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State of New Jersey v. Stephen Wortman


January 21, 2011


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.


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 opiate . . . 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:




A. Ruling that defendant effectively waived his right to counsel at trial.

B. Improper Substitution of Standby Counsel.

C. Applicable error standard.







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 insisting that the defendant proceed to trial with counsel in such a case, thus denying him the right to represent himself. Ibid.

There had been three competency hearings and two self-representation requests, mostly before the same judge. Id. at 167, 128 S. Ct. at 2382, 171 L. Ed. 2d at 351. Initially, the defendant was found not competent to stand trial. Ibid. Seven months later he was found to be improved and competent to stand trial. Id. at 168, 128 S. Ct. at 2382, 171 L. Ed. 2d at 351. At the third competency hearing a year later, the testifying psychiatrist reported that the defendant could understand the charges against him but could not cooperate with his attorney because of his schizophrenia. Ibid. The defendant was found not competent to stand trial and was recommitted. Ibid.

Eight months later, the hospital reported that the defendant had improved and was competent to stand trial. Ibid. Just before trial a year later, the defendant sought to represent himself and asked for a continuance, which the judge refused. Ibid. He was represented by counsel and convicted of some offenses with a hung jury on others. Id. at 168-69, 128 S. Ct. at 2382, 171 L. Ed. 2d at 351. Six months later, the defendant was retried on the remaining charges. Id. at 169, 128 S. Ct. at 2382, 171 L. Ed. 2d at 351. The defendant again sought to represent himself, which the judge denied, finding him competent to stand trial but not competent to defend himself. Id. at 169, 128 S. Ct. at 2382-83, 171 L. Ed. 2d at 351-52. The jury convicted the defendant on the remaining charges; he appealed, raising a Faretta*fn9 issue; the appellate court reversed; and the Indiana Supreme Court affirmed under Faretta and Godinez.*fn10 Id. at 169, 128 S. Ct. at 2383, 171 L. Ed. 2d at 352.

The United States Supreme Court noted that neither Dusky*fn11 nor Drope*fn12 "considered the mental competency issue presented here, namely, the relation of the mental competence standard to the right of self-representation." Id. at 170, 128 S. Ct. at 2383, 171 L. Ed. 2d at 352. Neither did Faretta answer the question. Id. at 171, 128 S. Ct. at 2384, 171 L. Ed. 2d at 353. The Court acknowledged that Godinez bore certain similarities to Edwards but nonetheless concluded that it did not answer the question before the Court because the defendant in Godinez only sought to enter a guilty plea. Id. at 172-73, 128 S. Ct. at 2385, 171 L. Ed. 2d at 354. Godinez permitted a State to allow a defendant to represent himself and did not address whether a State could prevent a defendant from representing himself. Id. at 173, 128 S. Ct. at 2385, 171 L. Ed. 2d at 355.

Precedent did not suggest the right to conduct a pro se defense was absolute. Id. at 174-75, 128 S. Ct. at 2386, 171 L. Ed. 2d at 355-56. Moreover, mental illness was not unitary but varied at different times in different ways. Id. at 175-76, 128 S. Ct. at 2386-87, 171 L. Ed. 2d at 356. "Third, in our view, a right of self-representation at trial will not 'affirm the dignity' of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel." Id. at 176, 128 S. Ct. at 2387, 171 L. Ed. 2d at 356 (citation omitted). Moreover, "insofar as a defendant's lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial." Id. at 176-77, 128 S. Ct. at 2387, 171 L. Ed. 2d at 357. "Further, proceedings must not only be fair, they must 'appear fair to all who observe them.'" Id. at 177, 128 S. Ct. at 2387, 171 L. Ed. 2d at 357 (quoting Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140, 149 (1988)).

The application of Dusky's basic mental competence standard can help in part to avoid this result. But given the different capacities needed to proceed to trial without counsel, there is little reason to believe that Dusky alone is sufficient. At the same time, the trial judge, particularly one such as the trial judge in this case, who presided over one of Edwards' competency hearings and his two trials, will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.

We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. [Id. at 177-78, 128 S. Ct. at 2387-88, 171 L. Ed. 2d at 357.]

In McNeil, supra, 405 N.J. Super. at 51-54, we relied heavily on Edwards in addressing a claim that the defendant was deprived of his Faretta rights when the trial judge required him to be represented by counsel. We found:

[A] trial judge in New Jersey may, consistent with Edwards and the State Constitution, deny a defendant the right of self-representation when the record sustains a finding, made for specific reasons, that a mentally ill defendant is competent to stand trial but cannot knowingly and intelligently waive his right to counsel without being deprived of a fair trial. . . . We urge, however, that a defendant must be mentally ill and not merely difficult to handle or disruptive to be deprived of the right of self-representation. [Id. at 52-53 (emphasis added) (citations omitted).]

We also noted that the Reddish and Edwards Courts made clear that "'the competence necessary to make a knowing and intelligent waiver of counsel is different from the competence to conduct a defense.'" Id. at 53 (quoting State v. Reddish, 181 N.J. 553, 592 (2004)).

With these legal principles in mind, we turn to defendant's contention that the judge was in no position to conclude that he had knowingly and intelligently waived his right to counsel because he had not ordered a "psychological evaluation" of him. The issue, of course, is whether defendant was mentally ill, not "merely difficult." McNeil, supra, 405 N.J. Super. at 53; see also, Edwards, supra, 554 U.S. at 177-78, 128 S. Ct. at 2387-88, 171 L. Ed. 2d at 357.

Defendant was arrested on October 21, 2002, and in 2002 or 2003 waived his right to counsel, electing to represent himself. The first judge on the matter approved this waiver but ordered the Public Defender to provide standby counsel to assist defendant. Defendant does not contend that this initial ruling was in any way erroneous.

The events bringing into question defendant's mental capacity to waive counsel are these. On August 8, 2005, defendant argued that his motion to disclose a confidential informant should not be denied because the State must have obtained its information from someone. Therefore, he reasoned, there had to be an informant. Then, on October 20, 2005, defendant claimed that someone from the Prosecutor's Office tampered with the films from the motel security cameras. This claim was developed further on March 3, 2006, at the continuation of a suppression hearing. At that time, defendant claimed that the police entered his room the day before the sexual assault was reported and removed the majority of the evidence, storing it on a shelf in the police station. He asserted that films from the motel's security cameras proved this claim because they contained "hidden frames" that depicted this occurring.

