May 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANA HARRIS, SR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-04-0543.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 26, 2010
Before Judges Lisa and Baxter.
Following a non-jury trial, defendant Dana Harris, Sr. was found guilty of second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)*fn1 (count three); and fourth-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(a) (count four). After appropriate merger, the judge sentenced defendant on count one to a seven-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. The judge imposed concurrent four-year and eighteen-month terms, respectively, on counts two and four. On appeal, defendant raises a single claim:
I. THE COURT ERRED WHEN IT IGNORED DEFENDANT'S CLEARLY STATED REQUEST TO REPRESENT HIMSELF.
The record demonstrates that defendant never asserted a desire to represent himself. Instead, his remarks were confined to dissatisfaction with his assigned Public Defender. Thus, in the absence of the "clear and unequivocal" request for self-representation that our case law requires, the judge had no obligation to inquire further. We thus reject the claim defendant advances and affirm his conviction.
Because defendant's claim on appeal is limited to the issue of self-representation, we need not describe the State's proofs at trial in any detail. Suffice it to say, the State established that defendant walked out of a supermarket in Hamilton Township without paying for several packages of meat and, when chased by the store manager, swung a four-foot-long wooden board at him and punched him in the head.
We turn to a review of the issue presented on appeal. Based upon the record that has been presented to us, the first time defendant expressed any dissatisfaction with his attorney was during an October 19, 2007 hearing on his motion to dismiss the indictment. After defense counsel concluded his argument on the motion, defendant interjected, saying "can I speak?" The following discussion occurred:
THE COURT: Your attorney spoke for you. Do you want to speak to him first?
DEFENDANT: I'm sure I can understand everything that's going on. Make no mistake about that. I moved the indictment.
THE COURT: I can't hear you.
DEFENDANT: I moved to have the indictment dismissed in its entirety under State v. Chowns (phonetic).
THE COURT: I understand that.
DEFENDANT: In its entirety. Brought about when [the prosecutor] is talking about this count, first-degree robbery charge. That's my intent. In its entirety.
The proceeding then resumed with further legal argument.
After denying defendant's motion to dismiss the indictment, the judge asked the attorneys whether the State had provided a plea offer. Before his attorney could answer, defendant stated "there will be no deal." He added, "I'll take a non-jury trial." The following discussion then ensued:
[DEFENSE COUNSEL]: Mr. Harris doesn't wish to have any further discussions with me. I have a trial memo –
DEFENDANT: Let the record reflect that's absolutely correct.
[DEFENSE COUNSEL]: Be glad to submit it without a signature.
THE COURT: Sure.
DEFENDANT: Trial date, something to that effect, I don't have a problem. But as far as Mr. whatever his name is represent[ing] me, that's not going to happen. If you need something signed, Your Honor, I don't have a problem with that.
THE COURT: Then you can retain private counsel, sir. I'll give you a trial date in January so you'll have ample time to do that.
Let me explain something to you. If the indictment had been dismissed --
DEFENDANT: With all due respect –
THE COURT: Can I say something?
DEFENDANT: With all due respect, I do not wish to hear what you have to say. Thank you very much.
The pretrial conference resumed with the judge explaining to defendant the difference between the State's plea offer and his maximum sentencing exposure were he to be found guilty at trial. The judge then returned to the subject of defendant's waiver of his right to a trial by jury and asked him whether he would agree to a bench trial. Defendant answered as follows:
DEFENDANT: That's my intent, without Mr. 's help. That's my intent.
THE COURT: Well, I think you would do much better with Mr.  helping you.
DEFENDANT: I think I would do a lot better without him.
THE COURT: Well, if you want to represent yourself, you'll have to file a motion and convince me that you're competent to do so.
DEFENDANT: I am well aware of that. Make no mistake about that. I am well aware of that.
THE COURT: Unless you do that, Mr.  represents you.
DEFENDANT: No, he doesn't.
THE COURT: Yes, he does.
DEFENDANT: Mr.  and his plantation type atmosphere. This is America. This is the year 2007, not 1850 when slavery was around. He will not represent me. Make no mistake about that.
There was no further discussion of defendant's dissatisfaction with his public defender. Instead, the judge continued to discuss with defendant his desire to waive his right to a trial by jury.
The trial began two weeks later.*fn2 Before opening statements, the judge asked defense counsel whether he preferred to have defendant sitting next to him at counsel table. Counsel answered, "it's up to Mr. Harris," at which point defendant stated:
DEFENDANT: Mr. Harris makes one request. Mr. Harris has already stated that Mr. 's attitude and demeanor towards him creates a plantation type atmosphere, and he does not want him for a lawyer. Other than that, I have nothing else to say in this entire proceeding. Do what you will.
THE COURT: You can remain where you are. It doesn't appear that you're willing to be of any assistance to Mr. .
DEFENDANT: I certainly am not. Let the record reflect that.
THE COURT: The record will reflect that.
DEFENDANT: Thank you very much.
At the conclusion of opening statements, the State presented its first witness. Defendant made no comment during any portion of the direct testimony or during his attorney's cross-examination of the witness. Before proceeding with the redirect testimony, the judge asked defendant whether he would like the opportunity to speak with his attorney "to recommend any additional questions for cross-examination." Defendant apparently remained mute, because the judge commented "okay, you continue to rest." The judge then stated, "the record will reflect that the defendant has his eyes shut and is not responsive to the court."
