On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-00271.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010 -- Decided: Before Judges Payne, C.L. Miniman and Waugh.
The opinion of the court was delivered by MINIMAN, J.A.D.
Defendant appeals from his convictions for first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(7), and third-degree distribution of Oxycodone, Phenobarbital, or Temazepam, contrary to N.J.S.A. 2C:35-5a(1) and -5b(5). Because the record does not support the judge's determination that defendant had knowingly and intelligently waived counsel, we reverse and remand.
The incidents giving rise to these convictions occurred at the In-Town Motor Lodge in Elizabeth, which provides housing for county welfare recipients. Defendant became a resident there on June 17, 2002. Another resident was P.M., who moved into the motel on October 4, 2002, with her two daughters.
S.M. is P.M.'s sister-in-law. S.M. and P.M. had a "good relationship," and S.M. considered P.M. to be "my sister." In mid-October 2002, S.M. was nineteen-years old, had a three-year-old daughter, was two months pregnant, and was homeless. As a result, S.M. and her daughter moved in with P.M. and her two children, intending to stay with them for a few days.
S.M. arrived at P.M.'s room on Thursday night, October 17, 2002. S.M. saw defendant for the first time that evening while he was outside of his room, but the two did not speak with one another. P.M.'s room lacked cooking facilities. However, P.M. had a friend, Diana Matthews, who lived in another room at the motel with a "kitchenette." Matthews allowed P.M. to use her cooking facilities as necessary in order to prepare meals.
On Friday afternoon, October 18, 2002, S.M. wanted to warm some food for her daughter and nieces so she went to Matthews' room. Matthews was not at home, but S.M. observed defendant walking to his nearby room, which also had a kitchenette. She asked him whether she could use his stove to warm her food, and he agreed. While the food was cooking, S.M. and defendant spoke. Defendant indicated that he knew S.M.'s father, and S.M. "felt a little more comfortable . . . because he knew my father." At that juncture, S.M. told defendant that she was "trying to find shelter" and obtain welfare benefits. According to S.M., defendant responded that he had a "friend" who worked at "Legal Aid" and that he would contact that friend to see if she could help S.M. Defendant gave S.M. an accurate physical description of his friend.*fn1 The conversation between S.M. and defendant ended after twenty or thirty minutes.
The following day, S.M., her daughter, and a niece visited defendant's room to "talk to him about the situation that he told me that he could help me with." S.M. was "standing at the door" to defendant's room during this visit. While S.M. was in defendant's room, "a big older lady, a black lady," came to the door and made a request of defendant. Defendant then retrieved some pills from behind the TV and gave them to the woman in exchange for money. S.M. concluded that defendant "was distributing pills"; defendant told her that "he sells them."
On Sunday, S.M., P.M., and their children went to New York to visit a relative. They returned to P.M.'s room after 9:00 p.m., bringing "a little bit of clothes and food" with them, including a "roast." S.M. and P.M. were "partying a little bit" in the room. S.M. drank a shot of Hennessy and smoked "four or five pulls" of marijuana. After twenty to thirty minutes, Matthews "came over to chill with us." Upon entering the room, Matthews informed S.M. that "the old man [defendant] wants you." S.M. went to defendant's room, carrying an unopened can of beer with her. Before leaving, S.M. asked P.M. to "come get me" in a little while. When S.M. entered defendant's room, she found him emotionally upset about something that had happened that day, but after the two talked for a while, defendant "became calm."
P.M. eventually telephoned S.M. and told her that the children were hungry. P.M. asked S.M. to cook a roast in defendant's oven. Defendant agreed, and S.M. went to get the roast, leaving her unopened can of beer in defendant's room. S.M. returned with the roast in a few minutes, after again asking P.M. to "come get me [in] like 15 minutes." She put the roast in the oven and went to the table to get her beer, but it was not there because defendant had opened the beer, poured about half of it into a cup, and placed the cup and beer can "by him, by the bed." There were two beds in the room; defendant sat on one of them and S.M. sat "on the bed right across from him."
The two then engaged in an extended and "really interesting" conversation. During this period, S.M. drank "a good amount" of the beer and smoked cigarettes that defendant provided. At some point, S.M. became "queasy and light-headed," "nauseous," and "weak." She felt as though she "couldn't even get up" from the bed, and her vision "got real blurry." At that point, defendant said "that he wanted [S.M.], that he was going to have [her]." S.M. then lost consciousness and does not remember what happened next.
S.M. awoke around 3:00 a.m. on Monday, October 21, 2002. She was lying on the floor under the sink in defendant's bathroom and was wearing only a "black long shirt, his shirt." She later discovered that her clothes had been folded and placed on a chair outside the closed bathroom door. S.M. was "hurting all over"; her "whole body ached and especially [her] mouth," which "was swollen and . . . cut inside," having been "busted." S.M. was bleeding, and her vagina was "sore" and "leaking." S.M. stood up after a minute, looked around the bathroom, and realized that the window was too small to get out. She was bruised and afraid she was going to die. She realized that P.M. had forgotten about her.