At another motion hearing on April 3, 2006, this one seeking the judge's recusal for alleged racial enmity, the defendant accused the prosecutor of taking the court's official tape recording of the domestic violence trial brought against him by Z.C. and tampering with the tape, making portions inaudible. He then accused the judge of having racial bias toward him because the judge said he was "articulate." Defendant then returned to an earlier motion seeking removal of his assigned standby counsel. Defendant asserted that, when standby counsel was thirteen or fourteen years old, he and his friends had yelled racial epithets at defendant and defendant's friends and had then assaulted them with sticks to chase them "out of the north end because niggers weren't allowed on the north end." The judge denied the recusal motion, assuring defendant that he would be tried fairly but reminding him that he would have to present his case in accordance with the court rules.

Defendant's claims respecting the films from the motel security cameras were again raised at this motion. He claimed that the films showed the police going to the motel office, getting a key, walking to his door, putting the key in his door, opening his door, and walking into his room the day before the search warrant was issued, even though the films when viewed in court did not show this at all. Defendant asserted that he wanted the Public Defender's office to provide him with prints of the frames showing what the police did, but he did not have their cooperation. Defendant further claimed that an investigator from the Public Defender's office saw the film with him but would not support his account. He then told standby counsel, "[W]hen you were there, you seen the man inside. I knew that. I knew that. I'm not going to get no aid when it comes to the Public Defender's Department." When the judge reassured him that he would have their cooperation, defendant again lashed out at his standby counsel.

Defendant returned to his complaint about the "racial thing" that had "been going on since he's 14-years old." At that juncture, standby counsel made a motion, "as [a] friend of the [c]court," that there be a "mental examination" of defendant because he was no longer capable of representing himself. Counsel believed defendant told the judge "about delusions that he's having and things that he envisions, which just aren't the truth, and I don't think he's capable of representing himself at this point." The prosecutor agreed, moving to revoke defendant's pro se status because he was "clearly delusional." Defendant argued against such revocation, asserting that unspecified case law gave him the right to represent himself so long as he was not before a jury and did not become "outlandishly rude and disruptive." The judge told counsel to file a formal motion.

During this colloquy, defendant objected to standby counsel placing matters on the record. The judge noted that standby counsel had not addressed the judge until defendant mentioned "prejudicial things that he did when he was 14 years old." Defendant declared, "He stands up -- and they are -- they are things that true. In fact, I even have pictures of him in Club 63."

The judge then began discussing issues concerning the pre- trial memorandum, at which point defendant commented that the prosecutor could say to the jury that there were four inches of snow on the ground on the Fourth of July, and the jury would believe him. This made the judge "start to think that [the prosecutor was] right making his motion that [defendant was] not completely competent." Defendant responded by talking at length about how his family had lived in Elizabeth for two hundred years and about an old saying his father had. As the hearing progressed, defendant returned to the videotape from the motel security cameras and claimed that the type of film used in security cameras has sixteen frames behind each picture, which you can see with your naked eye. When the judge said he knew nothing about it, defendant replied:

I do because I read up on it and I did it . . . and I did it because when I looked at the film, I know it should be there. What should be there is the victim coming to my house every night for at least a week and a half before the night that she says, well, I just met him today. I brought him some --it's on that film.

Trust me. It's on the film.

The judge then reviewed the charges against defendant, explaining the possible prison terms and the effect of NERA on those terms if defendant were convicted and what would merge for sentencing purposes. Defendant then rejected the State's offer of a plea bargain under which defendant would serve either a seven- or ten-year term of imprisonment*fn13 for the sexual assault concurrent to other pending cases. In rejecting the offer, he claimed that the evidence that would appear on the hidden frames of the security tape would exculpate him.

Defendant then declared that a ten-year sentence was the same as life in prison as he would receive an automatic indefinite civil commitment thereafter. Told that a civil commitment was not automatic, defendant insisted that it was, declaring that persons had received civil commitments simply for exposing themselves in public. Defendant stated that his plan was to convince the State to offer a less severe plea bargain of time served, which he expected to accomplish when he presented it with the hidden frames from the security tape as they would prove he had had a relationship with S.M. for several weeks before the alleged crimes. Thus, it was essential that the State be ordered to produce the hidden frames.*fn14

Later, defendant moved again "for the removal of the Public Defender's Department from this case" because he did not trust that representation. The judge advised against such a move, indicating that defendant needed the Public Defender's help and that to relinquish that help "would be the biggest mistake that you ever make." Defendant then made comments that left standby counsel feeling that he had been "insulted."

The State subsequently filed a formal motion to revoke defendant's pro se status. At the motion hearing on June 7, 2006, the prosecutor noted that defendant had accused standby counsel of "throwing rocks at him in the north end of Elizabeth as a child" and that standby counsel "didn't live in the town." Regarding the tape of the domestic violence proceeding, the prosecutor observed that defendant "feels that the State somehow intercepted--the Prosecutor from the State intercepted the tape from the [c]court--doctored the tape." The prosecutor declared that defendant did "not have a grip . . . on what's going on," had been dilatory in his pretrial applications, and was delusional. The judge stated that he did not know if defendant was "delusional," but agreed his tactics were disruptive, had caused delays, and his comments to counsel had been "derogatory."

Defendant then engaged in a contentious, rambling dispute about discovery that the State and the Public Defender's Office failed to provide; alleged that his pens and legal work were tampered with by prison authorities in the county jail and that he had filed a complaint about this; and declared that he had filed multiple ethics complaints against standby counsel, requesting that he be removed from the case. Defendant observed that there was no basis to remove his pro se status because he had not been disruptive.

The judge then examined defendant with respect to his self-representation:

Q. How far have you gone in school? What's your educational background?

A. I finished a GED and I finished a year of college at --Q. Okay.

A. -- Trenton State.

Q. And have you ever been diagnosed with any kind of learning disability or emotional illness?

A. With any disability[?]

Q. Any learning disability or emotional illness?

A. Your Honor, if -- if I'm -- if I'm --Q. That's a yes or no. Have you ever been diagnosed with any kind of a learning disability or an emotional illness?