Once the State had presented its second witness, the judge again asked defendant if there was anything he would like his attorney to ask "or that [defendant] would like to ask this witness." Apparently, defendant's attitude remained unchanged because the judge commented "the defendant continues to keep his eyes closed and failed to respond to the court."
After the State rested, the judge turned to defense counsel and asked him whether he had discussed with defendant whether defendant wished to testify. Defense counsel responded, "Mr. Harris has refused to have conversations with me except for some rather crass comments." The judge then explained to defendant that he had no obligation to testify and had an absolute right to remain silent. At the conclusion of that explanation she asked him whether he intended to testify. The record contains no response from defendant. The judge stated, "alright, you know, Mr. Harris, we're all grown ups here. If you want to proceed in this manner, you leave me absolutely no choice. The record will be clear that the defendant has absolutely refused to cooperate with Mr. . He has refused to respond to the court's questions. And I assume that means that he does not wish to testify." Defendant made no comment or any other response.
After taking a brief recess, the judge addressed defendant to ask whether he had changed his mind about testifying. She remarked that when she entered the courtroom defendant "appeared to be very verbal . . . with the sheriff's officer" and "so he has remained awake, but has chosen by his demeanor not to participate in these proceedings for reasons that are known to him alone." The judge then stated:
Of course, he has expressed the fact that he would have liked another public defender appointed, but the Court sees absolutely no reason to grant that request, having become very familiar with Mr.  as an attorney.
After the attorneys' closing arguments, defendant advised the judge that he did not wish to be present when she placed her findings of fact and conclusions of law on the record. The judge asked defendant if he would prefer to watch the proceedings from the jail via a video teleconference. Defendant responded, "I will have no part of this, none whatsoever. Do what you will." When the judge asked him whether he was waiving his appearance, he again stated "do what you will."
Two days later, the judge issued a comprehensive ruling, finding defendant not guilty of first-degree robbery, but guilty of second-degree robbery as a lesser included offense. As we have noted, the judge also rendered guilty verdicts on the remaining counts.
Defendant argues that the court erred by failing to hold a hearing on his request to proceed pro se. He maintains that his request for self-representation was clear and unequivocal and that the judge impermissibly imposed a barrier to his exercise of that right when she required him to file a motion and when she insisted that in the absence of such motion, his request to proceed pro se would not be considered.
The State has no constitutional authority to force a criminal defendant to forego the right of self-representation. A state may not constitutionally impose a lawyer upon an unwilling defendant. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed. 2d 562, 581 (1975). It is the defendant who holds the personal "right to defend," and "the defendant, not his lawyer . . ., bear[s] the consequences of a conviction." State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994).
However, the right to self-representation does not attach until it is asserted clearly and unequivocally. State v. Harris, 384 N.J. Super. 29, 57 (App. Div), certif. denied, 188 N.J. 357 (2006). As we held in Harris, the trial judge's obligation to conduct a hearing to determine if the defendant's waiver of his right to counsel is both knowing and voluntary is only triggered when the defendant has clearly and unambiguously asserted his right to forego the assistance of counsel and represent himself. Id. at 57-58. Moreover, "there is a difference," from a constitutional perspective, "between the right of self-representation and the right of a defendant to secure counsel of his own choice. The latter is not absolute . . . ." Id. at 59. When a defendant expresses dissatisfaction with his assigned public defender, "'a court may not require the Public Defender to assign new counsel . . ., absent a showing of substantial cause.'" Ibid. (quoting State v. Coon, 314 N.J. Super. 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998)).
Applying these governing principles, we reject defendant's claim that the judge violated his right of self-representation. As in Harris, "the record is barren of any expressed desire --much less a clear and unequivocal one -- on defendant's part to proceed without counsel and to represent himself." Id. at 60. Indeed, the only person who ever mentioned the possibility of defendant representing himself was the judge. Even when she did so, and instructed defendant that such request need be by motion, defendant's response falls far short of expressing a "clear and unequivocal" desire to represent himself. Instead, defendant confined his remarks to assuring the judge he understood that should he wish to exercise his right of self-representation, he would be required to file a motion.
As the record demonstrates, the only facts that were "clear and unequivocal," ibid., were defendant's disdain for his public defender, his rejection of the "plantation atmosphere" counsel had allegedly created and defendant's strong desire to avoid any further contact with his public defender. However, as Harris makes clear, mere "dissatisfaction" with assigned counsel is not the functional equivalent of a request for self-representation, id. at 59, and triggers none of its substantive and procedural rights.
Thus, based on this record, we are satisfied that defendant never made a clear and unequivocal request to represent himself. At best, as defendant's discussion with a sheriff's officer showed, defendant may have sought a different attorney. That, however, is a far cry from a request to renounce the right to counsel and proceed pro se. Harris, supra, 384 N.J. Super. at 59. Therefore, the court was under no obligation to conduct a Faretta hearing to inquire into the voluntary and knowing character of a waiver that was never even expressed. Defendant merely voiced dissatisfaction with his public defender, which did not trigger any obligation on the judge's part to conduct such a hearing. Ibid. In light of our conclusion that defendant never made a request for self-representation, we need not decide whether the judge erred by instructing defendant that any such request must be by motion.
Affirmed. Remanded for an amendment of the JOC to reflect the correct statutory citation for count three.