On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-04-0355.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
The opinion of the court was delivered by OSTRER, J.S.C. (temporarily assigned).
Defendant Raymond D. Kates appeals from his conviction of second-degree eluding, N.J.S.A. 2C:29-2b (Count 1), and resisting arrest by flight, N.J.S.A. 2C:29-2a(2) (Count 4). Defendant claims the court denied him his constitutional right to counsel of choice by improperly denying him a continuance to hire a private attorney. We agree and reverse.
In addition to the eluding and resisting arrest by flight charges, an April 16, 2008 indictment charged defendant with third-degree aggravated assault consisting of simple assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (Count 2); third-degree resisting arrest by use of physical force or violence, N.J.S.A. 2C:29-2a(3)(a) (Count 3); fourth-degree hindering prosecution by force, N.J.S.A. 2C:29-3b(2) (Count 5); and fourth-degree inflicting harm to a law enforcement animal, N.J.S.A. 2C:29-3.1 (Count 6). Defendant also was charged with motor vehicle violations under various complaint-summonses.
Defendant, then fifty-one years old, was driving his green Dodge Ram pick-up truck at around 4 a.m. on May 2, 2007 in a high crime Bridgeton neighborhood known for gang activity. Riding in the passenger seat was a young man, Alfonso McClendon. The vehicle aroused a passing officer's suspicion because the police had received information that an African-American male in a maroon or dark blue small or mid-size truck, perhaps a Chevy S-10 pickup, would be delivering guns in the area. Bridgeton Police Officer Christopher Blackburn began following defendant's truck without activating his emergency lights or siren. Blackburn testified that defendant signaled to turn several times, but did not. After Blackburn activated his emergency lights, defendant rolled through a stop and increased his speed, and Blackburn turned on his siren.
Defendant led police on a chase of six or seven miles, outside the city and then back again, rolling or speeding through additional stops, driving erratically, sometimes coming to a complete halt, and other times reaching speeds of 80 or 90 m.p.h. At one point during the pursuit, when defendant slowed at an intersection, McClendon, fearing for his life, jumped from the truck. Blackburn said defendant almost collided with a passing car.
When defendant's truck ultimately came to rest, defendant ran across a field and into woods, where Blackburn subdued him with the assistance of a police dog and another officer. Both defendant and Blackburn required medical treatment. No guns were found in the truck or in the personal possession of defendant or McClendon.
Defendant explained he was on his way to his brother's house so he could counsel McClendon. He believed the persons in the vehicle behind him intended to harm him, and his fear increased when the vehicle continued to follow him, even after he pulled to the side of the road to let it pass. He claimed he was so fearful, he "blacked out" while driving and did not notice the emergency lights or sirens. On cross-examination, the State introduced, for impeachment purposes, his 2006 conviction for possession of a controlled dangerous substance.*fn1
The jury found defendant guilty of Counts 1 and 4, but not guilty of Count 2, as well as not guilty of a lesser-included charge of disorderly persons simple assault (predicated on defendant's alleged lack of knowledge that his alleged victim was a police officer) and not guilty of Count 3. The State had dismissed Counts 5 and 6 before trial. The court found defendant guilty of three instances of failure to stop or yield, N.J.S.A. 39:4-144.
The court granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). Defendant had been convicted of four indictable offenses: second degree robbery in 1973; third degree possession of CDS in 1983; second degree sexual assault and endangering the welfare of a minor in 1992; and, as we mentioned, third degree possession of CDS in 2006. He was also convicted of multiple disorderly persons offenses, including two while free on bail awaiting trial in this case.
We turn now to the circumstances surrounding defendant's request to retain private counsel, the court's denial, and the role of appointed counsel during trial.
Defendant had been free on $50,000 bond since November 19, 2007. The case had been scheduled for trial on July 19, 2010, but the judge could not reach it because he was still in the midst of another ongoing trial. Instead, on that day, the judge conducted a short scheduling conference on the case. Appearing on defendant's behalf, as they had on earlier occasions, were Assistant Deputy Public Defenders Jeffrey G. Klavens and Dionne Stanfield. Also present were Assistant Prosecutor Michael Ostrowski and defendant. The judge stated he intended to begin jury selection in defendant's case on July 27.
Stanfield requested an adjournment until August 3, because she was scheduled to be out of the office the week of July 19. The court denied Stanfield's request, noting that counsel should have been prepared to proceed on July 19. The judge stated, "I don't have the flexibility in my schedule to give you that extra time otherwise I would[.]" However, Ostrowski disclosed the State also had a scheduling problem: the State's witnesses were available the week of July 19, but not necessarily the following week.
In response to the court's inquiry, Ostrowski explained the State's case would not likely consume a full day, and the State would call local police officers and one lay witness. Stanfield stated the defense most likely would call defendant as its only witness. The court then tentatively scheduled jury selection for July 27, and testimony August 10, subject to Ostrowski's confirmation that the State's witnesses would be available.
When the matter came before the court for trial on Tuesday, July 27, 2010, Klavens, an Army Reservist, reported on the record he had received orders that he would likely be deployed overseas during the trial. He initially raised the matter to address how the judge would explain his sudden absence. However, defendant, who first learned in court that Klavens expected to be deployed, had other concerns.*fn2
Klavens had been involved in his case longer than Stanfield. It appears Klavens was to be lead counsel, and Stanfield would serve as second-chair, although that is not clear from the record. Klavens requested an adjournment on defendant's behalf so he could retain private counsel, rather than have Klavens withdraw mid-trial. Klavens stated defendant could afford private counsel as he had been employed.*fn3
The court denied the request after it obtained Klavens's assurance that Stanfield was prepared to try the case. However, the court did not inquire of Stanfield herself, nor did the court make any findings regarding the two attorneys' relative experience. The court also did not inquire whether the State objected, nor did it elicit any evidence from defendant himself regarding his financial capacity to retain counsel, the length of the continuance he sought, and his reasons for seeking private counsel. Furthermore, the court did not expressly address the impact of an adjournment on the court's schedule.
The colloquy in relevant part follows:
THE COURT: Mr. Klavens, we did conference this matter briefly yesterday, I believe, and you indicated that although you're standing in as co-counsel, that its likely that you're not going to make it through the full extent of this trial. You may be deployed prior to the conclusion of this trial?
MR. KLAVENS: yes, that's correct Judge.
THE COURT: Okay. That being said, however you - if you want to stand in as co-counsel that's fine. I just didn't know whether or not there's going to be any requests for me to advise the jury as to why you're automatically absent or how counsel wants to address that or you're just no longer here and we don't touch on it. I just want to make sure we're all clear as to how we're going to handle that situation? (Attorney discussion)
MR. KLAVENS: Your Honor, Mr. Kates has an objection and that is he's not comfortable, I guess, changing attorneys midstream or having the jury see me for part of the time and then seeing me leave for the rest of the time. He feels it's not fair to him. He's - has concerns that ...