March 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCUS SANDERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-12-2772.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Fuentes and Chambers.
Defendant Marcus Sanders was convicted of fourth degree stalking, N.J.S.A. 2C:12-10, (count one); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); third degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four); and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five).*fn1 He received an aggregate sentence of twenty-one and one-half years and was assessed the requisite monetary penalties and fees. He appeals his conviction and sentence.
The convictions arise from the following series of events. On August 8, 2005, defendant, thirty-five years old at the time, began a verbal confrontation with a twelve year old girl, K.W. in a local food market. He first told her to "move out of my fucking way," calling her a "bitch" and "slut" and grabbing her arm. When the store owner told him to stop, he did. Outside of the store, defendant continued to grab her arm, telling her to "fucking come here." The police arrived, and defendant was told to leave which he did, telling K.W. that he would snap her neck. The next time K.W. saw defendant, she was riding her bike. Defendant pulled his car alongside of her and said "Yeah, you don't know when I'm watching you, your days are numbered, I'm going to get you, I make it my promise." He then drove behind her tapping the wheel of her bike twice with his car, although she did not fall off the bike. Later that same day, defendant pulled up by K.W. in a parking lot and once again threatened her stating, "I'm not fucking playing with you, I'm going to get you, I promise." On a third day, defendant again confronted K.W. while she was walking with her five year old sister. He threatened to get her. She called the police. On a fourth occasion, defendant followed K.W. and her cousin down the street and fled when K.W.'s mother appeared.
On August 30, 2005, after these four encounters had occurred, K.W., her mother, and other family members were outside of K.W.'s home, when James Handy, defendant's half brother came by. K.W.'s mother told him that she wanted to talk to defendant in order to ask him to leave K.W. alone. Handy then used his cell phone to call defendant. Defendant refused to speak to the mother; he then immediately drove to K.W.'s house, arriving only a few seconds after the call. Upon exiting the vehicle, defendant said "You don't call me with this bullshit, I'm going to kill you and that bitch." He then brandished a knife, heading toward K.W. When Handy intercepted defendant, defendant threatened to kill Handy and then pursued him with the knife. Defendant stabbed Handy multiple times. While in the hospital, Handy told the police that four young men had stabbed him for no reason. However, upon release from the hospital and after talking to his mother, he advised the police that defendant had done the stabbing. He explained at trial that he initially provided the police with an incorrect statement because he did not want to get his brother into trouble.
At a hearing on May 22, 2006, defendant objected to representation by the assistant deputy public defender present and indicated that he would represent himself. Defendant claimed that he had studied law, that he was a certified paralegal, and that he passed the bar in Florida through the United States Army, although there are no records to support this assertion. He said that he did not want anyone from the Monmouth County Public Defender's Office representing him, contending that the Office had violated his constitutional rights in the past. The trial court indicated that it would find out if the Public Defender's Office would appoint a pool attorney to represent defendant.
The case came up for trial on September 12, 2006, with pretrial proceedings conducted on that date. Witnesses had flown in from out of State for the trial. While a different defense attorney was present to represent defendant, defendant insisted that he would represent himself, and so the attorney was designated stand-by counsel. Defendant's initial application, that the attorney leave the courtroom and that the proceedings be closed to the public, was denied.
Defendant then became obstreperous and contemptuous, failing to sit down at the court's direction and telling the judge "I am your supervisor." Due to his persistent interruptions when the judge was speaking, defendant was gagged in order that the judge could advise him that if he continued to disrupt the proceedings he would not be able to represent himself and he would be tried in absentia. When the gag was removed, defendant remained disruptive and disrespectful, and as he left the courtroom he yelled at the judge "You can kiss my ass, too."
