September 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD CALLAWAY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID K. CALLAWAY, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FLOYD TALLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1978.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 5, 2011 -
Before Judges Cuff, Lihotz and St. John.
Defendants David Callaway, Ronald Callaway, and Floyd Tally were linked to Craig Callaway, an Atlantic City politician. When Craig Callaway's mayoral ambitions ended due to a guilty plea to federal extortion charges, many of his supporters left him, including Eugene Robinson, a member of the City Council. To discredit Robinson, Craig Callaway and defendants procured a prostitute and a motel room, then filmed Robinson and the prostitute engaging in sex. They threatened Robinson with disclosure of the tape and then subsequently disclosed it to the media.
Following a trial, a jury found defendants Ronald Callaway, David Callaway and Floyd Tally guilty of these third degree offenses: conspiracy, N.J.S.A. 2C:5-2 (Counts One and Five); criminal coercion, N.J.S.A. 2C:13-5 (Count Two); and invasion of privacy, N.J.S.A. 2C:14-9c (Count Seven). In addition, Ronald Callaway and Floyd Tally were found guilty of another third degree offense: invasion of privacy offense, N.J.S.A. 2C:14-9b.
David Callaway was sentenced to an aggregate term of four years imprisonment. The trial judge merged Count One with Count Two and imposed a four-year term of imprisonment. The trial judge also imposed concurrent terms of four years imprisonment on Counts Five and Seven.
Ronald Callaway was sentenced to an aggregate term of nine years imprisonment with a four-year parole disqualifier. The trial judge merged Count One with Count Two and Count Five with Count Six. Then the judge imposed a five-year term of imprisonment with a two-year parole disqualifier on Count Two, and a concurrent four-year term of imprisonment on Count Six. The trial judge also imposed a consecutive term of four years imprisonment with two years parole ineligibility on Count Seven.
Floyd Tally was sentenced to an aggregate term of twelve years imprisonment with a six-year parole disqualifier. The trial judge merged Count One with Count Two and Count Five with Count Six, and imposed an eight-year term of imprisonment with four years parole ineligibility on Count Two and a concurrent four-year term on Count Six. The trial judge also imposed a consecutive four-year prison term with two years parole ineligibility on Count Seven.
We have consolidated these appeals for purpose of issuing an opinion due to the common facts and the number of identical issues raised by all defendants. First, we will address the common issues raised by David and Ronald Callaway, then address the common issues raised by David and Ronald Callaway and Floyd Tally, and finally address the remaining issues raised by each defendant.
We affirm the convictions but remand for entry of an amended Judgment of Conviction for each defendant reflecting merger of the conspiracy convictions with the substantive offenses due to the improper "fracturing" of a single conspiracy by the State. We also remand for entry of an amended Judgment of Conviction for Ronald Callaway and Floyd Tally to reflect the vacation of the consecutive terms imposed on each for Count Seven. We also hold that the mid-trial decision to permit defendant Tally to proceed with hybrid representation should have been preceded with a more penetrating inquiry of Tally but conclude the error does not rise to the level of plain error.
Prior to 2006, Craig Callaway served as President of the Atlantic City Council. In 2005, Craig Callaway ran for the Democratic mayoral nomination; his rival for the nomination was Lorenzo Langford.
Craig Callaway's designs on the mayoral election were derailed, however, due to a federal criminal charge. He dropped out of the primary in 2005, and in August 2006, he pleaded guilty to attempted extortion under color of official right in the United States District Court for the District of New Jersey. In his place, Callaway's political organization ran Bob Levy for the Democratic nomination. Levy won the election and became Mayor of Atlantic City in 2005.
As part of his guilty plea, Craig Callaway was required to resign as President of the City Council. He nevertheless remained determined to stay active in Atlantic City politics. Despite his desire to continue to wield influence and control his political organization, Craig Callaway's support began to erode.
One supporter, Eugene Robinson, a member of the City Council, deserted. Robinson had been a major supporter of Craig Callaway and had intended to support Craig Callaway in his mayoral bid. When Robinson learned of Craig Callaway's guilty plea, he changed allegiances and supported Langford. Robinson announced his support for Langford at a public prayer service attended by Langford. Around this time, Robinson assumed the role of Vice President of the Atlantic City Council.
