January 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD W. JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-02-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges S.L. Reisner and Baxter.
Defendant Richard W. Johnson appeals from his November 20, 2005 conviction on one count of second-degree robbery, N.J.S.A. 2C:15-1(a)(2). After granting the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), the court sentenced defendant to a twelve-year term of imprisonment, with eighty-five percent to be served before becoming eligible for parole. Appropriate fines and penalties were imposed. We affirm the conviction and remand the sentence for reconsideration in light of State v. Pierce, 188 N.J. 155 (2006).
On December 13, 2002, a man handed a bank teller at the Fleet Bank in North Plainfield a note demanding that she give him money. He threatened to hurt her or someone else if she did not cooperate. The teller gave the man $100 in singles from her cash drawer. Not satisfied, the man stated he wanted "large" bills, after which the teller gave defendant all of the currency that was in her cash drawer. He placed the money in a small black case and exited the bank. The teller later provided police with a description of the robber and his clothing. Subsequent police investigation resulted in the arrest of defendant on February 1, 2003.
After being advised of his rights, defendant provided police with a formal statement, in which he admitted that he had robbed the bank. Three days later, on February 4, 2003, defendant provided an additional taped statement after again waiving his rights. In his second statement, defendant explained that a friend named McCloud Bellevue drove him to the bank, that he shared the proceeds with Bellevue and gave fifty dollars to a female who had accompanied the two.
Prior to trial, defendant filed a motion to dispense with counsel and represent himself at trial. After a hearing on that motion on October 21, 2004, the judge granted defendant's motion to represent himself.
Subsequently, on March 9 and 28, 2005, a hearing was held on the State's motion to redact portions of defendant's taped statements. The court granted the State's requests, but only some of defendant's.
Trial began on March 28, 2005, and the next day the jury returned a verdict finding defendant guilty of second-degree robbery. Defendant was sentenced on November 29, 2005.
On appeal, defendant presents the following issues for our consideration:
I. THE DEFENDANT DID NOT KNOWINGLY WAIVE HIS RIGHT TO COUNSEL BECAUSE, AFTER HE INDICATED HIS DESIRE TO REPRESENT HIMSELF, THE COURT: (1) MISINFORMED HIM REGARDING THE MAXIMUM SENTENCE HE WAS FACING, AND (2) FAILED TO INFORM HIM OF AVAILABLE DEFENSES AND OTHER FACTS CRITICAL TO A KNOWING AND INTELLIGENT WAIVER OF COUNSEL. U.S. Const. Amend. VI; N.J. Const. Art. 1, ¶ 10.
II. THE DEFENDANT'S STATEMENTS WERE INADEQUATELY REDACTED, THEREBY PERMITTING THE JURORS TO CONCLUDE THAT HE HAD COMMITTED ADDITIONAL BANK ROBBERIES.
III. THE COURT ABUSED ITS DISCRETION IN SENTENCING JOHNSON TO AN EXTENDED TERM AS A PERSISTENT OFFENDER; BUT EVEN IF SUCH A TERM WERE APPROPRIATE, THE SENTENCE IS EXCESSIVE.
We reject the arguments defendant raises in Points I and II. As to Point III, we need not address defendant's argument that his sentence is excessive because we agree with his contention that he is entitled to reconsideration of his sentence in light of State v. Pierce. Accordingly, we remand for reconsideration of sentence.
We begin by analyzing defendant's claim that errors made by the judge during the hearing on defendant's motion to waive counsel and proceed pro se demonstrate that defendant's waiver of his right to counsel was not done knowingly, and he is therefore entitled to a new trial. In support of that contention, defendant asserts that the judge: 1) incorrectly informed him regarding the range of punishment when the judge stated that defendant could not receive a parole disqualifier in excess of 8.5 years; 2) failed to advise him of the possible defenses to the charge of robbery; 3) failed to state the elements of the offense; and 4) failed to correct defendant's statement that he was obliged during his summation to argue to the jury how he had proved his own case.
A "defendant possesses both the right to counsel and the right to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). A defendant should not be permitted to proceed without counsel unless the decision to do so is both knowing and voluntary. Ibid. As the Court observed in DuBois, "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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 466 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)).
