August 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD BOYD, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2008
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 REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
SINCE THE TRIAL COURT INTERFERED WITH DEFENDANT'S RIGHT TO CROSS-EXAMINE THE VICTIM BY ORDERING STANDBY COUNSEL TO ACT AS A "CONDUIT," DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
CONSECUTIVE MAXIMUM TERMS OF IMPRISONMENT FOR THE KIDNAPPING, BURGLARY AND ROBBERY CONVICTIONS AS WELL AS THE LIFE-TERM SENTENCE OF IMPRISONMENT FOR AGGRAVATED SEXUAL ASSAULT WERE EXCESSIVE.
Defendant's first contention is that the trial court's questioning of defendant during the course of the Crisafi/Reddish hearing was constitutionally insufficient. We disagree. When faced with a defendant asserting a right of self-representation, the court must inquire as to:
(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 the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination. [State v. DuBois, 189 N.J. 454, 468-69 (2007).]
Certainly, a defendant has a right, pursuant to the Sixth Amendment, to represent himself in criminal proceedings. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed. 2d 562, 574 (1975). The State may not "impose a lawyer on an unwilling defendant," because "[t]he right to defend is personal" and it is defendant and not his lawyer "who will bear the consequences of a conviction." State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994). A searching inquiry is necessary to ensure that defendant's choice is knowing, intelligent, with a full understanding of potential consequences. DuBois, supra, 189 N.J. at 467-69. As recounted below, the trial court, during the Crisafi/Reddish hearing, considered each area of inquiry mandated by DuBois.
1. Nature of Charges and Range of Punishment
Defendant testified that he was familiar with the specific charges contained in the indictment, lesser included offenses, the relevant statutory defenses, and the possible sentencing range. Defendant even explained, unsolicited, that second-degree theft requires the wrongful taking of $75,000 or more.
Although defendant resisted discussion of the sentencing ranges as he insisted he would be acquitted, he did eventually acknowledge the potential sentences, including life imprisonment subject to NERA. Defendant clearly understood that he could be sentenced to an extended term.
2. Technical Problems Associated with Self-Representation
The court painstakingly explained to defendant the negatives of self-representation, including the possibility that a lack of familiarity with the rules might create problems with the admission of evidence, and that defendant might inadvertently waive defenses. During this portion of the hearing, defendant said he had fifteen witnesses he planned to call, as well as a medical expert. The court explained the technical problems defendant would face, but nonetheless, defendant reasserted his belief that he would overcome any technical problems and standby counsel agreed to assist defendant on this score. Standby counsel also stated that she had comprehensively reviewed trial strategy with defendant as well as potential consequences of self-representation. Defendant claimed he fully understood the potential risks.
3. Compliance With Rules of Procedure and Evidence
Defendant acknowledged that he would be bound by court rules of procedure and evidence even if self-represented. He assured the court that he was well-prepared for the trial, and conversant with the relevant rules.
4. Lack of Legal Knowledge Impairing Defense
The court explicitly told defendant that his lack of legal knowledge could impair his defense. In fact, when defendant asked how to subpoena witnesses, the court pointedly responded that these were the types of problems readily avoided by the retention of counsel. Defendant assured the court that he was familiar with courtroom procedures because he had observed several trials, including a death penalty case in Hudson County, in addition to participating in four jury trials of his own.
The court specifically asked defendant, "[o]ne last time, Mr. Boyd, are you sure you want to represent yourself, and you don't want this experienced learned attorney to represent you, and you think you can do a better job than she can?" Defendant's response was an unequivocal "[y]es."
Defendant did agree that defense counsel could conduct the jury selection. It is noteworthy that defendant accurately volunteered, during the discussion about it, that he would be entitled to twenty challenges during the process. See R. 1:8-3.
5. Impact of Dual Role on Defense
The State contended at trial that the right of confrontation did not include the right to personally cross-examine the victim, and the court agreed. Defendant responded, "[t]he court or anybody else isn't going to know those questions that I'm going to need to ask of this victim, only I would." Defendant then told the court that he was "the victim" in the matter, as he was "locked up" for something he did not do. Nonetheless, prior to the start of the victim's testimony, the court ordered that standby counsel question T.M. and that, prior to each question, standby counsel consult with defendant to ensure that all of his questions, in his words, were asked.