A. I've seen no papers on the diagnosis, Your Honor.

Q. You've never gotten any kind of a diagnosis for an emotional illness[?]

A. I've -- I've never seen papers on a diagnosis, Your Honor.

Q. I'm not asking you whether you've seen something. Have you ever been diagnosed as having an emotional illness?

A. Well -Q. Have you ever been to a doctor --A. No, Your Honor.

Q. -- for an emotional illness?

A. [A]s far as -- as far as I know, I have not. I have been diagnosed for disabilities. However, I have a -- a -- I have doctors records that I would like to present to the Court on disabilities.

The judge did not ask defendant to present his medical records, but rather changed subjects. Later, he questioned defendant about his work history:

Q. Okay. Now, just tell me what your work history is.

A. Pardon me.

Q. What kind of jobs have you been involved in in the past?

A. Your Honor, I've been disabled since '77.

Q. Okay. And how old were you then?

A. Oh, approximately, 18 or 19 years old.

The judge made no inquiry about the nature of defendant's disability and did not seek any evidence about it to assure himself that the disability was not based on mental illness.

The judge reserved decision on the State's motion without addressing standby counsel's request for a mental-status examination, thus permitting defendant to continue representing him- self. The judge merely warned defendant that he would revoke his pro se status if he became disruptive at trial.

There was another exchange with the judge on July 17, 2006, at the start of trial that may well have suggested possible paranoia when defendant stated:

MR. WORTMAN: [Standby counsel] is sitting here like a doll in the back of the car shaking his head like it's very funny. I don't think it's funny. He's got my life --THE COURT: I don't think he thinks --MR. WORTMAN: -- on the table.

THE COURT: -- it's very funny either, frankly.

MR. WORTMAN: Well, why would he shake his head like a doll in the back seat of a car?

THE COURT: Well, I think he --MR. WORTMAN: And then he laughs.

The judge noted for the record that standby counsel "was shaking his head yes . . . when you said you were not." Defendant interrupted and disputed the judge's characterization, saying that standby counsel was shaking his head from side-to-side in a "sarcastic gesture."

To summarize, there was significant evidence that defendant was delusional, including: claims he made about discovery violations by the State; the prosecutor damaging the tape of the domestic violence trial to render portions of it inaudible; the sixteen hidden frames behind each picture on the films from the motel's security cameras that he could see but others could not; the hidden frames showing that the victim regularly visited his room; the hidden frames showing that the police gained entry to his room and searched it before the alleged crime was reported; standby counsel's purported long-term racism; and defendant's reliance on the hidden frames to reject a generous plea offer when the evidence of guilt was strong. The perceptions of the prosecutor and standby counsel that he was delusional had support in the record, as the judge tacitly acknowledged.

It was the duty of the judge to determine whether the defendant had the mental competence required by the line of cases culminating with Edwards and McNeil to exercise his Faretta rights and waive his constitutional right to counsel. That duty could not be discharged on this record without a mental-status examination and an expert opinion on whether defendant was mentally ill and not competent to waive his right to counsel. The judge erred when he failed to order the examination requested by counsel.


Defendant next contends that the judge erred by allowing him to waive counsel without first exploring "from testimony under oath" whether there was any basis in fact for his allega- tions about an unspecified "conflict of interest" with the Public Defender's office in the past and standby counsel's purported racist activities years before. Defendant asserts that only after obtaining such proofs could the judge determine whether he was entitled to legal representation by a pool attorney who was not employed by the Public Defender's office.

As a general proposition, "[w]hen the alternative is representation by the Public Defender, choosing to proceed pro se constitutes a voluntary waiver of counsel." State v. Crisafi, 128 N.J. 499, 517 (1992) (citations omitted). Where representation by the Public Defender is concerned, a "defendant does not enjoy an unencumbered right to counsel of his or her choice." Ibid. (citation omitted); State v. Ortisi, 308 N.J. Super. 573, 588 (App. Div.) (citation omitted), certif. denied, 156 N.J. 383 (1998). When a defendant is dissatisfied with the counsel assigned by the Public Defender, the defendant must make a showing of "substantial cause" in order to obtain an assignment of different counsel. State v. Harris, 384 N.J. Super. 29, 59 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 188 N.J. 357 (2006).

The same standby counsel represented defendant throughout the pretrial, trial, and sentencing proceedings. Defendant objected to the assignment of this particular attorney because of alleged racial animus and to representation by the Public Defender due to conflicts of interest on many occasions over the years, some of which we have described above.

For example, on October 20, 2005, defendant alluded to conflicts he had with the Public Defender's office generally and with his assigned standby counsel specifically. He alleged that he needed a particular witness to testify on his behalf, but the Public Defender would not allow him to call her because standby counsel had represented the witness's son on a check-cashing charge, which he claimed created a conflict of interest. Standby counsel denied knowing of any such woman, and defendant accused him of deliberately refusing to say the name, claiming that also was a conflict of interest. Counsel denied having any idea of what defendant was speaking. Defendant said that he wanted legal representation from any attorney who was not directly employed by the Public Defender because he had had a conflict with the Public Defender for a decade or more. Standby counsel denied knowing anything of the sort. The judge did not on this or any other occasion explore the factual basis for defendant's complaints. Instead, he responded that "you don't get to select a lawyer of your choice unless you are paying them." This issue arose again months later.

We recognize defendant at no point specifically described the initial conflict of interest with the Public Defender's office and presented no proofs to support his allegations of racial animus by standby counsel, although he claimed to have them, including an incarcerated witness. Standby counsel did explain his involvement with defendant, who had been a client of the Public Defender's office in the past, but we have found no place in the record where he expressly denied the alleged racially biased conduct when he was a juvenile. Even if he had denied it, the judge would still have been required to conduct an evidentiary hearing to determine whether defendant had "substantial cause" justifying the assignment of new counsel.

We also recognize that defendant never filed a formal motion to remove standby counsel and the Public Defender from representing him. However, we have required judges to act cautiously when dealing with a pro se defendant who may be mentally ill, see Russo, supra, 243 N.J. Super. at 403, and the judge ought not to have assumed that these claims were a mere ploy to change counsel simply because defendant did not like the one appointed. Certainly, a true conflict of interest or racial animus constitutes "substantial cause" justifying an assignment of different counsel. Harris, supra, 384 N.J. Super. at 59 (citation and internal quotation marks omitted). The judge erred when he failed to address the merits of defendant's claims respecting 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 in order to determine whether that waiver remained knowing, voluntary, and intelligent when defendant had initially waived counsel three years prior to trial.