In State v. Crisafi, 128 N.J. 499, 511-12 (1992), the Court articulated the factors a trial court must consider in determining whether to permit a defendant to waive counsel. As the Court held in DuBois, when a trial judge applies the Crisafi factors, the judge must inform a defendant 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. [DuBois, supra, 189 N.J. at 467.]
Twelve years after Crisafi was decided, the Court in State v. Reddish, 181 N.J. 553 (2004), added the following requirements to the Crisafi factors: (1) the discussions be open-ended for defendants to express their understanding in their own words; (2) defendants be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination. Id. at 594-95.
We now assess whether the inquiries made of defendant and his responses to those questions were sufficient for the trial court to find that defendant knowingly and intelligently waived his constitutional right to counsel.
The record of the October 21, 2004 proceeding amply demonstrates that the colloquy conducted by the trial judge satisfied the Court's requirement in Crisafi that trial judges conduct a "searching inquiry." Crisafi, supra, 129 N.J. at 510. Because defendant does not challenge the adequacy of the colloquy conducted on the last five of the six Crisafi factors, we need not explore the discussion of those five factors at great length. Suffice it to say, we are satisfied that among other things, the judge ascertained: defendant was not suffering from any drug dependency, drug withdrawal syndrome or mental illness that would interfere with his competency to proceed pro se or that would cause him to question his capacity to make a voluntary choice; defendant understood that he would be obligated to comply "with all the rules and regulations that are required"; defendant was able to distinguish between the "investigative work" involved in preparing for a Miranda hearing and the legal work necessary to represent himself at trial, and defendant consequently concluded that it was in his best interest to allow assigned counsel to represent him at the Miranda hearing, but he could competently handle the trial by himself; defendant had observed the jury selection process in New York; defendant had an Associate's degree in business management; and defendant understood that both the judge and his assigned public defender recommended to him that he not proceed pro se.
Moreover, the judge repeatedly warned defendant of the perils associated with self-representation. Defendant assured the judge that he "ha[s] studied the law," but defendant was quick to acknowledge that his knowledge of the law was certainly not as extensive of that of assigned counsel. At one point, when the judge described the type of defense he believed defendant would present as "[this] is basically . . . a theft, third-degree, not a robbery," defendant agreed with that characterization. Defendant also acknowledged his understanding of the risks of taking the stand, including the possible exposure of his prior record.
During the course of that hearing, defendant eloquently explained his reasons for dispensing with counsel and representing himself. He stated:
[B]eing that I'm the one to be stigmatized . . . I am the one that has to . . . bear the loss[,] I couldn't imagine myself allowing someone else to take on that battle . . . . I am not saying that I am an attorney . . . but I have some knowledge of the law, and I am very expressive, I am not nervous in this endeavor. . . . I just feel I have so much to lose that I could not live with myself if I did not . . . take up this battle.
[T]he bottom line here, we are talking about mens rea intent, mens rea culpability. And who better to argue that than me, myself.
At the end of the hearing, and after defendant agreed that his attorney had advised him on at least a half dozen occasions that self-representation "is not a smart thing to do," the judge held that defendant's waiver of counsel was knowing and voluntary.
It is against the backdrop of this painstakingly thorough hearing that we evaluate defendant's contentions that his waiver of counsel was not voluntary because the judge: misstated defendant's sentencing exposure; did not review the elements of a robbery or discuss the possible defenses; and failed to correct defendant when he stated that during his summation he would discuss not only whether the State proved its case, but also "whether I have proven mine."
While we agree with defendant that the judge inadvertently stated that defendant's maximum sentence was twenty years imprisonment with eight and one-half years without parole, rather than twenty years with seventeen years to be served without parole, nothing in the record or in defendant's brief on appeal even remotely suggests that had defendant been advised of his true sentencing exposure, he would have withdrawn his request to represent himself. Additionally, we note that the actual sentence the judge imposed, twelve years imprisonment, was far less than the twenty-year maximum the judge described.
As to defendant's argument that the judge failed to review the elements of the charge of robbery, we disagree. The judge explained the elements of both robbery and the lesser included offense of theft when he read the statutory definitions of both offenses to defendant verbatim. Defendant demonstrated his knowledge and understanding of the elements of the crime of robbery when he submitted a motion to the judge to amend the charge from robbery to theft. In his motion, defendant argued that the State did not provide any evidence of the force element that is necessary to sustain a robbery conviction and that the charge should therefore be reduced to theft. Unquestionably, defendant well understood the elements of both offenses and the differences between them.
