September 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES E. HOLMES, JR., A/K/A ISAAC L. CSEZMADIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-01-0013.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Reisner and Harris.
Defendant Charles E. Holmes, Jr., appeals from his conviction for third-degree eluding, N.J.S.A. 2C:29-2b; fourth- degree hindering his own prosecution, N.J.S.A. 2C:29-3b; third-degree drug possession, N.J.S.A. 2C:35-10a(1); and the disorderly persons offenses of obstructing the administration of law, N.J.S.A. 2C:29-1, and marijuana possession, N.J.S.A. 2C:35-10a(4). He was sentenced on May 14, 2010, to an aggregate term of five years in prison with an eighteen-month parole bar, plus applicable fines and fees.*fn1
On this appeal, defendant presents the following points of argument for our consideration:
POINT I: THE PROSECUTOR'S MISCONDUCT IN ELICITING TESTIMONY ABOUT DEFENDANT'S POST-ARREST SILENCE AND COMMENTING ON THAT SILENCE IN SUMMATION, DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below.)
POINT II: THE TRIAL COURT'S FAILURE TO EXCUSE THE ENTIRE JURY POOL FOLLOWING THE JURY'S EXPOSURE TO POTENTIAL INTERACTION WITH WITNESSES AND NON-JURORS IN THE JURY ROOM DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
POINT III: THE COURT DISMISSED DEFENDANT'S CLEARLY STATED REQUEST TO REPRESENT HIMSELF.
Having reviewed the record, we find no merit in any of these contentions, and we affirm the conviction.
The trial evidence can be summarized briefly as follows. Phillipsburg Police Officer Brad Kisselbach signaled to defendant, who was driving, to pull over after noticing that defendant was not wearing a seatbelt. However, defendant continued driving, even after the officer activated his car siren. Finally, defendant stopped his car, jumped out, and fled. Following an extended foot chase, Kisselbach caught up with defendant, who put up a struggle and had to be subdued with pepper spray. As Kisselbach and another officer were moving defendant toward a patrol car, defendant's pants fell down and he stepped out of them. Kisselbach retrieved defendant's pants from the ground and found cocaine and marijuana in the pockets.
At police headquarters, defendant refused to give his name or provide any other routine biographical information. Nor would he identify himself to personnel at the hospital where he was taken after he complained of back pain. When the police returned defendant to the police station and administered Miranda*fn2 warnings, he finally agreed to identify himself but gave a false name, Isaac L. Csezmadia, a false birth date, and a false social security number. The police eventually learned defendant's true identity by running his fingerprints through their computer system. On the basis of that evidence, defendant was charged with hindering his own prosecution, as well as the other charges of which he was eventually convicted.
For the first time on appeal, defendant contends that the prosecutor improperly elicited testimony about, and commented on, defendant's post-arrest silence, in violation of his constitutional and statutory rights. U.S. Const. amend. V; N.J.S.A. 2A:84A-19; N.J.R.E. 503; see State v. Stas, ___ N.J. ___ (2012); State v. Muhammad, 182 N.J. 551, 567 (2005). We disagree.
A prosecutor may not comment on a defendant's silence at or near the time of arrest, to impugn the defendant's credibility or to create an inference that the defendant is guilty of the substantive offenses charged. Stas, supra, slip op. at 27, 29; Muhammad, supra, 182 N.J. at 567. To do so would penalize a defendant for invoking a constitutional right. See Stas, supra, slip op. at 28-29. However, routine "booking procedures," such as asking a defendant for his name "are ministerial in nature and beyond the right to remain silent." State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div. 1991). In this case, we are persuaded that the statements and questions to which defendant now objects related solely to attempts by the police to learn defendant's name, to which defendant eventually responded by providing a false identity. Further, defense counsel's failure to object to the prosecutor's questions or statements "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). In fact, as discussed below, eliciting evidence of defendant's silence was part and parcel of the defense strategy.