The trial judge arranged for defendant to receive appropriate clothing and indicated he would see if defendant's attitude changed by the next day when trial would commence. The trial judge stated for the record that defendant was a security problem, that he had been fighting with the officers as they were trying to get him to sit down, that he would not let the judge talk, that he would not listen to what the judge was saying, that this was not the first problem they had with defendant in the courtroom, and that defendant had "gone off just about every time he's here." At the time of sentencing, the trial judge again commented on defendant's conduct on September 12, 2006, stating that after the restraints were released "defendant continued to curse and yell and carry on in a manner that candidly this is the worst thing I have ever seen in seventeen years as a Superior Court judge."
The next day, September 13, 2006, defendant did not appear at trial. That morning, he had initiated an unprovoked attack upon a guard at the jail, striking the guard with a broomstick. Defendant had been sprayed with mace. He was in the medical unit and in lock down status at the time court proceedings began. Commenting on defendant's conduct the preceding day, the trial judge stated: "Mr. Sanders was yelling, he was wild, he was contemptuous, he was cursing at me . . . he was cursing at his counsel. . . He was totally disruptive. Calling it disrespectful is to put it mildly." In explaining the reasons for proceeding with the trial in defendant's absence, the trial court stated that:
[T]his defendant has had a history in this courtroom of being oppositional defiant, that is putting it in psychological wording. In the common parlance, I would say he was simply just plain old nasty and mean spirited. He is not insane. There is no psychological defect that we are aware of. He certainly has a personality disorder. There has never been any psychiatric defense interposed. . . . [H]e has shown anger, hostility, rage of all in this courtroom.
Defense counsel noted that he found it "very, very difficult" to develop a rapport with defendant and that "from an attitudinal standpoint [defendant] would move from being relatively calm to somewhat energized, shall we say." Defendant had told him that:
[Defendant] had a particular status that made him immune from prosecution and that there was certain evidence that could be found if someone could get to Washington and . . . have access to certain groups down there who could really present him with the actual conversations of cell phone conversations between participants in this particular event, which would reveal a conspiracy to murder him.
When defendant learned that defense counsel had not conducted such an investigation, he became upset with the attorney.
Defense counsel recognized that his client's "erratic" behavior presented a security issue in the courtroom. He stated that he thought defendant was competent to stand trial, noting that defendant knew the purpose of a court, judge and jury, and the difference between right and wrong.
The trial proceeded, with defendant being tried in absentia and represented by defense counsel. After the State rested, in a colloquy on the record, defense counsel explained that defendant had claimed to be immune from prosecution due to his special status connected with the Army Reserves. Defendant wanted defense counsel to go to Washington and obtain this information. Apparently, prior counsel had an investigator try to determine if defendant had any military involvement, but that search came up with nothing. Defense counsel stated that the defense attorneys "were dealing with something that was completely irrational." The trial court went on to note that neither of defendant's experienced defense counsel*fn2 nor the court believed that defendant needed to be psychiatrically examined. Defendant was brought into the courtroom outside the presence of the jury, where he indicated that he would not testify. No witnesses testified for the defense. Defendant was found guilty on all counts.
At the sentencing held on November 30, 2006, defendant asserted that the judge should recuse himself due to bias, alleging that the judge had been a co-defendant in a juvenile case with a Torelo Sanders. The judge indicated that he was a second year law student in 1974 and has never been a co-defendant in anything. Defendant made a further accusation against the judge, stating that "within the year 1978 within the City of Corpus Christi, Texas you identified me as an agent for the government when you was on vacation down in Texas with your cousin, and that is part of my military file and record." The judge stated that he has never been in Corpus Christi, Texas, and we note that defendant was only four years old in 1974. Defendant interrupted the judge and again was removed from the courtroom.
Defendant, thirty-six years old at the time of sentencing, had spent eighteen of those years incarcerated. He was first incarcerated within the juvenile justice system at the age of eleven and has an extensive juvenile record. He had been discharged from parole on adult charges for robbery and weapons offenses on August 2, 2005, only six days before he began threatening K.W. Due to his prior juvenile and adult criminal record, defendant was sentenced as a persistent offender under N.J.S.A. 2C:43-7.1(b) and 2C:44-3(a).