In Crisafi, supra, 128 N.J. 499, our Supreme Court described a judge's obligations in dealing with a waiver of counsel in a criminal case:

To ensure that a waiver of counsel is knowing and intelligent, the trial court should inform pro se defendants of the nature of the charges against them, the statutory defenses to those charges, and the possible range of punishment. The colloquy between the court and the defendant will test the defendant's understanding of the implications of the waiver, and will provide appellate courts with an objective basis for review.

In general, the court should also inform defendants of the technical problems they may encounter in acting as their own counsel and of the risks they take if their defense is unsuccessful. Further, the court should inform the defendants that they must conduct their defense in accordance with the relevant rules of criminal procedure and evidence, that a lack of knowledge of law may impair their ability to defend them- selves, and that their dual role as attorney and accused might hamper the effectiveness of their defense. Also, the court should explain to the defendants the difficulties in acting as their own counsel and should specifically advise the defendants that it would be unwise not to accept the assistance of counsel. [Id. at 511-12 (citations omitted).]

Our Supreme Court again considered the issue of self-representation in Reddish, supra, 181 N.J. at 578. The Court recognized the conundrum judges face when an accused can argue on appeal that he was denied his right to counsel if he proceeded pro se and, on the other hand, can argue that he was deprived of his Faretta right if he was represented by counsel. Id. at 592. As a result, the Court offered the following guidance:

We take this opportunity to amplify our directive in Crisafi, supra, that courts engage in a penetrating examination of the knowingness and intelligence of a defendant's attempted waiver of the assistance of counsel. We encourage trial courts to explore subjects that are inherent in, or offshoots of, those identified in Crisafi. By way of illustration, those additional areas would include whether defendant will experience difficulty in separating his roles as defendant and counsel; whether defendant understands that he not only has the right not to testify, but also the right not to incriminate himself in any manner; whether he understands that he could make comments as counsel from which the jury might infer that he had knowledge of incriminating evidence (and the difficulty in avoiding such comments); and whether he fully understands that if he crosses the line separating counsel from witness, he may forfeit his right to remain silent and subject himself to cross-examination by the State.

In its discussion with a defendant, the trial court also must advise defendant that if the court allows him to represent himself, he will thereby waive any and all later claims that his self-representation constituted ineffective assistance of counsel. Further, as with all areas of inquiry regarding the decision to waive counsel, the trial court must question defendant to ascertain whether he actually understands the nature and consequences of his waiver. The trial court must explore fully the bona fides of a defendant's claim of knowingness. It must determine whether a defendant's understanding is real or feigned. Courts must be sensitive, as this trial court was, to attempts by a defendant to claim "knowingness" merely to assuage the court's concerns about the consequences of pro se representation. To that end, beyond a defendant's mere yes or no response, the court must make appropriate credibility determinations bottomed on specific facts, observations, and conclusions. The court must ask appropriate open-ended questions that will require defendant to describe in his own words his understanding of the challenges that he will face when he represents himself at trial. For example, a defendant may be required to explain what difficulties he believes he will confront or create when he examines or cross-examines witnesses. . . .

As our opinion recognizes, a defendant who waives counsel jeopardizes his constitutional right against self-incrimination, and, thus, his liberty. The requirement that a defendant's waiver of counsel be knowing would ring hollow if courts did not take extensive prophylactic measures to assess a defendant's understanding of those rights. In offering this additional guidance, we have confidence that our courts will exercise sound discretion in determining whether the waiver is knowing and intelligent given the unique circumstances of each case. [Id. at 593-95 (citations and internal quotation marks omitted); accord Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 323, 92 L. Ed. 309, 320-21 (1948); State v. DuBois, 189 N.J. 454, 467 (2007).]

At the hearing on the State's motion to compel defendant to be represented by counsel, the judge asked about defendant's trial experience, and defendant related that he had appeared pro se three times in the past and obtained three acquittals. The judge did not ask defendant whether these trials were to the bench or a jury or whether they were for indictable offenses or municipal charges; and he did not inquire about the specific crimes with which defendant had been charged when he previously appeared pro se.

The judge asked defendant about the current charges pending against him, and he could identify them by name but could not explain the elements of each charge. He said he had "written [the elements] in a motion to the [c]court." He learned them from a book, although he "never sat and read it." He said he could read and understand the book, but the judge did not ask any open-ended questions to determine whether defendant could articulate the nature of the crimes and the elements of each.

Defendant admitted he could not tell the judge what his defenses were, although he "informed the prosecution of what my defenses were." He thought one defense was consent. As to the range of sentences for each charge, defendant explained "that the prosecution told the court that they had not reduced it to writing yet" at the time of the trial memorandum. At this point, the prosecutor interrupted to supply the information that defendant could not articulate; the maximum sentence was life, and the plea offer was seven years. The judge then asked:

Q. Do you understand that . . . if you are convicted, you face life in prison? And there was a plea offer of seven years. So you're gambling seven years against life imprisonment.

A. I've already got seven years in, Your Honor.

The judge did not seek to clarify this evident misunderstanding of the consequences of a conviction after trial. Instead, he merely asked if he understood that the Prosecutor's burden of proof had to be beyond a reasonable doubt. Defendant stated he was aware of that. He further understood that he was bound by the Criminal Rules of Procedure as to what he could and could not do, but the judge did not explore that subject further.

The judge asked if defendant had prepared voir dire questions for the jury, and defendant replied that he had done so. When asked if he knew how to present evidence in his case, he replied that he was "pretty much aware of it." The judge did not seek to elicit defendant's understanding of how to present evidence in his case. Further on in the examination, the judge inquired about the opening statement:

Q. When you get up in front of the jury to give your opening statement, you can't say, I didn't do this or you can't -- you can't give factual like testimony. Do you understand that?

A. I understand that I can't testify before the jury without the [c]court's leave of a self -- a self-declara -- self-declarations at the end of trial and -- [Defendant confers with standby counsel]

Your Honor, I understood -- I understood the theory of laws to give a jury an ultimatum of what could have happened or what has happened. As far as the evidence is concerned, there's no evidence to support anything that the prosecution has brought to this [c]court. . . .