6. The Unwise Decision Not to Accept Assistance
In strong terms, the trial court told defendant that proceeding pro se was not advisable. Despite this warning, as the court noted, defendant was not "concerned that his lack of knowledge of the law may impair his ability to defend himself, and that his dual role as attorney and accused might hamper his effectiveness as a defense counsel." Defendant's responses to all the judge's questions established not only familiarity with the law, but the firm conviction that he could obtain an acquittal. The court's repeated expressions of the competence of trial counsel did not shake defendant's confidence that he would do a better job.
During the self-representation hearing, the court repeatedly explained to defendant that the role of standby counsel would be limited to courtroom procedure, jury selection, and the questioning of the victim. The judge told defendant that once the attorney was out of the case, the attorney would stay out of the case, could not advise him, and he could not change his mind about representation.
7. Open-Ended Discussion
The judge engaged in both open-ended discussion as well as a more formal question and answer process. During the earlier portion of the hearing in particular, defendant responded to open-ended questions in a virtual conversation between the court and defendant about defendant's understanding of the process, the potential consequences of his decision to represent himself, and the like. It was during the open-ended portion of the hearing that defendant volunteered that he would be pursuing the defense of self-defense.
8. Knowledge That Self-Representation Does Not Allow for Ineffective Assistance of Counsel Claims
Defendant acknowledged that self-representation meant he could not argue ineffective assistance of counsel if convicted.
9. Ramifications of Self-Representation on Right to Remain Silent and Privilege Against Self-Incrimination
The court also reviewed with defendant the problems that self-representation creates in regards to a defendant's decision to testify, and the risks attendant to asking questions of witnesses in which information might be included which is the equivalent of testimony. In every instance, defendant responded that he understood and was more than ready to move forward.
Given the thorough review of all the areas of inquiry enumerated in DuBois, we find that the questioning of defendant met the Crisafi/Reddish standards. Defendant's waiver of his right to counsel was knowing and intelligent.
Defendant also contends the court's decision not to order standby counsel to resume representation was error. On the second full day of trial, defendant engaged in the following discussion:
[Defendant:] I've got the same problem I've had throughout. I want to put it on the record. I found out yesterday that they supplemented my medication and gave me Prilosec instead of Zantac. I found this out through the nurse that was giving me a pill. I asked her what this was. She told me. I get nervous reactions from Prilosec.
It's a documented nervous reaction from that type of medication. I'm rushing. It's for your ulcers and a bleeding ulcer type infection in your stomach.
I've been taking Zantac for over a year. For them to supplement that medication without telling me, that that's why I can't take that medication. I was never seen by the doctor. The doctor looked at my prison record coming up here. He made the determination the way he did.
On the record, your Honor, for the pain medication I take [it] you can see a scar. If I can use [standby counsel] for a second. She can be my visual aide for the Court.
[Standby counsel:] As to what?
[The court:] I don't know.
[Defendant:] You notice a scar coming up from the tip of my finger, all the way through the finger down the palm of my hand, through the palm all the way to the wrist and up into the arm. Am I correct? That's about a fourteen inch scar all the way through my hand, correct?
[Standby counsel:] I don't know if I can be a witness. I'm sure the Court can take a look at it and see.
[The court:] Leave [standby counsel] out of it.
[Defendant:] I'll hold it up. Maybe you can see it from there. I had tendon surgery a little over a year ago. The tendons in my shoulder, arm is what I take the muscle relaxer and painkillers for it. On top of that - - and that's what they're saying is a need to take medication. On top of that, your Honor, I have had multiple surgeries. I've been declared disabled by a Superior Court Judge in Hudson County on a trial I had, a civil trial I had before Judge Fuentes in 1999 or 2000. I'm not correct on the year. A shatter of my ankle. You can see the scars all the way down. It's deformed. You can see the deformity on both sides. I got screws and pins throughout this that are permanently in here. It's a need to take medication in the jail. I've been in pain since I've come up to Bergen County because I haven't had my medication.