Defendant was sentenced to eighteen months in prison for stalking (count one). This sentence was to run consecutively to the following sentences. Defendant was sentenced to twenty years in prison for second degree aggravated assault (count two), subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, requiring that he serve eighty-five percent of the term before being eligible for parole. An identical sentence was imposed on the second aggravated assault conviction (count five) and this sentence runs concurrently with the sentence imposed on count two. Count three (unlawful possession of a weapon) was merged into count two. Defendant was sentenced to five years in prison for the conviction on terroristic threats (count four), and this sentence runs concurrently with the sentences on the aggravated assault convictions. He was also assessed the requisite monetary penalties and assessments.
On appeal, defendant raises the following issues:
THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT THE DEFENDANT WAS COMPETENT TO STAND TRIAL. (NOT RAISED BELOW)
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)
IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 211/2 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM SENTENCE ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE AGGRAVATED ASSAULT ON COUNT TWO.
IMPOSITION OF AN EXTENDED BASE TERM OF 20 YEARS ON THE DEFENDANT'S CONVICTION ON COUNT TWO WAS MANIFESTLY EXCESSIVE.
IMPOSITION OF MULTIPLE EXTENDED TERM SENTENCES WAS ILLEGAL.
IMPOSITION OF CONSECUTIVE SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR STALKING ON COUNT ONE AND AGGRAVATED ASSAULT ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S SENTENCING DISCRETION.
The due process right to a fair trial is denied when a defendant is required to stand trial although incompetent to do so. Pate v. Robinson, 383 U.S. 375, 377-78, 86 S.Ct. 836, 838, 15 L.Ed. 2d 815, 817-18 (1966). To be competent to stand trial, "a defendant must understand the essential elements of 'a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so.'" State v. McNeil, __ N.J. Super. __, __ (App. Div. 2009) (slip op. at 9) (quoting Riggins v. Nevada, 504 U.S. 127, 139-40, 112 S.Ct. 1810, 1817, 118 L.Ed. 2d 479, 492 (1992) (Kennedy, J., concurring in judgment)). Further, defendant must be able to consult with his attorney with "a reasonable degree of rational understanding - -and . . . [with] a rational as well as factual understanding of the proceedings against him." Ibid. (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788-89, 4 L.Ed. 2d 824, 825 (1960)).
Arguably, New Jersey imposes an even higher standard than federal constitutional law. Ibid. New Jersey statutory law expressly prohibits the trial, conviction, and sentencing of a person "who lacks capacity to understand the proceedings against him or to assist in his own defense." N.J.S.A. 2C:4-4(a). The statute further sets forth criteria to be considered when determining if the person has the requisite capacity to stand trial, providing:
b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:
(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and
(2) That his elementary mental processes are such that he comprehends:
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense. [N.J.S.A. 2C:4-4(b).]
At trial, defendant did not claim lack of capacity to be tried. Indeed, the attorney representing him at the time of the trial expressly stated on the record that he believed defendant to be competent to stand trial.
In the absence of a request for a competency hearing from counsel, trial court must sua sponte order a competency hearing if a bona fide doubt regarding defendant's competency is present. State v. Spivey, 65 N.J. 21, 37 (1974); N.J.S.A. 2C:4-5(a) (allowing the court to order a competency examination by a medical professional on motion by defendant, the prosecutor, or on its own motion whenever the fitness of the defendant to proceed to trial is in doubt). However, the mere suggestion of incapacity is not sufficient to require a hearing. State v. Spivey, supra, 65 N.J. at 36. Once a bona fide doubt has arisen regarding defendant's competency to be tried, the State then must prove defendant's competence to stand trial by a preponderance of the evidence. State v. M.J.K., 369 N.J. Super. 532, 547 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005).