Q. Just so you are clear. If you don't properly -- if you have evidence that you wanted to offer and you don't properly do it, you may not be able to get that evidence before a jury.

A. Okay.

Q. You -- understand that.

A. Then -- wait. Your Honor, let me ask the [c]court. I have -- I have some evidence that I need to submit to the [c]court. I need to be documented --This examination of defendant certainly did not satisfy the requirements of Crisafi, supra, 128 N.J. at 511-12, and Reddish, supra, 181 N.J. at 593-95. There was not an adequate basis in the record to support a conclusion that defendant's waiver of counsel was knowing and intelligent. Thus, at this point the judge erred when he denied the State's motion to require representation of defendant by counsel.

On July 17, 2006, at the start of trial, the judge revisited defendant's decision to represent himself and sought to "reaffirm that that's what you want to do." Defendant again stated that he did not want to represent himself, but he had no choice because he "refuse[d] to be represented by the Public Defender's Office" and had a personal "grievance against [standby counsel]." The judge stated that defendant was not entitled to counsel of his choosing.

The judge then examined defendant with respect to his awareness of the charges against him. Defendant named the offenses in the indictment, and the judge specified their elements, their penalties, and possible lesser-included offenses. Defendant acknowledged receipt of this information but was not asked to indicate that he understood it. Defendant repeatedly expressed complete confidence that the charges would be dismissed because there was no witness and indeed requested that the judge at that point dismiss the charges. The judge then ruled that the application to dismiss the offenses was premature, as the jury had not heard any evidence, and the evidence could reveal lesser-included offenses. Defendant stated, "I'm aware that the elements are not present and it's not up to the jury to judge the law. It is up to the trier of fact."

The judge also discussed the technical problems that defendant would face on summation. Specifically, defendant could not deny that he did the acts that were alleged because the denial would be unsworn. However, he could argue that the State had not proven its case. The judge warned that he could not help defendant by telling him what to say and not to say on opening and summation. Defendant responded that he was now reading the law regarding the difference between testimony and summation.

The judge then stated that there were both advantages and disadvantages to proceeding pro se without specifying what they were, and defendant would have to make a decision as to what he wanted to do. Defendant responded, "I don't want to represent myself," he never wanted to represent himself, but was being forced to do so because the judge was not willing to deal with the claim of a conflict of interest with the Public Defender's office and a personal conflict with standby counsel based on racial animus.

The judge sought another acknowledgment that defendant was bound by the procedural and evidentiary rules, and he provided defendant with an explanation of the role of standby counsel. The judge then asked defendant if he was aware of his defenses. Defendant responded, "I am not aware of my defenses because I don't have -- well, I'm aware of what I wanted to be my defense -- but the Public Defender's Office have impeded that -- that defense." The judge then outlined certain possible defenses as examples, namely, "[i]t was consensual," "I didn't do it," "I didn't give anybody any drugs," "the whole thing was a setup . . . in collusion with someone else," and "any other number of other defenses." The judge then said that it appeared defendant was arguing that all charges were a setup.

The judge informed defendant that he would have the opportunity to consult with standby counsel during the course of the trial. He suggested that most of the rape cases he had seen involved a defense of consent. Defendant responded, "It did not occur in the time limit -- in the time and space that the prosecution has . . . filed these charges against me. It did not occur --." The judge broke in and stated that it sounded like defendant knew what defenses he was going to present. Defendant replied that he had "a pretty good idea." Minutes later, defendant indicated that he required his medical records to prove physical injuries, which established that the aggravated sexual assault and resisting arrest could not have occurred. The court noted that this appeared to be part of defendant's defense. The judge ended by warning defendant again that he would be "far better off defended by a trained lawyer" and that it was "unwise to try a case to represent yourself." Defendant replied:

Your Honor, . . . I agree with the [c]court wholeheartedly. I do not have the experience or training that [the prosecutor] has.

It's a dis -- it's not only a disadvantage.

It's a -- equivalent of Samson and Delilah.

I agree. There is no . . . there is nothing to look forward to representing myself.

Defendant again asked the judge to appoint an attorney from outside the Public Defender's Office. The judge declined, saying that he had no power to do so and defendant would be better off if he were represented by the Public Defender. Defendant stated that the judge would not find him in good hands with the Public Defender if he knew "the full length of the circumstances." He repeated his earlier assertion that the judge's decision left him no effective choice in the matter and that he accordingly was compelled to represent himself.

The judge ruled that defendant effectively chose to represent himself and summarily concluded that defendant had "knowingly and voluntarily waived [his] right to the Public Defender to counsel." The judge made no fact-findings respecting defendant's competence to defend himself and the basis for the judge's conclusions that there had been a knowing and voluntary waiver of the right to counsel.

During trial on July 20, 2006, just as the State called S.M. as its witness, defendant abruptly sought to relinquish his self-representation and have standby counsel represent him, asserting that he was "forced" to do so because of discovery violations by the prosecutor. The prosecutor opposed any change of counsel, and standby counsel indicated that he was not immediately prepared to go to trial.

After excusing the jury, the judge asked defendant if he was "giving up [his] self-representation" but could not get a direct answer from him. The judge pressed defendant to decide if he wanted standby counsel to represent him or if he wanted to represent himself. After consulting with standby counsel, defendant stated that he would represent himself because he was being forced to do so, again repeating his allegation of a racial problem between himself and counsel. He agreed that he would continue to represent himself throughout trial.

Prior to S.M.'s testimony at trial on July 24, 2006, defendant again attempted to relinquish his right to self-representation and have standby counsel step in, asserting that he "quit" because the prosecution had not given him needed discovery, and the trial court failed to give him the respect afforded a defense attorney. The judge refused to relieve defendant from acting as his own attorney, indicating that defendant had chosen to represent himself and could therefore elect to participate or not participate at trial as part of that self-representation.

