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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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?
THE COURT: Do you understand that you have defenses to these charges?
THE COURT: And you understand the range of punishment?
THE COURT: You understand that there could be problems and risks in proceeding pro se?
THE COURT: And you understand that you will be bound by all the rules of [c]court just the same as anyone else?
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 ...