July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRONE BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-05-0881.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2011
Before Judges Lisa and Alvarez.
Defendant Tyrone Brown appeals the July 11, 2008 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant, who appeared pro se, was convicted after trial by jury of first-degree armed robbery, N.J.S.A. 2C:15-1; fourth- degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e); two counts of simple assault, N.J.S.A. 2C:12-1(a)(1), as lesser-includeds of the originally charged second-degree aggravated assaults; and fourth-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(12). He was sentenced on the armed robbery charge to sixteen years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), and a concurrent twelve months subject to six months of parole ineligibility on the charge of unlawful possession of an imitation firearm. The simple assaults were merged into the armed robbery, and the possession with intent to distribute resulted in a consecutive nine months. The convictions were affirmed on direct appeal, State v. Brown, No. A-3472-04 (App. Div. June 19, 2006), but the Supreme Court remanded pursuant to State v. Natale, 184 N.J. 458 (2006), after which defendant's terms of imprisonment were reimposed on a concurrent basis. State v. Brown, 188 N.J. 350 (2006).
The charges stem from defendant's arrest near the scene of a robbery, within minutes of the report, having been apprehended after a short foot pursuit. A bag discarded by defendant during the chase contained an imitation handgun and was later found to bear blood stains from one of the victims, Chen "Roger" Tsai. At trial, a State Police expert testified that footprints found at the location of the armed robbery matched the boots defendant was wearing when arrested. The victims were unable to identify the perpetrator, as his face was masked, although they described him as a man approximately five feet ten inches tall dressed entirely in black.
Prior to trial, the court conducted a hearing on defendant's motion to suppress the clothing he wore the night of the arrest and the subsequent blood test results. Defendant was then represented by a public defender; he had previously been represented by private counsel. After the motion was denied, defendant filed an application seeking to dismiss his attorney and to represent himself. The court engaged in a brief hearing with regard to this request, during the course of which the charges and potential sentences were explained to defendant, including the possibility of consecutive sentences because two victims had been involved in the robbery and the potential impact of NERA. The court extensively reviewed with defendant, who has his GED, the problems of self-representation in a criminal matter, including lack of knowledge of statutory defenses, new precedents, and the difficulty of fulfilling two roles - that of an attorney and an accused - during a trial. The court further explained that defendant would be held to meet the same standards and rules as an attorney, and would be hampered in that regard by virtue of his lack of legal knowledge. Defendant responded that he understood, but nonetheless wanted to represent himself and reopen the suppression hearing. The judge denied the latter request, pointing out that defendant's unhappiness with the hearing's outcome did not necessarily "mean that your counsel should be dismissed." The court then engaged in the following colloquy:
[THE COURT]: So do you understand the nature of the charges against you?
[Defendant]: Yes, I do.
THE COURT: Do you understand that you have defenses to these charges?
[Defendant]: Yes, I do.
THE COURT: And you understand the range of punishment?
[Defendant]: Yes, I do.
THE COURT: You understand that there could be problems and risks in proceeding pro se?
[Defendant]: Yes, I do.
THE COURT: And you understand that you will be bound by all the rules of [c]court just the same as anyone else?
[Defendant]: Yes, I do.
THE COURT: And what do you wish me to do?
[Defendant]: I wish to waive counsel and proceed pro se.
The court granted defendant's application and directed the Office of the Public Defender to provide standby counsel. It bears noting that defendant subsequently filed several motions, primarily involving discovery, the outcomes of which are not implicated in this appeal of the denial of PCR.
The case was then transferred to a second trial judge, who heard additional motions filed by defendant. During the course of oral argument on one of those motions, defendant challenged the accuracy of the testimony given by police officers before the Grand Jury, and stated the court should grant his application to dismiss the indictment because "I was there that night. I don't want to incriminate myself and say something crazy. But I was there that night. I know what went down. That officer didn't see nothing. He lied." As a result, the prosecutor announced he would request a transcript of defendant's "potentially incriminatory" statement. At trial, the State introduced as evidence against him defendant's on-the-record statement regarding his presence at the scene.
