On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-06-1142.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino, and Alvarez.
Following a trial by jury, defendant, Donald Boyd, was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (counts one and two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); first-degree aggravated sexual assault during a kidnapping, N.J.S.A. 2C:14-2(a)(3) (counts four and five); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count six); first-degree aggravated assault during a burglary, N.J.S.A. 2C:14-2(a)(3) (counts seven and eight); second-degree burglary, N.J.S.A. 2C:18-2 (count nine); first-degree aggravated sexual assault during a robbery, N.J.S.A. 2C:14-2(a)(3) (counts ten and eleven); first-degree robbery, N.J.S.A. 2C:15-1 (count twelve); first-degree aggravated sexual assault while armed with a knife, N.J.S.A. 2C:14-2(a)(4) (counts thirteen and fourteen); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count fifteen).
The trial judge granted the State's motion to sentence defendant as a discretionary extended-term offender, N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(2), and imposed a sentence of life subject to the No Early Release Act (NERA) on count one, first-degree aggravated sexual assault. A consecutive sentence of thirty years subject to NERA was imposed on count six, first-degree kidnapping. The sentences for counts two, four, five, seven, eight, ten, eleven, thirteen, and fourteen were all made concurrent to count one, and on each defendant received twenty years subject to NERA. Count fifteen was made concurrent to count one, and a sentence of five years imprisonment was imposed. The sentences for the two remaining additional counts were run consecutive to count one, ten years subject to NERA on count nine, and twenty years subject to NERA on count twelve. All sentences were to be served consecutive to an unrelated Bergen County sentence, but concurrent to an unrelated Hudson County sentence. On the day of sentencing, defendant's probation on two other indictments was terminated with credit for time served. Appropriate fees and penalties were also imposed on this indictment. Defendant appeals, and we affirm the judgment of conviction, but remand for resentencing in accord with State v. Pierce, 188 N.J. 155 (2006), and State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
On the evening of March 8, 2002, T.M. and her former boyfriend, Paul Donnelly, spoke on the phone and arranged for him to come over to her apartment the following morning. The two had recently ended their dating relationship, and T.M. wanted Donnelly to remove the last of his belongings. Donnelly, defendant, and a third man were drinking at Donnelly's mother's apartment that evening, and Donnelly fell asleep at 4:30 a.m. Donnelly allowed defendant to spend the night, and when Donnelly woke early the next afternoon, his keys, pickup truck, and defendant were missing. Donnelly attempted to call T.M., to explain that he had been delayed, but her line was busy.
At approximately 10:30 a.m., T.M.'s apartment bell rang, and she heard a voice say, "it's me." She "buzzed" the man into the apartment, assuming it was Donnelly. Because T.M. was not feeling well, she returned to her bed. Almost immediately, she felt someone on top of her from behind. As she struggled, she felt her arm break, and heard the person say, "oh, it snapped like a twig." T.M. could not see the man's face, but saw he was wearing a blue sweatshirt and surgical gloves, and saw "a little bit of white skin." She estimated that her attacker was about five feet, ten inches tall, and about 150 pounds. After breaking T.M.'s arm, the assailant put a pillowcase over her head, tied it to her neck with a rope or a wire, tied her arms and legs to the bed, and vaginally and anally raped her. Because T.M. was crying and screaming, the assailant reached under the pillowcase and placed a gag in her mouth. He told her he had a knife and gun, and that he was "never going back to prison." The attacker asked T.M. if she had drugs in her home, and rummaged through the apartment when she told him she did not.
Eventually, the attacker forced T.M. into the shower, head still covered with a pillow case, turned it on, and told her to wash herself. After he left, T.M. remained in the shower for about ten minutes until she was sure the assailant was gone. She climbed out of the tub and ran out into the hallway, banging on the doors of the other apartments on her floor, begging for help. When police arrived, T.M. was in a highly agitated state, pillow case still around her head, a piece of string or lace tied around one leg, and a telephone cord wrapped around her broken arm. T.M. was pacing and crying, saying over and over, "I've been raped." She was taken to a nearby hospital, where a pin and six screws were required to surgically repair her broken arm.
Defendant returned Donnelly's truck that afternoon. Donnelly noticed that defendant's face was drawn, that he was "sweaty, very nervous, agitated, and couldn't sit still." When Donnelly received a call informing him that T.M. had been raped, defendant "[u]p and left without a word."
