On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 00-10-3179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and J. N. Harris.
Defendant was convicted of murder, N.J.S.A. 2C:11-3(a)(1)-(2); felony murder, N.J.S.A. 2C:11-3(a)(3); aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), and sexual assault, N.J.S.A. 2C:14-2(c)(4). He was sentenced to an aggregate term of life imprisonment plus twenty years with forty-five years to be served before parole eligibility. This was based on a sentence of life with thirty-five years before parole eligibility for the murder and a consecutive sentence of twenty years with ten years before parole eligibility for the aggravated sexual assault. Defendant's convictions were reversed on appeal because the trial court had improperly denied his Sixth Amendment right to self-representation. State v. Figueroa, 377 N.J. Super. 331, 338 (App. Div. 2005), aff'd, 186 N.J. 589 (2006).
Following a new jury trial before another judge, defendant was again convicted on all counts. He was sentenced to life imprisonment with thirty years to be served before parole eligibility on the murder conviction and a consecutive life term with parole ineligibility for twenty-five years and to community supervision for life on the conviction for aggravated sexual assault. Accordingly, the aggregate sentence after the second trial was two lives plus fifty-five years before parole eligibility. We amend the sentence and affirm the convictions.
In August 1995, on a Friday afternoon, thirteen-year-old Shaline Sequinot was visiting her grandmother in Camden when she asked her aunt for permission to borrow a neighborhood boy's bicycle for a short ride. Her aunt allowed her, but warned that she could not go far and had to return in five minutes. When Sequinot did not promptly return, her family became worried and set out to search for her. They could not find her and called the police, but continued searching throughout the weekend.
Sequinot's body was found three days after her disappearance. A medical examiner testified that a severed carotid artery and stab wound to the lung caused her death, and that she also sustained nine other stab wounds to the chest and a small laceration to the vagina. He opined that all of the injuries had been inflicted within a half hour of death, which, he estimated, occurred within hours of Sequinot venturing off on the bicycle that afternoon.
Semen was found in vaginal swabs taken from Sequinot. An expert in DNA analysis testified that genetic material from one of those swabs matched defendant's DNA.
Defendant argues that he did "not knowingly and voluntarily waive his [right to counsel at the second trial] because the court did not inform him of the maximum term he faced [upon conviction,] and led him to believe that he faced less than the maximum term" and less than the term he received.
The trial court concluded, following a hearing, that defendant sufficiently understood the consequences of his decision to waive his right to counsel. A criminal defendant has a state and federal constitutional right to self-representation. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed. 2d 562, 574 (1975); State v. Davenport, 177 N.J. 288, 299-302 (2003). That right is not absolute, however, and may be exercised only following a knowing and intelligent waiver of the right to representation by counsel. State v. Reddish, 181 N.J. 553, 587, 592 (2004). Therefore, the court must engage in a searching inquiry on the record of a defendant who wants to represent himself, State v. Crisafi, 128 N.J. 499, 509-10 (1992), and ascertain whether he or she is adequately informed of
(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.
Generally, the validity of a waiver depends "'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" State v. Thomas, 362 N.J. Super. 229, 236 (App. Div.) (quoting Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed. 2d 378, 385 (1981)), certif. denied, 178 N.J. 249 (2003). See also State v. Kordower, 229 N.J. Super. 566, 578 (App. Div. 1989). In the specific context of punishment, the failure to ensure that a defendant is adequately informed of his or her sentencing exposure has impacted the validity of a waiver of the right to counsel. Kordower, supra, 229 N.J. Super. at 578; State v. Abbondanzo, 201 N.J. Super. 181, 185 (App. Div. 1985). In Abbondanzo, we reversed a disorderly person's conviction because the defendant was not advised that he risked "incarceration." 201 N.J. Super. at 183-85. In Kordower, convictions were reversed because defendant was not advised of the possible length of the aggregate sentence. 229 N.J. Super. at 577.
Here, the court engaged defendant in a thorough discussion of the nature and consequences of defendant's request to proceed pro se. Although he preferred only to cross-examine the State's witnesses because he knew the case so well, he assured the court that, if it forbade hybrid representation, defendant felt "comfortable with doing the whole case." He expressed confidence that "[n]obody knows my case better than I do. I'm familiar with the case. I studied the case." Defendant also indicated that he understood his basic responsibilities in proceeding pro se: making opening and closing statements, cross-examining witnesses, conducting jury selection, presenting his own witnesses and exhibits, as well as his consequent abandonment of any claim of ineffective assistance of counsel and the risk of jeopardizing his right against self-incrimination.
Defendant acknowledged that he had little familiarity with rules of evidence, no experience with the court rules or criminal code, and only a ninth-grade education. Consequently, he acknowledged that he might face some difficulty in representing himself but maintained that "that's a risk I'm willing to take. And I'm wholeheartedly giving -- That's why I'm wholeheartedly giving up my rights so I can represent myself." Defense counsel*fn1 then confirmed that, although he did not advise defendant to proceed pro se, his own extensive discussions with defendant revealed that defendant was thoroughly familiar with the first trial, understood the risks of ...