with an armed robbery of four victims during three separate incidents; that he could be required to serve eighty-five percent of any sentence without parole; 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 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. Id. at 17-18.
We further determined that the waiver hearing did not include any discussion by the judge of the elements of the offense of robbery or possible defenses to that charge. Ibid. For those reasons, we held that "[t]he record is devoid of any evidence that the defendant was ever made aware of any of the particular difficulties . . . that faced him in this exceedingly difficult robbery trial," and we reversed defendant's conviction because of our "grave concern" about whether this particular defendant waived counsel knowingly. Id. at 18.
Our opinion recognized that a trial judge's failure to properly conduct a Crisafi*fn2 hearing "does not end the court's inquiry whether a defendant has waived counsel knowingly and intelligently." Ibid. (quoting Crisafi, supra, 128 N.J. at 512). We held that the ultimate focus must be on a defendant's actual understanding of the waiver of counsel and even if the colloquy is inadequate, the conviction should be upheld if the defendant knowingly and voluntarily waived his right to counsel. Id. at 18. Our review of the record led us to conclude that defendant did not present 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 Crisafi, supra, commands. Id. at 19 (quoting Crisafi, 128 N.J. at 513).
In DuBois, the Court held that even though the colloquy at the waiver hearing was deficient in some respects, the record as a whole demonstrated that the defendant's waiver of his right to counsel was done knowingly and that any deficiencies in the colloquy were harmless in light of defendant's background, his work ethic and defendant's answers to several open-ended questions that demonstrated his clear understanding of the risks of proceeding without counsel. DuBois, supra, 189 N.J. at 473-75.
On remand, the State argues that our reversal of defendant's conviction was error because "when viewed in its totality, the record below demonstrates that the defendant understood the nature of his decision to represent himself at trial." The State further argues that our opinion failed to give sufficient consideration to defendant's actual experience in representing himself at a prior jury trial on an unrelated indictment in which he was acquitted. Finally, the State argues that our determination that the trial judge erred by not discussing with defendant the "case-specific difficulties" that he would face in a robbery trial "is not a requirement that can be read into Crisafi or DuBois," and that we accordingly subjected the Crisafi waiver hearing to an unreasonably high standard. For those reasons, the State urges us to conclude that the trial judge did not abuse his discretion when he accepted defendant's waiver of counsel, and requests that defendant's conviction be reinstated.
Defendant, in turn, argues that our decision properly applied the standards established by Crisafi. He further argues that nothing in the Court's opinion in DuBois should cause us to reverse our prior decision. We have fully considered the arguments of both parties, have evaluated our opinion in light of the Court's decision in DuBois, and conclude that the State's arguments lack merit and that nothing in the Court's opinion in DuBois warrants a result different from the one we reached in our original opinion.
We reach that conclusion because the deficiencies in the Crisafi waiver hearing that the Court identified in DuBois, supra, 189 N.J. at 472-73, were far less pervasive and of less significance than those here. In DuBois, the Court reviewed the six topics that a trial judge must discuss with a defendant before a waiver of counsel can be deemed knowing and intelligent. Those elements are: "(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 ...