Defendant next complains that the trial court should have informed him of possible defenses to the charge of robbery, especially the intoxication defense. Nothing before the court during the hearing indicated defendant was intoxicated at the time the robbery was committed. Therefore, the judge had no reason to inform defendant of an intoxication defense. A trial judge is not required to provide the defendant with "a complete and detailed forecast of all issues that might potentially arise at trial." State v. Slattery, 239 N.J. Super. 534, 546 (App. Div. 1990).
Nor was there a need for the judge to advise defendant of any possible psychological or psychiatric defenses because during the October 21, 2004 hearing, defendant stated that he did not intend to offer any psychological defense in his case and that he had no psychological disabilities. Thus, the judge's discussion of defendant's position that whatever conduct he engaged in was not a robbery, but was instead a theft, represented a focused and realistic assessment of the defenses available.
Defendant also contends that the trial court did not conduct a proper inquiry to determine whether he had an adequate understanding of the law. In particular, defendant faults the judge's failure to, in effect, cross-examine him about his statement that he had "studied the rules of evidence" and possessed "some knowledge of law." Defendant argues that the judge should have "follow[ed] up by asking [him] about the nature or extent of his studies." Defendant argues that "it would be one thing for [him] to have taken a college course in criminal law and something quite different for him to have simply picked up a book in the law library to read a case cited in his attorney's motion papers. But the court did not follow-up by conducting a probing inquiry on this subject."
Defendant cites no authority for the proposition that a judge is obliged to insist that a defendant elaborate on every book, article or case that he has read. Indeed, to the contrary, the Court has repeatedly emphasized that it is unreasonable to expect that a defendant, who is a layman, will ever have the same knowledge of the law that a lawyer has. DuBois, supra, 189 N.J. at 466 (observing that "a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation").
Defendant's answers to the Court's questions give us no basis upon which to question the veracity of defendant's statements that he had studied the law and observed court proceedings. Nor was the trial judge presented with any basis upon which to disbelieve defendant's statement that he possesses an Associate's degree and had completed two years of college. Under the circumstances, we have been presented with no meritorious basis upon which to conclude that the judge erred when he did not probe further and ask defendant to elaborate on exactly what legal materials he had studied.
Last, defendant argues that his waiver of counsel was not knowing because of the judge's failure to correct defendant's statement about "whether I have proven [my case]." Defendant asserts that because the judge did not correct this misunderstanding, his waiver of counsel was not knowing and intelligent and was therefore invalid. We agree with the State that defendant's argument lacks merit. The record demonstrates that defendant, contrary to his contentions on appeal, clearly understood during the trial that he had no burden of proof. Indeed, during his opening statement, defendant told the jury that:
[t]he State has the burden of proving every element of this offense beyond a reasonable doubt; not one, not two, but each and every single element beyond a reasonable doubt. The presumption of innocence is what each of you are called here to protect today. And each of you are being asked to perform this specific patriotic and humane duty throughout this trial.
To believe in a presumption of innocence, one must wholeheartedly, without prejudice at all times, understand and believe that the defendant, during a criminal trial, must enjoy the right to be presumed innocent--not guilty, but innocent--of all elements of an offense until such time as the burden of proof is met by the prosecution to prove each and every element of that offense and every fact or circumstance essential to the guilt of the defendant.
Anyone charged with a crime--anyone, even you--by law should not have to lift a finger to prove his innocence. Your innocence is expected to be protected by the presumption of innocence, which is backed by the constitution of these United States. (emphasis added).
Unquestionably, defendant, in a straightforward and articulate fashion, demonstrated his understanding that he had no burden of proof. Under those circumstances, the judge's failure to correct defendant does not establish that defendant's waiver of counsel was not done knowingly.
We do not quarrel with defendant's contention that the judge should have corrected defendant when he misspoke and stated that during his summation he would explain whether he proved his case. Nonetheless, we conclude that defendant, despite the failure of the trial judge to correct him, presents the "exceptional case," Crisafi, supra, 128 N.J. at 513, in which a defect in the hearing does not result in a conclusion that defendant did not understand the risks of proceeding pro se. Our review of the transcript demonstrates that defendant was not laboring under a misapprehension of the law, despite his passing comment about "prov[ing]" his case.