S.M. heard someone knocking on the door to defendant's room. She opened the bathroom door and saw defendant answering the knock by opening the outside door. When defendant saw her, he closed the outside door, grabbed her by the hair, bent her hand and thumb back, and told her that she "better not say nothing" or he would kill her. S.M. remained in the bathroom until she heard defendant open the outside door. She quickly exited the bathroom, picked up her clothes, pushed past the man who was standing in the doorway, and ran to P.M.'s room.
S.M. had to "bang for a while" on P.M.'s door before P.M. finally got up and answered it. S.M. was crying when she told P.M. what had happened, but P.M. did not respond the way S.M. thought she would. P.M. seemed to be really drunk and did not seem to comprehend what S.M. was saying to her. S.M. then "just kind of shut down for a while," laying her "head on the table and cry[ing] until they woke up" later in the morning.
After P.M. awoke, S.M. again told her what had happened. P.M. became angry and went over to defendant's room carrying a knife. P.M. and defendant spoke. P.M. then told S.M. not to clean herself and asked whether S.M. wanted to go to the police. S.M. did not want to do so because she was "too devastated."
Later that morning, P.M., S.M., and their children went to the nearby Legal Aid office because P.M. had to "handle some business" there. When she entered the reception area of the office, S.M. immediately recognized defendant's friend, Z.C., based upon the physical description that defendant had earlier provided. S.M. spoke to Z.C. and thereafter called the police and reported the sexual assault.
The police arrived at defendant's room at 12:31 p.m. on October 21, 2002, and defendant was arrested a short time later. The police searched defendant's room and found numerous prescription drugs, including Phenobarbital, codeine (in a liquid cough syrup), Temazepam, and Oxycodone.*fn2
S.M. was examined by a Sexual Assault Nurse Examiner at 4:14 p.m. on October 21, 2002. The examiner noted numerous cuts and scratches on S.M.'s body and obtained vaginal swabs for DNA analysis. S.M. refused to provide either blood or urine specimens until 7:40 p.m. the next day when the prosecutor insisted upon them. This was almost forty-eight hours after the sexual assault.
Defendant, appearing pro se, was tried over the course of fourteen days between July 18 and August 4, 2006. The State's toxicology expert testified that she did not find the presence of any drugs in S.M.'s blood. However, as a result of urine-screening tests, the expert found the presence of marijuana and cocaine metabolites in S.M.'s urine. The expert also testified that she tested a cup found in defendant's room and found the presence of cocaine residue in the cup.
The State also presented testimony from Dr. John Brick, an expert in
pharmacology and the psychological and behavioral effects of drug
intoxication. In response to an extensive hypothetical question by the
prosecutor, which included consideration of
the presence in a person's
urine of "a level of
. . . too low to report, approximately 10 nanograms,"
Brick testified that the "person was exposed to drugs," including
"trace amounts or very low amounts of opiates." Brick also testified
that "the symptoms of feeling lightheaded or dizzy and apparently
losing consciousness is [sic] certainly consistent with
someone who was exposed to a drug that produced either unconsciousness
or a total block of memory for some period of time."
Brick further testified that ingestion of marijuana and Hennessy or marijuana and cocaine would not produce such a "profound impairment" that the person would lose consciousness or be unable to remember things. However, Brick testified that Pheno-barbital, Temazepam, and Oxycodone could have that effect. Moreover, those drugs may or may not be detectable forty to forty-eight hours after ingestion due to differences in their metabolism rates. Phenobarbital in dosage levels sufficient to cause unconsciousness and memory loss would probably be detectable forty hours after ingestion, while Temazepam might be detected and Oxycodone probably would not, but if Oxycodone was detected, "it would be in very low concentrations."
The State also presented evidence from an expert in DNA analysis showing that the DNA extracted from the vaginal swabs taken from S.M. matched the DNA sample provided by defendant. Defendant did not contest this finding. Instead, his defense rested on his assertion that he and S.M. engaged in consensual sex on Saturday, October 19, 2002, and that S.M.'s allegations were the result of an argument over his prescription drugs.
On August 4, 2006, the jury found defendant guilty of aggravated
sexual assault and distribution of a controlled
dangerous substance, but not guilty of resisting arrest.*fn3
Defendant appeared for sentencing on December 22,
2006.*fn4 After granting the State's motion to
sentence defendant to an extended term of imprisonment based upon his
extensive criminal record,*fn5 the judge found three
aggravating factors and no mitigating factors. He concluded that the
aggravating factors substantially outweighed the mitigating factors.
