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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...