Despite these multiple opportunities to fully explore whether defendant's waiver of counsel was competent, knowing, and intelligent, the judge did not fully inform defendant of the nature of the charges, information he was required to convey by Crisafi, supra, 128 N.J. at 511, nor did he inform him of the statutory defenses to the charges, ibid. The judge did not sufficiently inform defendant of the range of punishment for each of the offenses with which he was charged. Ibid. He did not adequately advise defendant of the technical problems that he would face acting as his own counsel. Ibid. He did not explain how defendant's lack of knowledge of the law and his dual role as defendant and counsel might impair his defense. Id. at 512.

The judge did not explain how defendant's fundamental legal rights might be affected by waiving his right to counsel.

Reddish, supra, 181 N.J. at 592. Nor did he amply inform him that he might not do as well in his own defense if he waived counsel. Ibid. He did not explain defendant's rights not to testify and not to incriminate himself and how those rights might be waived by comments he might make as counsel. Id. at 594. He also did not warn defendant that the jury could infer from comments he made as his own counsel "that he had knowledge of incriminating evidence" and that it would be difficult to avoid making such comments. Ibid. The judge did not warn him that his comments as counsel might cross the line into his role as a defendant and subject him to cross-examination, forfeiting his right to remain silent. Ibid. The judge did not tell him that he was waiving any future claims of ineffective assistance of counsel in representing himself. Ibid.

Last, contrary to Rule 1:7-4(a), the judge did not make fact-findings. He did not explore the bona fides of defendant's claim of a knowing waiver of counsel and determine whether it was "real or feigned." Reddish, supra, 181 N.J. at 594. He did not make "credibility determinations bottomed on specific facts, observations, and conclusions." Id. at 595. He did not ask open-ended questions respecting defendant's understanding of the challenges he would face as a pro se litigant. Ibid. He did not explain the difficulties defendant would face doing direct and cross-examination. Ibid. In short, the judge did not use "extensive prophylactic measures to assess" defendant's understanding of his rights. Ibid. His conclusion that defendant's waiver of counsel was competent, knowing, and intelligent is not supported by the record.

In this respect, we note that the Crisafi Court observed, "In the general run of cases, the failure of the trial court to advise the defendant would compel reversal of a conviction." Crisafi, supra, 128 N.J. at 512. However, the Court found that the case before it was a rare exception because the record established "that the defendant actually understood the risks of proceeding pro se." Id. at 513 (citations omitted). As such, the waiver sufficed. Ibid. Crisafi was "a court-wise criminal who fully appreciated the risks of proceeding without counsel, and . . . he decided to proceed pro se with his eyes open." Ibid. (citation omitted). He was middle-aged, had a lengthy criminal record, had tried at least one case pro se, and was acquitted. Id. at 513-14. Further, he may have educated himself while incarcerated and obtained a bachelor's degree in business law, a fact Crisafi disputed. Id. at 514-15.

The Court found, "Although the trial court failed to inform defendant of the charges against him, the sentencing alternatives, and specific pitfalls of proceeding pro se, the record indicates that defendant was sufficiently informed on those issues to waive counsel." Id. at 515. In the end, the Court concluded "that defendant sought to manipulate the system by wavering between assigned counsel and self-representation and by asserting violations of his right to counsel while rejecting every attorney assigned to his case." Id. at 517. The Court held that "a trial court confronted with a wily defendant may consider the efficient administration of criminal justice and force a defendant to choose between appointed counsel and proceeding pro se." Id. at 518 (citations omitted).

We recognize that an argument could well be made here that defendant is one of those rare exceptions recognized by Crisafi. He was, after all, a court-wise, middle-aged criminal with a very lengthy record and claimed prior successful pro se trial experience. See id. at 513-14. However, no conclusion that defendant was manipulating the system and actually understood the risks of proceeding without counsel, see id. at 517-18, could possibly be drawn here without the benefit of a mental-status examination and expert opinion in light of what seems to have been clearly delusional thinking.

We know that defendant has no proven history of mental illness, as was true with so many of these cases. See, e.g., Edwards, supra, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345; McNeil, supra, 405 N.J. Super. 39. But the absence of such a history is not determinative of the need for a mental-status examination because the trial judge did not effectively pursue a clearly required line of questioning respecting the cause of defendant's disability from the time he was a teenager nor did the judge get a straight answer to his questions about defendant's mental health. And one might well question whether some mental illness was demonstrated by his history of approximately seventy arrests, mostly for petty crimes.


We have not forgotten defendant's contention that the judge erred in ordering a First Assistant Public Defender to appear at trial on July 28, 2006, when standby counsel called in sick. At an earlier suppression motion on October 3, 2005, standby counsel advised the judge that he would be unavailable the following afternoon for the continuation of the hearing. The judge suggested that the Public Defender provide a substitute standby counsel. Counsel replied, "That is not possible. Nobody has knowledge of this case. I've been working on it, now, for three years." The judge responded by telling counsel to "try to have somebody stand in." The next day, standby counsel left the courtroom around noon and was replaced by another Assistant Deputy Public Defender. Defendant was given the opportunity to "discuss the matter" with substitute counsel and did not complain about the substitution.

At trial on July 28, 2006, when standby counsel was sick, the State's pharmacology expert, Dr. Brick, was scheduled to testify in a Rule 104 hearing. The Public Defender sent the same substitute standby counsel. Defendant objected to the substitution because assigned standby counsel was familiar with the problems he was "about to confront" in the Rule 104 hearing. Additionally, the substitute standby counsel had appeared once previously but could not provide him with any assistance. Defendant sought to have the trial postponed until his regular standby counsel was available. The judge denied defendant's request, refusing to "let stuff like that interrupt" the trial.

At that point, substitute standby counsel asked for a stay to permit the Public Defender to appeal the order to proceed with the trial because she did not "have any knowledge of this case" and therefore could not give defendant "competent counsel." The judge denied her application for a stay, indicating that she only had to act as defendant's "legal advisor as to technical issues" during trial. Defendant objected that the substitution of standby counsel denied him his constitutional right to counsel, but the judge responded that defendant was his own counsel and the substitute Public Defender was acting only as standby counsel. Defendant continued to object that she was "an advisory [counsel] that's unwanted" by him.