I'll be honest with the Court, your Honor, I don't feel I can do this trial with the way I haven't had my medication. I've been taking this medication constantly everyday for over a year. To be taken off of it, at the start of this case like that, it's reprehensible to my case.
And I would ask and submit to the Court that because of this I would ask that [standby counsel] take over and do the rest of the trial. I just want this on the record.
Our review of the record indicates that defendant had been seen at the jail by a nurse, and was receiving the blood-pressure medication that he testified he required during the self-representation hearing. Defendant also said that his blood pressure had not been taken since he was in the Bergen County jail. In response to defendant's complaints, the court said, standby counsel cannot just take over because how do you get a public defender, which she is. You would have to then fill out a new form and they will have to determine if you even - - if they even want to represent you because you fired them already. They may not want to come back in the case. You can get your own attorney.
Later on, the following exchange occurred:
[Defendant:] Can I ask the Court a question please? What does standby counsel mean?
[The court:] Just in the event there's a problem to help with the voir dire for the jury and to help you with the cross-examination.
Now she's done. That was the only reason why. Now she's here, she's standing by in the event - -
[Prosecutor:] For procedure, Judge. Not to take over. He made a decision. He has to live with it.
[The court:] In the event you stray or you don't know what to do or something, then I'll let you confer with her or if I find that you're totally lost with the trial then -- but she's not your attorney.
[Defendant:] You could have made that decision yesterday, that I was totally lost on the cross-examination.
[The court:] No, I couldn't do that because it was your choice. You wanted to do this. You told me how competent you are, how confident and competent you are. And that's what it is.
In the ordinary case, where standby counsel has been present in court, and where no delay greater than a day or two would result from the resumption of representation, the request that standby counsel resume representation should be granted if the reasons for the change of heart are substantial. In this instance, however, once having insisted on his right of self-representation, defendant cannot whiplash the system by a change of heart based on unsubstantiated claims related to his health. This defendant was not requesting that standby counsel represent him because he had decided that an attorney would do a better job, or that he could not handle self-representation. This defendant was requesting that standby counsel step in because of alleged physical problems which, prior to the start of the trial, he did not fully disclose.
Neither defendant nor the State point to a published case in our jurisdiction on that point. In United States v. Solina, 733 F.2d 1208, 1211 (7th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 519, 83 L.Ed. 2d 408 (1984), the defendant asked on the day of trial that standby counsel to take over representation. Standby counsel then asked for a continuance so that he could prepare for trial. Ibid. The Seventh Circuit found that the trial judge was acting within his discretion when he denied the continuance, and did not permit standby counsel to take over. Ibid. The court explained that
[a] criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that the judge will hold him to his original decision in order to avoid the disruption of the court's schedule that a continuance granted on the very day that trial is scheduled to begin is bound to cause. [Id. at 1211-12.]
In addressing a similar situation, the New York Appellate Division "conclude[d] that the [trial] court did not err in denying defendant's request for a continuance so that standby counsel could take over the defense. Defendant's request was made on the day of trial and appeared to be nothing more than a delaying tactic." People v. Fagan, 784 N.Y.S.2d 774, 775-76 (N.Y. App. Div. 2004).
In this case, the court had every reason to doubt the legitimacy of the request. Defendant had already expressed his complete lack of confidence in standby counsel because she did not believe in his innocence. His stated reason for wanting her to represent him was his amorphous medical complaints. These complaints were not believed by the judge, and given this record, do not appear credible to us either. Defendant's change of heart was not driven by the realization that he could not effectively proceed without counsel. This particular defendant, who was doing virtually everything within his power to make a smoothly-progressing trial an impossibility, may have thought he found a new way to disrupt the proceedings. Such an illegitimate epiphany does not require judicial accommodation.