Robinson noted he began to be followed by City vehicles throughout the day. Twice, he saw defendant David Callaway, the Atlantic City Director of Public Works, following him in a City vehicle.
In Fall 2006, Craig Callaway approached Jayson Adams, a political supporter, at a Democratic Committee event. Adams was a member of the Board of Education, who had been elected to that position with the help of Craig Callaway and Callaway's family and associates. Craig Callaway asked Adams if he could find Callaway a room in a hotel or one of the casinos, where he could catch Robinson with a girl or prostitute. Adams recounted that Craig Callaway wanted to "teach Gene Robinson a lesson because [Robinson] crossed him." Adams testified Craig Callaway was angry at Robinson because Robinson had "started to vote against his policies on . . . City Council." Adams tried to fulfill Craig Callaway's request but was unsuccessful.
A week later, Adams received a phone call from David Callaway to meet with them. Adams met the Callaways (David and Craig). Craig Callaway indicated he wanted to get back at Robinson. According to Adams, Craig Callaway disclosed he wanted to take advantage of Robinson's proclivities for prostitutes, and tape him in the act. Craig Callaway intended to use the tape to force Robinson's resignation.
Craig Callaway again asked Adams if he could help. David Callaway pressured Adams and encouraged him to get a girl. Adams initially dithered because he was scared. He later admitted he had no intention of helping, and informed the Callaways he would not participate.
Craig Callaway was not deterred. He had another associate, defendant Floyd Tally, work on finding a prostitute. In October 2006, Howard Bailey, a friend of Tally's, introduced Tally to a girl named Kristyn Haino.
Haino, twenty-four years old, lived in the same apartment building as Bailey, was addicted to heroin and cocaine, and lived with an older man who supplied her with drugs. Haino also engaged in prostitution to pay for her drug habit.
When Bailey brought Tally to meet Haino in October 2006, Tally asked her if she would perform a sexual act on a man who had turned against Tally and his friends. Haino said she would and agreed on a price. Tally informed Haino he would need her in a few days between six and seven o'clock.
Two weeks before Tally's agreement with Haino, Craig Callaway met with Mosharaf Hossain, the owner of the Bayview Motel in Absecon. Craig Callaway inspected the motel, spoke to Hossain's brother two week's later, and then went to the motel to request rooms. Craig Callaway argued with Hossain's brother over whether he had to sign a registration card. Callaway booked two rooms for the nights of November 12, 13, and 14, 2006.
On November 13, 2006, Tally and Bailey arrived at Haino's apartment. Tally told her to get dressed provocatively, and gave her a key to the motel room. She entered a car with Ronald Callaway, and, accompanied by another car driven by Tally, drove to where they believed they would find Robinson. While in the car, Ronald Callaway told Haino to approach Robinson, get him to the motel, and perform oral sex on him. Haino was also instructed to make sure Robinson gave her some money.
When Robinson was spotted, Haino was told to leave the car. She approached Robinson, and convinced him to give her a ride to the motel. At the motel, Robinson accompanied Haino into her room, and she asked for money to get a soda. He gave her some dollar bills, and she went to the motel office to get a soda. Haino returned to the room and performed oral sex on Robinson.
Robinson left the room. Immediately, Ronald Callaway and Floyd Tally entered the room and brought Haino to the adjacent room, where other men were celebrating. She saw a small television and equipment. Haino watched the tape of her encounter with Robinson. Tally paid Haino and warned her to say nothing about the events of the evening.
Later in November, Craig and defendant David Callaway drove to the office of Atlantic City Councilman John Schultz. They asked Schultz if he could help them remove a face from a video. Schultz directed them to a former employee.
A few days later, David and Craig came back to Schultz and showed him the video. They gloated over how they "got" Robinson. Schultz instructed them to leave a copy for editing. Craig and David also showed the video to Hossain.
On November 24, 2006, Robinson was approached after church by a man he did not recognize, who told Robinson he had a video of Robinson with a prostitute and proceeded to play the video for him. The man informed Robinson he had seventy-five minutes to resign from City Council, or the recording would be disseminated.