The issue of defendant's silence was first raised in defense counsel's opening statement. In addressing the hindering charge, defense counsel noted that defendant said nothing to the police for several hours after his arrest, perhaps because he simply did not feel like talking after being pepper-sprayed and losing his pants. During the direct examination of Kisselbach, the prosecutor focused on defendant's refusal to identify himself, and not on his silence in general. On cross-examination, defense counsel again raised the issue of defendant's refusal to speak to Kisselbach, to which the officer responded that he was trying to learn defendant's identity. Defense counsel then asked additional questions designed to establish that defendant was injured and may have refused to identify himself because he simply did not feel like talking to the police. Defense counsel also asked questions designed to infer that the police, growing frustrated at defendant's silence, may have suggested to defendant that his name was "Isaac Csezmadia" because the car was registered in that name.
In short, the questioning by both sides was properly directed to defendant's initial refusal to identify himself and his subsequent providing of a false identity. Neither attorney improperly commented on defendant's invocation of his right to remain silent. In fact, defense counsel's references to defendant's silence, in questioning witnesses and in summation, were clearly part of the defense strategy. Counsel argued that after defendant's long silence, the police began suggesting to defendant that his name was "Isaac" and that defendant did not intentionally provide a false identification. Viewed in context, the prosecutor's summation comments concerning defendant's refusal to identify himself were aimed at responding to this defense contention. See State v. Nelson, 173 N.J. 417, 472-73 (2002) (noting that we "assess the prosecutor's statements in the context of the entire trial record"). Defendant's arguments on this point provide no basis to reverse his conviction.
Defendant next argues that the trial court should have excused the entire jury panel due to alleged contact with witnesses and non-jurors. He also contends that the court improperly denied him the right to discharge his attorney and proceed pro se. Because the issues arose from the same portion of the trial, we discuss them together.
The first issue initially arose from the following exchange of second-hand information. On March 8, 2010, during jury selection, the assistant prosecutor disclosed to the judge and defense counsel that over the preceding weekend, she met a former Prosecutor's Office employee. The former employee told the assistant prosecutor that a friend, who had been excused from the jury panel, had told her that it seemed odd "that the Court would allow the defendant and his mother to wait in the same area that the jury was waiting in." After the assistant prosecutor relayed this information to the judge, he questioned all of the then-sitting jurors to determine whether any such contact had occurred. However, at no time did the judge specifically mention possible contact with defendant or imply any fault on defendant's part.
Instead, he told the jury that the courthouse was under construction and therefore the court had placed the jurors in a room that was not designed to be used as a jury room. He explained that it had come to his attention that, as a result of the cramped quarters in the courthouse due to the construction, it was possible that the jurors had come in contact with "a witness" in the case. He then questioned each juror as to whether there had been any such contact. They each responded that there had been no contact with any witnesses. As a result of his inquiries, which included taking a representation from defendant that neither he nor his mother had any contact with the jurors, the judge concluded that "[it] doesn't appear that the defendant or anyone else, his mom or anyone else went into that jury room."
Nonetheless, defense counsel expressed to the judge his client's concern "that the process has been tainted simply by raising the issue." It was defendant's view that, merely by broaching the issue of someone having had possible contact with the jury, the judge might have unintentionally caused the jurors to believe that defendant had done something wrong. The judge responded by explaining that nothing he said to the jurors could reasonably have been understood as implying wrongdoing on defendant's part. He noted that in speaking to the jurors he had not mentioned defendant or defendant's mother. The judge also reminded counsel that he had previously made clear to the jurors that due to the narrow confines of the courthouse hallways, they might come in contact with attorneys, witnesses or the defendant in the case, and the jurors should not be offended if those individuals did not say hello or otherwise speak to them.
Defense counsel nonetheless asked that the judge "dismiss the entire jury panel that has been exposed to this question" and begin selection anew. The judge declined to dismiss the jurors.
The next issue arose shortly thereafter, when the judge learned that Lieutenant Mondzak, who was on the State's witness list, was also a juror and might have spoken with other jurors on the panel. The judge proposed to excuse Mondzak as a juror and question him to determine "if he talked to anybody else on the panel and if he tainted the panel." In response to the judge's question, neither counsel objected to his proceeding in that fashion.
When questioned on the record, Mondzak stated that he told the two court employees in charge of supervising the jury that he was a potential witness in the case. He also told the judge that he mentioned to two corrections officers, who were also jurors and whom he knew from the courthouse, that he "may be a witness here." However, Mondzak told the judge that he "didn't discuss the case at all." The judge excused Mondzak, and jury selection continued.