During the trial, a forensic scientist with the New Jersey State Police testified that defendant was the source of DNA found on T.M., "within a reasonable degree of medical certainty." She said: "[t]he primary DNA profile obtained from the specimen occurs in approximately one in 3.89 quadrillion of the African-American population, one in 5.75 quadrillion of the Caucasion population, and one in 2.52 quadrillion of the Hispanic population."
Approximately a month before the trial was scheduled to begin, defendant sought to discharge his attorney and represent himself. After a lengthy Crisafi/Reddish*fn1 hearing, the court permitted defendant to do so, but designated his former defense attorney to serve as standby counsel. During the hearing, defendant denied ever receiving treatment for a mental health disorder, and asserted that his only physical ailments were high blood pressure and arthritis. He was then forty-two years old, had obtained a GED, and claimed to have spent months while incarcerated preparing for the trial. Defendant asked the court to order that he be allowed extra time in the law library, which request the judge granted. Defendant assured the court he had spent many hours training in criminal law, and said he had "been doing this for years." He owned a few Gann law books, including the Criminal Code.
Pre-trial, defendant consented to have standby counsel conduct jury selection. The judge also ruled, over defendant's objection, that he could not directly cross-examine T.M., rather, that he had to use standby counsel as a "conduit" for his questions.
On the second day of trial, defendant requested that standby counsel take over representation. The judge declined the request. During the trial, while Donnelly was testifying on direct examination, defendant made an obscene gesture at him. The judge issued a cautionary instruction, and the trial continued.
Defendant started his summation with the words, "My name is Donald Boyd. You want to see a man bleed?," and proceeded to cut one of his arms with a sharp object that he had concealed in his mouth. Sheriff's officers immediately took the blade away from defendant, and the judge and jury left the courtroom. After the incident, while standby counsel, the judge and the prosecutor were meeting in chambers, standby counsel was directed to leave by her supervisor, and did not return for the summations. Another attorney from the Office of Public Defender represented defendant at sentencing.
Throughout the trial, in addition to claiming he was becoming ill, either under- or over-medicated, defendant frequently refused to wear civilian clothes, and so appeared before the jury in prison garb. Immediately before the start of the trial, defendant complained about his medication, medical treatment at the jail, and state of mind. In fact, the following exchange took place between the judge, the prosecutor and defendant with reference to an Appellate Division decision regarding one of defendant's convictions which had just been issued:
[Prosecutor:] Yes. I did notice that myself, your Honor, the language in the Appellate Division decision regarding the defendant's claims are identical to the claims here and that court, the Appellate Division, found without merit on those issues.
[The court:] It just came in.
[Defendant:] What case is that, your Honor?
[The court:] Your case when we had the trial and you were found guilty before me. Remember? With [another defense attorney].
[The court:] In that case you argued that you hadn't slept for thirty hours.
[The court:] That's what you argued in this case. And you argued you didn't take your medicine in that case. You argued in this case you didn't take your medicine and you hadn't eaten. That was one of the arguments in that case. That's the same argument you made in this case.
[Prosecutor:] And that he had an altercation in the jail the night before. That was the same argument here. . . . .
[The court:] You argued today the same things that I just read on the computer that you argued in the other case.
Before his summation, defendant explained the reason he did not want to be represented by his public defender as follows: "[a]nd then, and I don't mean to say this prejudicially, but this is one of the richest, whitest communities in the United States of America and you're going to give me a black attorney to represent me? I ain't going that route." Defendant also expressed concern that his attorney did not believe he was innocent.
Defendant raises these points on appeal:
SINCE THE TRIAL COURT'S QUESTIONING OF DEFENDANT WAS INSUFFICIENT REGARDING WAIVER OF COUNSEL AND DEFENDANT WAS NOT TOLD ABOUT UNIQUE LIMITATIONS ON HIS ABILITY TO DEFEND HIMSELF, HIS WAIVER OF COUNSEL WAS INSUFFICIENT THEREBY REQUIRING THE REVERSAL OF HIS CONVICTIONS AND A NEW TRIAL. (NOT RAISED BELOW)
SINCE DEFENDANT WAS DENIED HIS REQUEST FOR FULL REPRESENTATION AFTER THE FIRST DAY OF TRIAL, HIS CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
SINCE THE ROLE OF STANDBY COUNSEL WAS WRONGLY CURTAILED AND DEFENDANT WAS ABANDONED BY STANDBY COUNSEL AFTER HE CUT HIMSELF IN FRONT OF THE JURY DURING SUMMATION, DEFENDANT'S CONVICTIONS MUST BE ...