At an October 13, 2004 hearing, the second judge, who actually presided over the trial, questioned defendant again regarding his understanding of the difficulties arising from the decision to proceed pro se:
THE COURT: [I] just want to ask a couple of question[s] because we're going to move into a different area, meaning when we're before the jury, the jury is the fact[-]finder. You still do your legal arguments to me like you've been, okay, and which, you know, you've been doing very well as I put on the record. But I have to know that you understand talking to the jury because it's different. You're not going to make legal arguments to them.
You understand that[ the Rules of Evidence] govern . . . what comes before the jury. So you understand that?
THE COURT: And you understand you're going to be bound by my rulings on the Rules of Evidence?
THE COURT: [I] just want you to understand . . . testifying only happens if you're on the witness stand and you're subject to cross[-]examination by [the prosecutor]. You understand that?
THE COURT: Okay. As the lawyer, when you question the witnesses who come in, you'll be allowed to question them but you won't be allowed to testify when you're questioning them. Do you understand what I'm saying? You'll be allowed to question the witnesses [be]cause you're the attorney in this case. You're looking at me -- do you understand?
[Defendant]: Questioning and testify. THE COURT: I'm trying to draw to you that there's a distinction from your role as the lawyer questioning witnesses and your role, if you had decided to testify[,] as a witness. Evidence only comes from the witness stand. It can't come from your questions. That's the point I'm trying to make and I'm asking you, do you understand that there's a difference from you being a witness and from you being the lawyer?
THE COURT: Because that's where I have to apply the Rules of Evidence. I'm not going to let you interject evidence into your questions. Do you understand what I'm saying?
THE COURT: Do you have any questions about it?
[Defendant]: So basically in summation that my question, I have to be careful of the questions because there might be testimony in nature?
THE COURT: Yes. . . . I think the point I make, you question the witnesses on their testimony and you can challenge them. That's what cross[-]examination is and that's how you're allowed to question them.
But you couldn't question them in a way where you were trying to present the evidence through your question. . . . [S]o you're allowed to question them about matters that are in evidence but you're not allowed to question them about matters that are in your mind that aren't in evidence. . . .
Where I'm really headed is, when you get to your summation, and remember that goes to the jury. That doesn't go to the
[c]court. You're talking to the jury, in your opening, too. This is true for your opening but no evidence has been presented at that point. It's just what you're going to present. But when you're at your summation, you're only allowed to talk now to the jury about what's in evidence. Do you understand what I'm saying? You're shaking your head. Do you --
[Defendant]: What's in evidence, what's been presented during trial.
THE COURT: Right. So in other words when you're talking to the jury in summation you're only allowed to talk about what came through the witnesses. I'm sorry through the witness stand or from evidence that was presented. . . . And you're willing to abide by that?
THE COURT: And you still want to represent yourself?
THE COURT: Okay. And do you have any questions about that?
[Defendant]: Cross[-]examining will have to be a line of direct examining?
THE COURT: Yes. And that's true witness by witness and that's also true for the Prosecutor. Your cross[-]examination is limited to the issues that were raised on the direct examination.
The next day, the court also expressly permitted defendant to approach witnesses on the stand during their testimony, even the two victims, in order to ensure defendant "appear[ed] to be able to present his case just as the State's lawyer is allowed to present [his] case."
In opening statements, defendant said that he was being racially profiled because he was an African-American man in a white neighborhood. Although defendant touched upon the State bearing the sole burden of proof, he also stated that he felt "a different burden" was upon him, "to establish the truth in this case." He told the jury that he had been previously convicted of a felony and served a prison term.
