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State of New Jersey v. Russell Hemmings

September 30, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUSSELL HEMMINGS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-12-2224.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2011

Before Judges Espinosa and Roe.

Defendant was charged in a fourteen-count indictment with various drug and weapons possession counts, resisting arrest and aggravated assault on a police officer. Prior to his trial in 2002, defendant announced to the court that he had elected to represent himself. However, five months later, on the trial date, defendant told the court that he now realized he could not handle his case alone and intended to retain a new lawyer within two weeks. The trial was adjourned and, ultimately, defendant asked the court to compel a member of the bar to serve as standby counsel because the Office of the Public Defender (OPD) had declined to do so. His request was denied and the trial proceeded. Defendant was convicted by a jury of two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); third-degree possession of controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); third-degree resisting arrest, N.J.S.A. 2C:29-2; two counts of fourth-degree possession of a weapon (hollow-nose bullets), N.J.S.A. 2C:39-3(f); two counts of third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b); two counts of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a); and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

In an unpublished opinion, State v. Hemmings, Docket No. A-3631-02 (App. Div. June 20, 2006), we concluded that the trial court failed to conduct the "penetrating and comprehensive inquiry of defendant before allowing him to represent himself" at the suppression hearing and trial, in not making a greater effort to accommodate defendant's request for standby counsel, and in declining to admit the results of a polygraph test at the suppression hearing. We reversed his convictions and the denial of his suppression motion and remanded for a new hearing and trial.

Because the facts underlying defendant's convictions are set forth in detail in our prior unpublished opinion, they need not be repeated here except as relevant to the issues raised by defendant in this appeal.

Upon remand, defendant sent the court an affidavit in which he again stated that he wanted to represent himself. Standby counsel from the OPD was appointed and appeared at a hearing scheduled for August 23, 2006. The trial court conducted a Crisafi*fn1 hearing. The trial court inquired how far defendant had gone in school. Defendant responded that he completed about a year and a half of college. Asked about the prior trial, defendant stated he was not competent to proceed in that trial without standby counsel to aid and advise him. In response to questioning, defendant stated he understood the charges against him and the elements of all the charges and the various defenses available to him like alibi, diminished capacity, mistake, and duress, all of which did not apply to his case. The judge informed defendant he was facing the same previously imposed sentence and asked defendant if he understood the penalties he was facing. He responded, "Yes, sir. . . I'm serving 14 years. I'm well aware of that." The judge asked defendant whether he was ever diagnosed with a learning disability or treated for an emotional illness or psychiatric problems. Defendant answered that he had not. The judge informed defendant he would be bound by the Rules of Evidence at trial and the Rules of Criminal Procedure, with which he lacked familiarity. Defendant admitted he understood all of this. Furthermore, the trial court clarified for defendant that his standby counsel could only serve to answer any questions defendant had, but standby counsel could not ask or raise questions for defendant. The court reminded defendant that he had a right to remain silent and that by acting as his own attorney "a jury or fact finder may infer from the questions that [he] [has] knowledge of incriminating evidence not derived from police reports or . . . [t]hey may think that [he] [was] a participant." Defendant stated he understood this and understood that such an inference could prejudice him. The court also reminded defendant that his lack of knowledge could impair his ability to represent himself and that a trained lawyer would be much better suited to defend him.

Even after urging from the trial court that he should not defend himself without a lawyer, defendant stated it was his voluntary desire to represent himself.

The court conducted an evidentiary hearing over the course of nine days on defendant's motion to suppress evidence seized from his apartment at the time of his arrest. Defendant represented himself and had standby counsel from the OPD present for all proceedings.

Officers Daryl Bagnuolo, Kevin Pell and John Inglese of the Bergen County Sheriff's Office testified about the events of the evening of September 11, 1998. Bagnuolo and Pell were directed to defendant's residence in Rutherford to assist Inglese in arresting defendant on an active warrant. The three officers approached defendant's door on the ground floor. After Inglese knocked or rang the door bell, defendant came to the door but did not open it all the way. Inglese informed defendant there was a warrant from Leonia. Defendant denied his identity, denied ever being in Leonia and said, "You have the wrong guy. I'm not the guy." The officers tried "to explain to him that if it wasn't him [they] would bring him back to his apartment but for now [they] had to take him into custody and bring him down to headquarters." Defendant continued to protest.

Eventually defendant agreed to go with the officers but stated he first needed to go back up to his apartment to get his shoes. Inglese informed defendant that the officers would need to accompany him upstairs to get his shoes. Defendant protested that his girlfriend was upstairs naked. Defendant persisted in his objection to the officers coming into the apartment and started "to get loud, boisterous . . . [and] very agitated." The officers told defendant to tell his girlfriend to either put clothes on or go into the bathroom because they were going up with him. Bagnuolo testified that defendant then attempted to close the door, but Inglese stopped him from doing so by placing his foot and hand on the door.

While the officers were questioning defendant at the apartment door, defendant's neighbor, Norman Broulliard, opened his interior door. Bagnuolo opened the screen door and "advised him that he could go back inside, that everything [was] ok." According to Bagnuolo, Broulliard "was obviously intoxicated[,]" because he "could smell the odor of alcohol[,]" and told Bagnuolo that he did not think defendant was home even though Inglese was having a conversation with defendant right there. Broulliard went back inside and shut the door. When he testified at the hearing, Broulliard admitted he had no knowledge of what happened between defendant and the officers prior or subsequent to what he observed.

The officers told defendant they were going to arrest him. Defendant became further agitated and pushed Inglese "with both arms forward." The officers tried to grab defendant and defendant began flailing his arms and swatting the officers away, resulting in Bagnuolo being hit with an "open hand in the left side of [his] face and chest." Defendant ran up the stairs into his apartment and the officers pursued him. Officer Bagnuolo testified that defendant was able to cross his living room and was subdued by the officers at the threshold between the living room and bedroom. Inglese tackled defendant to the ground face forward while Pell grabbed his arms and Bagnuolo handcuffed him. Defendant "continued to resist" and "was very uncooperative."

After defendant was handcuffed, Officer Inglese told the other officers that there were two guns on the bed in the bedroom. Bagnuolo confirmed this observation when he looked up at the bed and Inglese then moved the guns up on the bed to be further away from defendant. Bagnuolo also noticed "clear, ziploc bags on the bed . . . and . . . a spoon with white residue . . . on the dresser in the room."

The officers then escorted defendant out of the apartment. Defendant was complaining, "I can't feel my fuckin' hands, can you loosen the handcuffs?" Bagnuolo stopped at the bottom of the stairs to readjust the handcuffs. As defendant was being escorted to the car with Bagnuolo holding one arm and Inglese holding the other, defendant remained uncooperative and irate, and was making lunging motions. Defendant ended up falling to the ground, chest first. The officers tried to calm him down before picking him up by each arm and bringing him to the car. Defendant was patted down for weapons and then placed in the police car. After detectives arrived at the scene, Inglese accompanied them into the apartment, where they seized the ...


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