Additionally, the judge determined that the provisions of the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to defendant's
conviction for aggravated sexual assault.
For the aggravated sexual-assault conviction, the judge imposed an extended-term sentence of thirty years in prison, subject to the eighty-five percent parole disqualifier under NERA and five years of parole supervision thereafter. For the drug-distribution conviction, he imposed a sentence of five concurrent years, subject to a two-year period of parole ineligibility. The judge also imposed various penalties and fees, which are not at issue here. The judge entered a judgment of conviction in conformance with his oral sentencing decision. Defendant filed a notice of appeal, and we assigned counsel.
Defendant raises the following issues for our consideration:
POINT I - THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL. (Mostly Raised Below).
POINT II - DEFENDANT'S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT VIOLATED THE FEDERAL AND STATE CONSTITUTIONAL PROHIBITIONS AGAINST DOUBLE JEOPARDY.
POINT III - THE COURT ERRONEOUSLY FAILED TO REQUIRE A MENTAL EXAMINATION OF DEFENDANT, TO CONDUCT AN EVIDENTIARY HEARING AS TO HIS EMNITY TOWARDS STANDBY COUNSEL AND THE PUBLIC DEFENDER'S OFFICE, AND TO SUBJECT HIM TO A SUFFICIENT INQUIRY REGARDING HIS CAPACITY TO WAIVE COUNSEL BEFORE PERMITTING HIM TO PROCEED PRO SE AT TRIAL; AND THE COURT FURTHER ERRED IN REQUIRING THE TRIAL TO PROCEED WITH SUBSITUTE STAND-BY COUNSEL WHO HAD NO FAMILIARITY WITH THE CASE.
A. Ruling that defendant effectively waived his right to counsel at trial.
B. Improper Substitution of Standby Counsel.
C. Applicable error standard.
POINT IV - THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST THAT HE SUPPLEMENT HIS TESTIMONIAL RESPONSES TO QUESTIONS POSED BY STANDBY COUNSEL WITH A STATEMENT IN NARRATIVE FORM VIOLATED HIS CONSITTUTIONAL RIGHT TO TESTIFY IN HIS OWN BEHALF.
POINT V - THE STATE'S INTOXICATION EXPERT PROVIDED TESTIMONY WHICH WAS NOT RELEVANT OR WHICH POSED A POTENTIAL FOR PREJUDICE WHICH SUBSTANTIALLY OUTWEIGHED ITS PROBATIVE VALUE.
POINT VI - THE COURT ERRONEOUSLY PRECLUDED DEFENDANT FROM ADDUCING EXTRINSIC EVIDENCE AFFECTING Z.C.'S CREDIBLITY.
POINT VII - DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS BY THE COURT'S LIMITATION ON THE TESTIMONY OF AN IMPORTANT DEFENSE WITNESS AND IMPOSITION OF A TIME LIMIT ON DEFENDANT'S SUMMATION.
POINT VIII - DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IX - DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
The issues raised by defendant concern issues committed to the sound discretion of the trial judge or are purely legal issues. As to the latter, a question of law is subject to our plenary review. State v. Cleveland, 371 N.J. Super. 186, 295 (App. Div.), certif. denied, 182 N.J. 148 (2002) (citing State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001)); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of an abuse of discretion. In re Estate of Howard C. Hope, Sr., 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).
We begin with defendant's troubling concern about his pro se defense and his standby counsel. First, defendant contends that the judge erred in denying the prosecutor's motion to remove his pro se status because he did not require defendant to submit to a psychological examination to determine his mental competency, as standby counsel requested. Second, defendant asserts that the judge should have conducted an evidentiary hearing to probe the reasons for defendant's "hostility to representation by standby counsel and the Public Defender's office." Third, defendant urges that the judge erred in allowing him to act pro se at trial without "sufficient inquiry" regarding his knowledge of the effect of a waiver of counsel to determine whether that waiver, made three years earlier, was still knowing, voluntary, and intelligent. Fourth, defendant asserts that the "appointment of substitute standby counsel who knew nothing about the case . . . was an abuse of the court's discretion and a violation of defendant's rights to the assistance of counsel and due process." The State responds that all of these arguments are without merit.
After forty years of jurisprudence focusing on a criminal defendant's
right to counsel in federal and state courts under the Sixth and
Fourteenth Amendments to the United States Constitution,*fn6
the United States Supreme Court turned its attention to a
defendant's constitutional right to proceed without counsel "when he
voluntarily and intelligently elects to do so."
Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975). "Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." Ibid. The answer to the question was "that a State may not constitutionally do so." Ibid.