Following a short recess, defense counsel advised the judge that his client wanted to address the court. At that point, defendant stated, "I believe I would like to change my counsel." When asked to explain, defendant told the judge, "I just feel with the situation with the jury I do not have a fair trial and my attorney did everything he possibly could do. . . . And I just feel it's not going to be a fair trial." The judge explained to defendant, patiently and in detail, that nothing he said to the jury during voir dire had in any way implied any fault on defendant's part. He also reminded defendant that all of the jurors insisted that no one had entered the jury room or spoken with them. He further explained to defendant that the fact that the court ruled against the defense on this issue "is not a reason to dismiss [defense counsel]."
The judge then attempted to explain to defendant the chaos that would result if parties were permitted to dismiss their attorneys every time the judge ruled against them on an issue during a case. Defendant agreed that his counsel had advocated "very well" for him, but insisted that "I feel at this point like the trial is already over. I feel I don't even need a defense."
In an oral opinion placed on the record on March 8, 2010, the judge denied the application:
[T]he right of self-representation is not a license to disrupt the criminal calendar or a trial in progress. We started this case last Tuesday . . . we started picking a jury . . . . And . . . the [defense] attorney did an excellent job in trying to advocate his position. . . . [T]here's no right for the defendant, if I'm in the middle of a trial, . . . to discharge his attorney [because the court issued an unfavorable ruling]. . . . I see no reason for it whatsoever and it is disruptive in the middle of the case to just have defendant say well, I didn't like that call and I'm going to fire my attorney.
The judge then directed court staff to bring in the two corrections officers who were jurors for questioning, separately, to ensure that they had not been tainted by contact with Mondzak and had not had discussions with any other jurors.*fn3
On this appeal, defendant once again argues that merely by questioning the jurors about possible contact with "witnesses," the judge may have prejudiced the jurors against him. This contention is completely without merit, and does not warrant discussion in a written opinion, beyond the following comments.
A defendant is entitled to trial by an impartial jury, and when a judge learns that jurors may have been exposed to any extraneous influence, the judge "must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J. 551, 558 (2001). We review a trial judge's decisions on these issues for abuse of discretion. Id. at 559. On this record, we find no abuse of the trial judge's discretion. The judge appropriately questioned all of the jurors and, upon determining that no witnesses had entered the jury room or had contact with the jurors, declined defendant's application. Defendant's contention that because the judge questioned the jury about possible contacts with witnesses, they must have inferred that he did something improper, is speculative and illogical.
We reach a similar conclusion with respect to the court's decision to question Mondzak. The judge questioned Mondzak on the record, determined that he had mentioned to two other jurors that he was a witness but had not discussed the case with them or anyone else. The judge then summoned those two other jurors to the courtroom for questioning. While the interviews of those two jurors were not recorded, nothing in the record suggests that they revealed any information to contradict what Mondzak told the judge. Finally, because Mondzak did not testify at the trial, there is no possibility that any juror was unduly influenced to credit his testimony because of some prior contact with him in the jury room. We find no abuse of the judge's discretion in handling this situation and no basis to reverse defendant's conviction. See R.D., supra, 169 N.J. at 559.
In his last point, defendant contends that the court improperly denied him the right to self-representation. We reject this argument substantially for the reasons stated by the trial judge. Our federal and State Constitutions recognize a defendant's right to self-representation. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975); State v. Crisafi, 128 N.J. 499, 509 (1992). However, a defendant must make such a request in a timely manner and need not be permitted to disrupt an ongoing trial. State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div. 2001); State v. Buhl, 269 N.J. Super. 344, 363 (App. Div. 1994). "The right of self-representation cannot be insisted upon in a manner that will obstruct the orderly disposition of criminal cases. A defendant desiring to exercise the right must do so with reasonable diligence." Buhl, supra, 269 N.J. Super. at 363. We agree with the trial judge that defendant's request was untimely and would have disrupted jury selection, which had already been ongoing for several days. Defendant was not entitled to disrupt the proceedings merely because he was dissatisfied with the judge's ruling on his application to dismiss the jury.