In order for the trial judge's decision, in this scenario, to constitute an abuse of discretion, a manifest denial of justice must have occurred. State v. Marrero, 148 N.J. 469, 484 (1997). In this case, where the proofs were overwhelming, where defendant had a vested interest in disrupting and delaying the process, and a track record of doing so, it was not a manifest injustice for the court to have required defendant to continue with self-representation. The judge had no reason to believe that if standby counsel was permitted to resume representation, and defendant began to "feel better," that he would not again wish to resume self-representation. The judge based his refusal on the lack of legitimacy of defendant's reasons, a reasonable exercise of discretion given defendant's conduct throughout.
Defendant also asserts that it was error for the court to have "curtailed" standby counsel's participation, and that because standby counsel left the court house after defendant cut himself in front of the jury, the conviction must be reversed. We do not agree that counsel's role was curtailed by the court.
"Standby counsel is appointed for two main purposes: to act as a 'safety net' to insure that the litigant receives a fair hearing and to allow the trial to proceed without the undue delays likely to arise when a layperson represents his own case." State v. Ortisi, 308 N.J. Super. 573, 591 (App. Div.) (quoting United States v. Bertoli, 994 F.2d 1002, 1018-19 (3d Cir. 1993)), certif. denied, 156 N.J. 383 (1998).
Defendant argues that he asked for standby counsel's assistance in summation, however, what actually happened was as follows:
[The court:] Today is summation if you want to. Do you want to sum up today?
[Defendant:] I'd rather have somebody else sum up for me.
[The court:] There's nobody else. You don't have a lawyer.
[Defendant:] I noticed. I was supposed to have a lawyer help me with this case but your Honor refused it.
The judge then explained on the record that standby counsel, stepped in numerous times during this trial. More than standby counsel would have done.
In fact, yesterday there was long pauses during the trial to allow you [to] confer with her which you did on numerous occasions during the trial but never once were you told she was your lawyer.
Defendant has not brought a single instance to our attention where he requested standby counsel's advice and was refused. Counsel was present in the courtroom, throughout the trial until summation, assisted defendant with all his requests, including procuring the services of a medical expert who testified in his behalf about the victim's bruises. As standby counsel, she fulfilled her role without restriction.
During the sentencing hearing, the judge quoted the Adult Diagnostic and Treatment Center at Avenel report indicating that defendant admitted cutting himself in front of the jury with a razor blade "maybe to hurt himself, maybe to get a mistrial." Despite the absence of standby counsel, and the drama of the prior day, defendant finished his closing statement, such as it was. Although standby counsel's departure from the courtroom was unfortunate, her role had ended.*fn2 Her departure was not witnessed by the jury. In fact, in summation, defendant managed to present to the jury his theory that his cell phone records and the records of the victim somehow established an alibi defense despite the fact he did not testify, and had been instructed repeatedly not to make those representations to the jury in closing.
It is ironic that on appeal defendant argues that standby counsel's departure prejudiced him when at trial he objected that her services were unnecessary and unworthy. For example, defendant actually told the judge that he had been deliberately assigned counsel who was African-American in order to ensure his conviction. In any event, defendant does not explain how the attorney's absence during summation prejudiced him. Defendant's summation consisted of complaints about the evidence he was kept from producing at trial, and his improper description to the jury of that inadmissible evidence. Defendant actually waived his right to be present in the courtroom while the prosecutor delivered her closing statement. No error in the State's closing is asserted. In any event, by leaving the courtroom during the State's closing, defendant effectively waived any objection to the absence of standby counsel for this portion of the trial.
Although on appeal defendant objects to the failure of the court to direct counsel to resume representation, he also objects to her acting as a "conduit" for defendant's cross-examination of the victim. Defendant was offered the choice of communicating his questions to standby counsel through headphones, or of sitting next to standby counsel and providing her directly with the questions he wanted posed to the victim. Defendant chose to have standby counsel sit next to him, and defendant wrote many pages of questions, all of which standby counsel asked. The judge ordered the procedure because he considered it "unreasonable" to expose the victim to the psychological impact of direct examination by a man which DNA evidence established as the rapist. This procedure should not ordinarily be employed in the absence of a hearing. Although in substance, defendant continued to exercise total control of his defense, no record was developed to establish a particularized need for this victim to be questioned in this manner.