The Court found that "[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Id. at 819, 95 S. Ct. at 2533, 45 L. Ed. 2d at 572. It found that right to be implied from the structure of the Sixth Amendment itself, id. at 819-21, 95 S. Ct. at 2533-34, 45 L. Ed. 2d at 572-74; its roots in English legal history, id. at 821-26, 95 S. Ct. at 2534-37, 45 L. Ed. 2d at 574-76; and the insistence of the American Colonies upon a right of self-representation, id. at 826-32, 95 S. Ct. at 2537-40, 45 L. Ed. 2d at 576-80.
The Court acknowledged that it was "undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." Id. at 834, 95 S. Ct. at 2540, 45 L. Ed. 2d at 581. However, "[t]o force a lawyer on a defendant can only lead him to believe that the law contrives against him." Ibid.
This was so because [t]he defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law." Illinois v. Allen, 397 U.S. 337, 350-51[, 90 S.
Ct. 1057, 1064, 25 L. Ed. 2d 353, 363 (1970) (Brennan, J., concurring)]. [Id. at 834, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581 (footnote omitted).]
In the omitted footnote, the Court recognized that a trial judge might have to "terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." Id. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46 (citation omitted). It then observed: "Of course, a State may--even over objection by the accused--appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Id. at 835 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46 (citing United States v. Dougherty, 473 F.2d 1113, 1124-26 (D.C. Cir. 1972)).
Because an accused defending pro se "relinquishes . . .
many of the traditional benefits associated with the right to counsel . . ., in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." Id. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581 (citations omitted). As such, an accused "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Id. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582 (citation omitted). Finally, the Court commented that an accused's "technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself." Id. at 836, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582.*fn7
That assessment begins with defendant's competence to stand trial, enter a plea, and waive his or her constitutional rights. We applied Faretta in State v. Russo, 243 N.J. Super. 383 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991). There, defendant sought to proceed pro se, but the trial judge "concluded that although defendant's waiver of counsel was knowing, it was not competent and intelligent." Id. at 401 (citation and internal quotation marks omitted). The defense experts' reports opined that defendant "suffered from a depressive disorder, a personality disorder and polysubstance abuse." Id. at 403. We affirmed the trial judge's conclusion that the defendant's waiver of counsel "was not made 'intelligently.'" Ibid. In doing so, we warned that "[a] court must be especially cautious in finding any waiver of the right to counsel by a person allegedly suffering from a mental disease or defect." Ibid. (citations omitted).
Three years after our decision in Russo, the United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 391, 113 S. Ct. 2680, 2682, 125 L. Ed. 2d 321, 327 (1993), considered "the question [of] whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial." "[T]he standard for competence to stand trial [was] whether the defendant has 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has 'a rational as well as factual understanding of the proceedings against him.'" Id. at 396, 113 S. Ct. at 2685, 125 L. Ed. 2d at 330 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960) (per curiam)).
The Godinez Court observed that, previously, it had "never expressly articulated a standard for competence to plead guilty or to waive the right to the assistance of counsel." Ibid. It then rejected "the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard." Id. at 398, 113 S. Ct. at 2686, 125 L. Ed. 2d at 331. It observed, "If the Dusky standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty." Id. at 399, 113 S. Ct. at 2686, 125 L. Ed. 2d at 332. As to waiver of counsel, the Court said: "[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Id. at 399, 113 S. Ct. at 2687, 125 L. Ed. 2d at 332 (footnote omitted).
A finding that a defendant is competent to stand trial, however, is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. Parke v. Raley, 506 U.S. 20, 28-29[, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391, 403] (1992) (guilty plea); Faretta, supra, [422 U.S.] at 835[, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82] (waiver of counsel). In this sense there is a "heightened" standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence. [Id. at 400-01, 113 S. Ct. at 2687, 125 L.
Ed. 2d at 333 (footnote omitted).]
In the omitted footnote, the Court drew a distinction between the question of "whether [the defendant] has the ability to understand the proceedings," a question of mental capacity, and "whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced," a question of "knowing and voluntary" waiver of a constitutional right. Id. at 401 n.12, 113 S. Ct. at 2687 n.12, 125 L. Ed. 2d at 333 n.12 (citations and internal quotation marks omitted).
The Court found "that when a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted." Id. at 402, 113 S. Ct. at 2688, 125 L. Ed. 2d at 334 (footnote omitted). It noted "that a court is [not] required to make a competency determination in every case"; it "is necessary only when a court has reason to doubt the defendant's competence." Id. at 401 n.13, 113 S. Ct. at 2688 n.13, 125 L. Ed. 2d at 333 n.13 (citations omitted).
The Court again wrestled with the issue of mental competency to waive the right to counsel in Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008).*fn8 There, the focus was "a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself." Id. at 167, 128 S. Ct. at 2381, 171 L. Ed. 2d at 350. The Court concluded that the Constitution did not forbid a state from ...