When defendant explained to the jury that he was present at the scene in order to make "a drug sale," the jury was excused. The court and the prosecutor both told defendant that, should he elect not to testify, the jury would be instructed not to consider his prior conviction, his explanation for his presence in the neighborhood, or his reference during opening to his prior involvement "with the wrong crowd."
During the course of the four trial days, defendant cross-examined all of the State's witnesses and frequently made objections. He successfully elicited the damaging information that the bag he supposedly discarded, containing the weapon and bearing traces of blood, was not referenced in the initial police report, but was added to a supplemental report only after indictment.
After defendant's direct appeals were denied, on January 18, 2007, defendant filed a pro se petition for PCR, later supplemented by a brief and appendix from counsel. In the petition, defendant raised twenty-four separate points for consideration, ranging from the racial composition of the grand jury to evidentiary issues and ineffective assistance of appellate counsel. Defendant's primary issue, however, was his contention that both trial judges erred in permitting him to proceed pro se with only limited assistance from standby counsel.
When the decision was rendered on defendant's PCR petition, the majority of defendant's points were not reached because they included issues which, pursuant to Rules 3:22-4 and 3:22-5, could have been or were raised on direct appeal. The court did, however, address the merits of the self-representation claim, the effectiveness of standby counsel, and the effectiveness of appellate counsel. After considering these points and extensively reviewing the record regarding the decision to allow defendant to proceed pro se, the court concluded defendant "knowingly and voluntarily" waived his Sixth Amendment right to counsel and that, in any event, he could not satisfy the Strickland/Fritz test with regard to his claims of ineffective assistance of standby or appellate counsel. Like the trial court, we too will consider the merits of only those three points at length, although the question of defendant's self-representation should have been raised on direct appeal.
Defendant raises the following issues:
MR. BROWN WAS DENIED THE RIGHT TO COUNSEL AND THER[E]BY THE RIGHTS OF DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT ALLOWED PETITIONER TO PROCEED PRO SE WITHOUT CONDUCTING A THOROUGH INQUIRY AS TO WHETHER MR. BROWN WAS MAKING A KNOWING AND WILLFUL WAIVER OF HIS RIGHT TO COUNSEL. (U.S. Const. Amends. V, VI, XIV; N.J. Const. (1947) Art. I, Pars. 1, 9, 10)
THE POST[-]CONVICTION RELIEF COURT ERRED IN DENYING MR. BROWN'S PETITION FOR RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF STANDBY COUNSEL AND APPELLATE COUNSEL POINT III
THE PCR COURT IMPROPERLY DENIED MR. BROWN'S PETITION FOR POST CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER POINT IV
MR. BROWN'S CLAIMS THAT HE WAS DENIED THE RIGHT TO COUNSEL AT TRIAL, WHERE HE DID NOT KNOWINGLY WAIVE THIS RIGHT, AND THAT HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF STANDBY COUNSEL AND APPELLATE COUNSEL ARE NOT PROCEDURALLY BARRED UNDER RULE 3:22-4
The right of a criminal defendant to the assistance of counsel is established by both the Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution. Additionally, "[d]efendants possess not only the right to counsel, but the right to dispense with counsel and to proceed pro se." State v. Crisafi, 128 N.J. 499, 509 (1992) (citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)). A defendant may only exercise this right after the trial court's thorough and detailed questioning, designed to elicit whether his or her choice constitutes a knowing and intelligent waiver. Ibid. (citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023, 83 L. Ed. 1461, 1467 (1938); State v. Buonadonna, 122 N.J. 22, 35 (1991)).
Beyond the "technical problems" and procedural difficulties inherent in self-representation, id. at 511, defendants must be informed of the substantive "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.'" Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L. Ed. 268, 275 (1942)). Such information includes the "nature of the charges against them,the statutory defenses to those charges, and the possible range of punishment." Crisafi, supra, 128 N.J. at 511; see also State v. Reddish, 181 N.J. 553, 594 (2004) (including that proceeding pro se "waive[s] any and all later claims that his [or her] self-representation constituted ineffective assistance of counsel"); State v. Slattery, 239 N.J. Super. 534, 547 (1990) (including legal elements of crimes and possible lesser-included offenses); State v. Kordower, 229 N.J. Super. 566, 577-78 (1989) (including specific exposure to incarceration); State v. Lach, 213 N.J. Super. 466, 469-71 (1986) (including possible defenses and mitigating circumstances).