Our Court has said that "a pro se defendant 'must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.'" State v. Davenport, 177 N.J. 288, 300 (2003) (quoting McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 949, 79 L.Ed. 2d 122, 131 (1984)). "[T]he objectives of pro se representation - 'the dignity and autonomy of the accused' and 'the presentation of what may, at least occasionally, be the accused's best possible defense' - can be achieved 'without categorically silencing standby counsel.'" Ibid. (quoting McKaskle, supra, 465 U.S. at 176-77, 104 S.Ct. at 950, 79 L.Ed. 2d at 132). "To determine whether a defendant's Faretta right has been respected, 'the primary focus must be on whether the defendant had a fair chance to present his case in his own way . . . . The specific rights to make his voice heard . . . form the core of a defendant's right of self-representation.'" Id. at 301 (alterations in original) (quoting McKaskle, supra, 465 U.S. at 177, 104 S.Ct. at 950, 79 L.Ed. 2d at 132).
Defendant was able, however, through the use of this method, to ask every question that he wanted. Because of the unique process, it would be clear that defendant continued to represent himself, and that he and he alone, controlled the cross-examination.
The jury would have observed defendant's extensive notes as the cross-examination was proceeding, and the fact that standby counsel was asking questions given to her by defendant. Defendant was not permitted to "confront" his accuser only in the most literal meaning of the term. The right of confrontation does not mean the right to face-to-face confrontation; rather, it means that a party must have a meaningful opportunity, through the legal process, to cross-examine witnesses. State v. Budis, 125 N.J. 519, 530-32 (1991); see Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed. 2d 15, 19 (1985) (Confrontation Clause guarantees the "opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.").
In the middle of cross-examination of the victim, defendant sought a postponement on the grounds that he was not feeling well. This assertion by defendant of medical problems as necessitating a delay in the trial has been previously addressed in State v. Boyd, No. A-5564-04 (App. Div. Apr. 27, 2006) (slip op. at 3). In fact, in that opinion affirming his conviction, we noted that defendant complained "that he had not received his blood pressure medication and had not slept or eaten in thirty hours." Ibid.
Even if this cross-examination procedure was, as defendant contends, constitutional error, we believe it was harmless beyond a reasonable doubt. State v. Ingram, ____ N.J. ___, ____ (2008) (slip op. at 32). In regards to constitutional errors, "'[t]he harmless error standard . . . requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" Id. at 32-33 (alterations in original and internal quotations omitted) (quoting State v. R.B., 183 N.J. 308, 330 (2005)). Given the strength of the proofs, this cross-examination procedure raises no such doubt.
Defendant and the State agree that the sentence imposed violates Pierce, supra, 188 N.J. 155. A remand is appropriate, however, not just as to that issue, but as to Yarbough, supra, 100 N.J. 627, as well. Defendant was sentenced to four consecutive terms without explanation. See State v. Molina, 168 N.J. 436, 442-43 (2001). The sentence is hereby vacated, and the matter remanded for reconsideration.
In this case, where the DNA and circumstantial evidence were overwhelming, it is not surprising that this particular defendant would have chosen self-representation. We cannot conclude, in light of the compelling proofs of guilt and the distinctive circumstances here, that defendant is entitled on any issue, or on all of them in combination, to a new trial. Throughout the trial and trial proceedings, defendant attempted to hijack the judicial process and manufacture issues that might produce a mistrial, or cause a post-verdict reversal of the outcome. Defendant's asserted harms are predominantly self-inflicted, as is poignantly exemplified by the act of slashing his arm with a concealed blade while summing up. The trial judge endeavored to manage the courtroom, and deal with defendant's unpredictable behavior, in a reasonable fashion given the decision to allow defendant to represent himself.
Accordingly, the matter is remanded for re-sentencing in accordance with this opinion. In all other respects, the judgments of defendant's convictions are affirmed. We do not retain jurisdiction.