The trial proceeded, and the State called Brick as its witness. The judge allowed defendant to contest the admissibility of Brick's opinion evidence at a Rule 104 hearing. Defendant then conferred with substitute standby counsel, who thereafter told the judge that defendant was asking her questions that she could not answer, and she could not gauge their importance to the case. She did not "know enough about this case" and did not know anything about Brick so as to render "competent counsel" to defendant. The judge inquired whether she needed time to review Brick's report, but she indicated that defendant's questions concerned more than the report and went to the issue of what questions he should ask of Brick at the Rule 104 hearing. Substitute standby counsel continued that she did not "have enough knowledge about [defendant's] case in order to advise him how to proceed with this witness."

The judge then stated that substitute standby counsel could have "10 or 15 minutes to review the report" and thereafter explained to defendant what a Rule 104 hearing was intended to achieve. At that point, the substitute attorney noted that she could "answer the basic legal questions" about the admissibility of Brick's testimony but, because she had not read S.M.'s state- ment, she was unable to address important underlying admissibility issues.

The judge again indicated that substitute standby counsel could have "ten minutes to read the report," whereupon defendant asked if the morning break could then be taken. The judge was apparently vexed by that question because he ordered that the jury be brought out immediately. The judge indicated that he was not allowing substitute standby counsel time to read Brick's report because defendant had "already reviewed the report . . . [and] had it for months." Thereafter, Brick testified that a person's unconsciousness and memory loss following ingestion of a beer, as described by S.M., were consistent with that person's ingestion of certain drugs.

The judge failed to appreciate the role of standby counsel. Although they do not try the case, they are intimately familiar with the evidence and issues in the case and necessarily draw upon that knowledge in providing assistance to the accused. Rules of evidence and procedure are not applied in a vacuum, as the developments that day at trial clearly demonstrated. We are satisfied that it was an abuse of the judge's discretion to require defendant to proceed with the trial in the absence of assigned standby counsel. The judge ought to have carried the trial until standby counsel was well enough to proceed.


We now turn to defendant's first argument, which is that the prosecutor engaged in misconduct, both at the evidential phase of trial and during his summation, that singularly and cumulatively deprived defendant of a fair trial.

"[P]rosecutors occupy a unique position in the criminal justice system [in] that their primary duty is not to obtain convictions but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988) (citation omitted), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). "'It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). During summations a prosecutor is "duty bound to confine his comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Acker, 265 N.J. Super. 351, 357 (App. Div.) (citing State v. Marks, 201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986)), certif. denied, 134 N.J. 485 (1993).

Certainly, not every departure from this requirement mandates reversal. See State v. Johnson, 216 N.J. Super. 588, 614 (App. Div.) (citing R. 2:10-2 and finding that a prosecutor's comment was "not capable of producing an unjust result"), certif. denied, 107 N.J. 647 (1987). Prosecutorial misconduct does not warrant reversal "'unless the conduct was so egregious that it deprived defendant of a fair trial.'" State v. Harris, 156 N.J. 122, 194 (1998) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987)). The prosecutor's statements must constitute a clear infraction and "substantially prejudice[] defendant's fundamental right to have a jury fairly evaluate the merits of his defense" in order to warrant a reversal. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

In considering "'whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we [will] consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" State v. Marshall, 123 N.J. 1, 153 (1991) (quoting Ramseur, supra, 106 N.J. at 322-23), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial" because a failure to timely object indicates that trial counsel did not consider the remarks prejudicial when made, and a failure to timely object deprives the trial court of an opportunity to cure. Timmendequas, supra, 161 N.J. at 576. "Even if defense counsel fails to object, '[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved.'" Ibid. (citation omitted).

We have reviewed each of defendant's concerns about the prosecutor's conduct and, with few exceptions, find that they "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The few exceptions are the prosecutor's statements that:

(1) The jury should not "feel sorry" for defendant but should envision S.M.'s "nightmares" and "the fear and the helplessness she's feeling."

(2) The State had not seized any money from defendant's room, and "there's no indication that the State had any right to seize his money or his personal property, [or] any money from his personal property." Further, the absence of any monies in defendant's possession was not a reason to "feel sorry for this man."

(3) "Take a look at the scratches on her neck. I mean, the idea through cross-examination that she somehow mutilated herself to make this case, you know, what kind of sick person, you know, she scratched herself, she dug herself, a fingernail into herself, she scraped her back so she could make a case against this guy for what?

And that's . . . the only explanation for this . . . is that she somehow mutilated herself."

With respect to the first set of remarks, defendant argues that the comments were "egregious" because they urged the jury not to have sympathy for defendant but were the "prosecutor's open play for sympathy toward [S.M.]" Defendant claims that he was "severely prejudiced by these remarks" and that "they alone warrant reversal" of his convictions.

The disputed comments were clearly improper. The issue is whether the prejudice was remedied. We are satisfied that it was. The prosecutor himself attempted to cure any possible prejudice when he argued to the jury both that

I'm not asking you to feel sorry for her [S.M.]

That wouldn't be appropriate, either.

Please try to weigh the evidence dispassionately, without feelings for either side. And this is a simple case, and . . . if [S.M.] is telling the truth, then he's guilty, and if he's telling the truth, he's not guilty.

Additionally, the judge instructed the jury that "it's your duty to weigh the evidence calmly and without passion, prejudice, or sympathy. Any influence caused by these emotions has the potential to deprive both the State and the defendant of what you promised them, a fair and impartial trial by fair and impartial jurors." The jurors are presumed to have followed this instruction. State v. Nelson, 173 N.J. 417, 478 (2002). Thus, the trial court's charge averted any prejudice to defendant from the prosecutor's improper remarks.

With respect to the prosecutor's remarks quoted in paragraph (2) above, defendant asserts that this comment pertained to the absence of "sums of money consistent with the commercial distribution of drugs" in his room, and he maintains that, "[t]hrough this remark, the prosecutor misleadingly indicated that the State would not have been authorized to seize money had it been found, and that the jury should not accept defendant's contention that no such sums of money existed."

In his summation, defendant argued that the "State's evidence shows that there was no drug money" and "that there was no money in the apartment at all," except for a "jar of pennies." Thus, defendant asserted that, when he was arrested, he "had no money at all." In his subsequent summation, the prosecutor addressed this argument, as he was permitted to do. Read in context, it becomes apparent that the disputed comment was part of the prosecutor's measured response to defendant's tacit claim of impecuniousness. Such a measured response to an opposing summation argument is permissible, State v. Murray, 338 N.J. Super. 80, 88 (App. Div), certif. denied, 169 N.J. 608 (2001). In any event, the comment was not "'so egregious that it deprived defendant of a fair trial.'" Harris, supra, 156 N.J. at 194 (citation omitted).