In determining whether a defendant's understanding is sufficient to constitute a "knowing" waiver of the right to counsel, more is required than a "mere yes or no response[.]" Reddish, supra, 181 N.J. at 595. The trial court must "explore fully the bona fides of a defendant's claim of 'knowingness'" and must make "appropriate credibility determinations, bottomed on specific facts, observations, and conclusions" flowing from "appropriate open-ended questions that will require defendant[s] to describe in [their] own words [their] understanding of the challenges [they] will face[.]" Id. at 594-95 (providing, by way of example, "what difficulties [the defendant] believes he will confront or create when he examines or cross-examines witnesses"). At the same time, deficiencies in the court's questioning may be mitigated when the defendant is a "'career criminal,' whose background, experience and familiarity with the criminal justice system might reasonably manifest a clear understanding of the significance of a waiver of counsel." Slattery, supra, 239 N.J. Super. at 548 (citing State v. Cole, 204 N.J. Super. 618, 625 (App. Div. 1985); United States v. Balough, 820 F.2d 1485, 1488-89 (9th Cir. 1987); United States v. McDowell, 814 F.2d 245, 248-52 (6th Cir.), cert. denied, 484 U.S. 980, 108 S. Ct. 478, 98 L. Ed. 2d 492 (1987); United States v. Hafen, 726 F.2d 21, 24-26 (1st Cir.), cert. denied, 466 U.S. 962, 104 S. Ct. 2179, 80 L. Ed. 2d 561 (1984)); and see Crisafi, supra, 128 N.J. at 513 (affirming waiver in the absence of sufficient interrogation where defendant was "a court-wise criminal who fully appreciated the risks of proceeding without counsel").
Like Crisafi, defendant's "background and experience support the conclusion that he knew the pitfalls of trying his own case." Crisafi, supra, 128 N.J. at 513 (citing Johnson, supra, 304 U.S. at 464, 58 S. Ct. at 1023, 82 L. Ed. at 1466). Crisafi "had extensive experience with the criminal justice system[,]" including convictions for rape, sexual abuse, grand larceny, grand theft, and petty larceny. Id. at 513-14. While there was some dispute regarding his level of education, the court found him "articulate and artful." Id. at 515.
In combination, these two factors were held sufficient to overcome the trial court's failure "to inform [the] defendant of the charges against him, the sentencing alternatives, and specific pitfalls of proceeding pro se." Ibid. Additionally, the court listed examples of Crisafi's proper use of legal terminology and citation. Id. at 516.
Here, defendant was adjudicated delinquent seventeen times on charges including "thefts, burglaries, criminal mischief, shoplifting, trespass, bullets, dum[-]dum bullets, receiving stolen property, drugs, assault, both simple and aggravating, [and] hindering apprehension." As an adult, he was convicted of receiving stolen property in New York State and two counts of robbery in this state, for which he was sentenced to ten years in prison, committing the offense in this matter shortly after his release.
Over the course of trial, defendant cited more Rules and cases than the prosecutor, demonstrating a familiarity with legal arguments and principles. In fact, his interaction with the justice system immediately prior to these charges was the trial, in this jurisdiction, of precisely the same crimes alleged in this case. Defendant formulated and presented a plausible defense to the jury: he was guilty of possessing marijuana, but it was racial profiling on the part of the police which led them to assume he was the robber as well. He certainly did not feel forced into proceeding without counsel. As the court noted, defendant created his own letterhead in which he referred to himself as "Top Pro Se Attorney in New Jersey."