Accordingly, we are satisfied that the inquiry conducted by the trial judge amply satisfied the requirements that were first articulated in Crisafi and later affirmed in DuBois.
Defendant next argues that the transcript of his statement to the police was inadequately redacted, thereby enabling the jury to conclude that he had been involved in other robberies prior to the one for which he was on trial. Prior to trial, the State moved to redact portions of defendant's statements of February 1 and February 4, 2003 in order to remove references to other bank robberies defendant had committed. The prosecutor's motion papers outlined the particular redactions that she sought.
Defendant requested additional redactions. In the first one, defendant stated that his co-defendant Bellevue*fn1 called him on several occasions, each time urging him to rob a bank in New Jersey. Although the judge agreed that the reference to "New Jersey" should be redacted because it suggested that there may have been robberies in other states, the judge refused to redact the portion of the statement in which defendant commented that Bellevue had called him several times, asking him to commit robberies. Defendant argues that because the judge declined to redact that portion of his statement, jurors "may well have concluded that Johnson had complied with Bellevue's request to commit robberies in addition to the one charged in the indictment." He argues that "[b]ecause other-crimes evidence is extremely prejudicial, the court erred in failing to make the additional redaction."
Defendant also points to a portion of his February 1, 2003 statement in which the detective said "you also told me that you don't bring a weapon with you." (emphasis added). Defendant argues that the word "don't" reflects the reality that Johnson had admitted on February 1, 2003, to committing multiple similar offenses and that his practice was not to bring a weapon with him. He argues that had the North Plainfield robbery been the only robbery he committed, Ciampola would have stated "you didn't bring a weapon with you."
Finally, defendant points to a portion of his February 4, 2003 statement in which the detective asked him "how much money did . . . you give [Bellevue] from that job?" (emphasis added). He contends that the reference to "that" job, as opposed to "the" job, suggested to the jurors that this crime was one of many. In a similar vein, he argues that the detective's remark "you said that [Bellevue] planned our North Plainfield job . . ." again suggests that the robbery in question was one of many.
In reply, the State argues that nothing in any of the quoted portions of defendant's statements suggests to a jury that there was more than one "job" or that defendant complied with Bellevue's request and committed additional robberies. The State further argues that simply because Bellevue called defendant on multiple occasions to request that defendant participate in a robbery does not suggest that defendant actually committed multiple robberies. The State also argues that this portion was necessary to the jury's understanding of other portions of defendant's statement because it provided necessary background information. We agree and conclude that the trial court properly refused defendant's request to redact this portion of his statement.
As to the remaining portions to which defendant objects, we agree with the State that phrases such as "our job," "in your job," "our Fleet Bank," and "that job" would not be understood by a jury as referring to more than one "job" or robbery, once the explicit references to the other robberies were, in accordance with the court's ruling, redacted. Because the jury did not hear about defendant's other robberies, the use of these phrases would not have suggested to a jury that defendant committed other crimes. As to the use of the phrase "you don't bring a weapon," we agree with the State's argument that the verb tense in question could as readily apply to the day in question rather than a pattern and practice of not bringing a weapon to other robberies.
We review a judge's evidentiary decisions for an abuse of discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We find no abuse of discretion in the judge's handling of the redaction of defendant's February 1 and February 4, 2003 statements. When those comments are read in the context of the redacted statements heard by the jury, they do not suggest defendant committed other crimes. Accordingly, the portions defendant challenges were not prejudicial and provide no basis for reversal of defendant's conviction.
In Point III, defendant argues that the court abused its sentencing discretion when it granted the State's motion to sentence him to an extended term of imprisonment as a persistent offender. When the judge granted the State's motion, he did so by applying the standards that were established in State v. Dunbar, 108 N.J. 80 (1987). In State v. Pierce, supra, 188 N.J. at 170-72, the Court invalidated the Dunbar procedures and developed a new standard for evaluation of a motion to sentence a defendant to an extended term of imprisonment. Ibid. At the time defendant was sentenced, Pierce had not yet been decided. The State concedes, and we agree, that defendant is entitled to a sentencing remand during which the judge should evaluate the State's motion by applying the Pierce criteria.
Defendant's conviction is affirmed. The sentence is remanded for reconsideration in light of State v. Pierce.