With respect to the prosecutor's comments in paragraph (3) above, defendant objected that there was no testimony concerning self-mutilation, but the trial court merely directed defendant not to interrupt again. Defendant is correct in that, during his cross-examination of S.M., he only asked whether her injuries could have been the result of scratches made by her daughter or of a fall caused by her drunkenness. Defendant did not broach the possibility that S.M.'s injuries may have been the result of self-mutilation. Defendant now argues that "[b]y falsely suggesting that defendant was attempting to show that the injuries were self-induced, the prosecutor improperly indicated that defendant was presenting the jury with meritless contentions in a desperate attempt to grasp at straws."

Defendant is correct that the prosecutor's remarks respecting the self-mutilation had no basis in the evidence and were not made in response to any argument advanced by defendant. However, the record indicates that the disputed comment had little possibility of prejudicing defendant. It is quite clear that the issue was whether or not defendant caused the injuries to S.M. and not whether S.M. mutilated herself, as the jury must have understood. We do not find that the comment was "'so egregious that it deprived defendant of a fair trial.'" Harris, supra, 156 N.J. at 194 (citation omitted).

In conclusion, for the most part, the prosecutor did not contravene the limits on a forceful summation. Because there were no significant individual errors, there was no cumulative or aggregate error that had the capacity to deprive defendant of a fair trial. State v. Rose, 112 N.J. 454, 523 (1988); State v. Orecchio, 16 N.J. 125, 129-30 (1954).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are found in Points II, IV, V, VI, VII, VIII, and IX. We add only the following comments:

With respect to defendant's claim that his conviction violated state and federal double-jeopardy protections, there were neither "successive prosecutions" nor "multiple punishments" for the same offense. He was prosecuted, tried, and convicted only once for aggravated sexual assault against S.M. by one of two methods, and he was sentenced only once on that conviction. Each method contained an element not present in the other, precluding a claim of double jeopardy. United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556, 568 (1993); Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 586-87 (App. Div. 1999).

With respect to defendant's concern about the restrictions placed on his manner of testifying and his claim that the judge violated his constitutional right to testify on his own behalf in narrative form, a trial judge has broad discretion regarding the questioning of witnesses. Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971). Such restrictions are permitted by our Rules of Evidence. See N.J.R.E. 611(a) ("The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment."); see also Cestero, supra, 110 N.J. Super. at 273 (noting that control of both direct examination and cross-examination resides within the broad discretion of the trial judge and "we will not interfere with its exercise absent a clear abuse of that discretion" (citations omitted)). No such abuse of discretion exists here.

With respect to defendant's claim that Brick's testimony was not relevant or unduly prejudicial, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice." N.J.R.E. 403(a). A trial court's "decision to admit certain evidence is . . . entitled to broad deference under the abuse of discretion standard." State v. Marrero, 148 N.J. 469, 505 (1997) (citation omitted). "On appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982) (citations omitted). We find no such abuse of discretion.

With respect to defendant's claim that the judge erroneously precluded him from adducing extrinsic evidence impugning the credibility of Z.C. based on her testimony in another proceeding, the judge conducted a hearing and determined that defendant's request was premature because Z.C. had not yet testified. Defendant objected, and the judge stated that such preclusion was necessary because "we don't know what [Z.C.] is going to testify . . . to at all." The court then excused Richard Kuhrt, "subject to recall if there's going to be rebuttal testimony." That ruling was entirely consistent with the provisions of Evidence Rule 607 and not erroneous. We also note that defendant never sought to call Kuhrt after Z.C. testified.

With respect to defendant's claim that the judge denied him due process of law in four respects, none of them have any merit. We have considered defendant's examination of Dr. Lin and find no abuse of the judge's discretion to "exercise reasonable control" over the interrogation of witnesses so as to "avoid needless consumption of time." N.J.R.E. 611(a)(2). We note that defendant voluntarily absented himself from the trial on the morning when the judge discussed a legal ruling in his absence. Although the judge ought to have refrained from doing so, defendant was not prejudiced because the judge repeated the ruling when he arrived. As to the time limitation on his closing, the prosecutor was subject to the same limitation, and defendant was not prejudiced because he finished his remarks.

With respect to defendant's assertion that the trial judge erred in denying his motion for a judgment of acquittal on the drug-distribution charge and his claim that his conviction of that charge was against the weight of the evidence, we "must 'consider the State's proofs in light of the [State v. Reyes, 50 N.J. 454, 459 (1967)] standard and . . . determine therefrom how the motion should have been decided.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting State v. Gora, 148 N.J. Super. 582, 596 (App. Div.), certif. denied, 74 N.J. 275 (1977)). In "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," Reyes, supra, 50 N.J. at 459, we are satisfied that a reasonable jury could have convicted defendant of the drug distribution charge beyond a reasonable doubt.

Defendant asserts that the judge "erred in failing to consider the real-time consequences of NERA sentencing in imposing its sentence"; that the sentence was "draconian" because he "was 56 years old at the time of sentencing and obviously would be at a very advanced age before he is eligible for parole." Defendant was sentenced to an extended term because of his extensive criminal record. The sentence imposed upon him is not "such a clear error of [sentencing] judgment that it shocks the judicial conscience," State v. Roth, 95 N.J. 334, 364 (1984) (citation omitted), and as such may not be disturbed.

In light of our determination of the concerns raised by defendant respecting the errors in permitting self-representation, we reverse defendant's conviction and remand for further proceedings consistent with this opinion. See State v. Fritz, 105 N.J. 42, 59 (1987) ("[T]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." (citations and internal quotation marks omitted)); see also McKaskle, supra, 465 U.S. at 177 n.8, 104 S. Ct. at 950 n.8, 79 L. Ed. 2d at 133 n.8 (finding that the deprivation of the right of self-representation "cannot be harmless"); State v. Thomas, 362 N.J. Super. 229, 244 (App. Div.) (noting that the denial of the right of self-representation "'requires automatic reversal of the conviction'" (citations omitted)), certif. denied, 178 N.J. 249 (2003).

Reversed and remanded.

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