Questioning by the first judge was adequate; by the second, even more comprehensive. The record establishes that in light of the "particular facts and circumstances surrounding th[e] case, including the background, experience, and conduct of the accused[,]" defendant's waiver of his right to counsel was knowing and voluntary. Not only did he insist on self-representation, he was extremely active in terms of filing motions, making objections, and presenting a defense theory to the jury. Defendant's principal handicap in the process was the DNA and footprint evidence, which in the jury's mind no doubt identified him as the perpetrator beyond a reasonable doubt.
PCR constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 458 (1992). A defendant making a prima facie showing of an entitlement to such relief, that is, "demonstrat[ing] a reasonable likelihood that his or her claim will ultimately succeed on the merits[,]" is generally entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997).
Where, as here, a PCR petition is premised on the ineffective assistance of counsel, Rule 3:22-2(a), New Jersey courts are guided by the two-part Strickland/Fritz framework:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington*fn1 , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
The second prong of this test is satisfied by a showing that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant asserts standby counsel was ineffective in failing to advise him to seek to suppress his pretrial admission to having been present at the scene of the robbery. "Standby counsel is appointed for two main purposes: to act as a 'safety net' to insure that the litigant receives a fair hearing and to allow the trial to proceed without the undue delays likely to arise when a layperson represents his own case." State v. Ortisi, 308 N.J. Super. 573, 591 (App. Div.) (quoting United States v. Bertoli, 994 F.2d 1002, 1018-19 (3d Cir. 1993)), certif. denied, 156 N.J. 383 (1998).
Standby counsel in this situation, where defendant made an argument to the court couched precisely in the terms he had been advised could prove damaging to his defense, cannot be charged with having provided ineffective representation because of his failure to seek to suppress the State's use of the statement. As our Supreme Court has previously said, "a pro se defendant 'must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.'" State v. Davenport, 177 N.J. 288, 300 (2003) (quoting McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949, 79 L. Ed. 2d 122, 131 (1984)). Defendant made the statement during oral argument prior to trial and had ample time to reflect as to whether he wished to challenge the State's use of his comment.
He took control of the "organization and content of his own defense," and should be bound by those decisions. In the federal courts, it has previously been determined that a defendant, having no constitutional right to standby counsel, cannot prevail on a claim that standby counsel was ineffective. See United States v. Oliver, 630 F.3d 397, 414 (5th Cir. 2011); Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006).
The appointment of standby counsel should not give a defendant a second bite at the apple on PCR - the opportunity to challenge his own conduct of the case and the professional advice extended to him by his standby attorney. Standby counsel in this case merely acted as a resource for defendant, who personally presented the jury with his entire defense. He considered himself a "top pro se attorney in New Jersey," and should be bound by the choices he made in that capacity. Having chosen to represent himself, he "cannot thereafter complain that the quality of his own defense amounted to a denial" of the effective assistance of counsel. Faretta, supra, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46.
Defendant also contends his appellate counsel was ineffective for failing to raise on direct appeal the issue of whether the court should have granted him the right to represent himself. This argument also lacks merit.
The second prong of the Strickland/Fritz test is that the outcome of the proceeding was likely affected by counsel's deficient performance. Since we do not think the trial judges erred in permitting defendant to represent himself, appellate counsel's failure to raise the issue on direct appeal was not prejudicial. Although defendant asserts in general terms that he was not questioned sufficiently about his decision, he has not pointed to any procedural or substantive shortcoming in the actual trial resulting from his self-representation. His contention that use of the pretrial statement admitted at trial was error pales in comparison to the DNA and footprint evidence, not to mention his discovery near the scene dressed in clothing similar to that described by the victims. Accordingly, appellate counsel did not render ineffective assistance by failing to raise the issue of defendant's pro se representation as error.
Clearly, defendant has not made a prima facie showing of ineffective assistance of counsel or of error at all. Accordingly, he is not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462.