Our review of the trial court's failure to order a competency hearing sua sponte is limited and "highly deferential." State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), cert. denied, 165 N.J. 529 (2000). We may not intervene unless "it clearly and convincingly appears that the defendant was incapable of standing trial." State v. Spivey, supra, 65 N.J. at 37 (quoting State v. Lucas, 30 N.J. 37, 73-74 (1959)). This standard is met where based on the record a bona fide doubt of defendant's competency is presented. Ibid. Thus, for a reversal, defendant must present "'clear and convincing evidence' that raises a 'bona fide doubt' that he failed to meet the competency standards set forth by N.J.S.A. 2C:4-4a." State v. Harris, 181 N.J. 391, 459 (2004), cert. denied sub nom., Harris v. New Jersey, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
After a careful review of the record, we conclude that it clearly and convincingly raises a bona fide doubt on whether defendant met the competency standards set forth in N.J.S.A. 2C:4-4. Specifically, the record raises bona fide questions about defendant's "ability to participate in an adequate presentation of his defense." N.J.S.A. 2C:4-4(b)(2)(g). In reaching this conclusion, we rely on the following parts of the record.
Defendant's courtroom conduct was so disruptive that he had to be gagged in order that the judge could advise him of his rights. The trial judge indicated that defendant's behavior had been a problem every time he appeared in court, and described defendant's conduct on the day before trial as the worst he had seen in a courtroom in the judge's seventeen years on the bench. Due to defendant's out of control behavior, that included his conduct in the courtroom as well as an assault upon a guard at the jail on the morning of his trial, defendant was tried in absentia. Defendant's uncontrollable, disruptive conduct, resulting in his absence from the courtroom during the trial, affected his ability to participate in his defense.
Defendant also asserted facts in court and to his attorneys that appear to have no basis in reality. In court, when he stated that he intended to represent himself in the case, he claimed that he had studied law, that he was a certified paralegal, and that he had passed the bar in Florida, although no documentation in the record supports these assertions. His attorney indicated that defendant had directed counsel to go to Washington to obtain certain cell phone records that would reveal a conspiracy to murder defendant, and defendant claimed a special status with the Army Reserves that would provide him with immunity from prosecution. Counsel could find no documentation of defendant's involvement in the military. The bizarre accusations defendant made about the judge at sentencing buttress this concern that defendant's thought process was disconnected from reality.
Indeed, the criminal conduct that forms the basis of the charges in this case strongly suggest a mental imbalance. Apparently unprovoked, defendant, then thirty-five years old, began threatening and harassing a twelve year old girl over a one month period. When confronted with this behavior through a phone call from his half brother, defendant reacted by immediately appearing at the girl's premises where, in front of witnesses, he went to attack her with a knife and, when his half brother intervened, defendant repeatedly stabbed his half brother. None of this conduct makes any sense.
We note that defendant was represented by two experienced defense attorneys who did not find him incompetent to stand trial. Defense counsel is ordinarily in a better position than the trial judge to evaluate a defendant and request a competency hearing. State v. Spivey, supra, 65 N.J. at 37. The fact that defense counsel did not question defendant's competency "must be given substantial weight" when determining whether a bona fide doubt of defendant's competency is presented. State v. Harris, supra, 181 N.J. at 458. However, when explaining that he thought defendant was competent to stand trial, defendant's trial counsel stated that defendant knew the purpose of the court, judge, and jury, and the difference between right and wrong. Notably, defense counsel did not state that defendant was able to participate in his defense. Rather, later in the trial, noting the defenses that defendant proffered concerning the alleged conspiracy in Washington and his alleged immunity due to his status with the Army Reserves, defense counsel stated that they "were dealing with something that was completely irrational."
Defendant's conduct at the time of trial, the nature of the crimes, and the proffer of irrational defenses clearly and convincingly raise a bona fide doubt about defendant's competency to stand trial. As a result, this conviction cannot stand. We reverse and remand for a competency proceeding and, in the event defendant is found competent to stand trial, for a new trial.