The tape was provided to a radio show host, who broke the news of the tape. The radio show host had received a telephone call from Craig Callaway, who laughingly asked her "who's in the video[?]" The radio host testified she told him "it's Councilman Robinson[,] and he turned away from the phone and said to other people . . . it's Brother Gene."
On appeal, defendant Ronald Callaway raises the following arguments:
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE ADMISSION OF THE FEDERAL CONVICTION OF CRAIG CALLAWAY.
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY ON ACCOMPLICE LIABILITY. (NOT RAISED BELOW).
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE STATE'S FRACTIONALIZATION OF THE CONSPIRACY OFFENSES. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO REFER TO CRAIG CALLAWAY'S SUPPORTERS AS "THE CALLAWAY ORGANIZATION" AND STATE WITNESS JAYSON ADAMS TO CHARACTERIZE THEM AS A "MOB." (RAISED IN PART AND NOT RAISED IN PART BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
On appeal, defendant David Callaway raises the following arguments:
POINT ONE: DEFENDANT WAS DENIED A FAIR TRIAL
BY THE ADMISSION OF THE FEDERAL CONVICTION OF CRAIG CALLAWAY. POINT TWO: THE TRIAL COURT'S REFUSAL TO AID DEFENDANT IN THE PRODUCTION OF CRAIG CALLAWAY AS A WITNESS FOR THE DEFENSE DENIED DEFENDANT DUE PROCESS OF LAW.
POINT THREE: DEFENDANT WAS PREJUDICED BY THE STATE'S DECISION TO CARVE INTO FOUR SEPARATE CONSPIRACIES WHAT WAS ACTUALLY ONE CONSPIRACY WITH MULTIPLE OBJECTS.
POINT FOUR: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S JUDGMENT OF ACQUITTAL AND NEW TRIAL MOTIONS.
POINT FIVE: THE JURY INSTRUCTION ON CONSPIRACY WAS DEFICIENT.
POINT SIX: JAYSON ADAMS CHARACTERIZATION OF CRAIG CALLAWAY'S SUPPORTERS AS A "MOB" WAS UNDULY PREJUDICIAL. POINT SEVEN: DEFENDANT RECEIVED AN ILLEGAL SENTENCE.
On appeal, defendant Floyd Tally raises the following arguments through his counsel:
POINT I: THE TRIAL COURT ERRED IN GRANTING
THE DEFENDANT'S REQUEST TO PROCEED TO TRIAL WITH HYBRID REPRESENTATION. (NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN DENYING
DEFENSE COUNSEL'S REQUEST TO INSTRUCT THE JURY REGARDING THE DEFENSES OF EXECUTION OF PUBLIC DUTY PURSUANT TO N.J.S.A. 2C:3-3 AND MISTAKE OF FACT OR LAW PURSUANT TO N.J.S.A. 2C:2-4.
POINT III: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY. (NOT RAISED BELOW).
POINT IV: THE DEFENDANT WAS DENIED HIS RIGHT
TO A FAIR TRIAL ARISING OUT OF THE PROSECUTOR'S OPENING STATEMENT IN WHICH HE INFORMED THE JURY HOWARD BAILEY WOULD TESTIFY REGARDING THE DEFENDANT'S CRIMINAL CULPABILITY FOR WITNESS TAMPERING EMBODIED IN COUNT X, BUT SUBSEQUENTLY AGREED TO DISMISS THE COUNT WHEN HE DID NOT PRODUCE BAILEY AS A WITNESS. (NOT RAISED BELOW).
POINT V: THE TRIAL COURT ERRED IN RULING
THAT THE DEFENDANT'S MOST RECENT CONVICTION, OCCURRING 13 YEARS PRIOR TO TRIAL, WOULD BE ADMISSIBLE TO IMPEACH HIS CREDIBILITY IN THE EVENT HE TESTIFIED.
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant Tally raises the following arguments:
POINT I: APPELLANT'S SIXTH AMENDMENT RIGHT
UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION WERE VIOLATED WHERE THE TRIAL COURT PRECLUDED COUNSEL OF HIS CHOICE FROM APPEARING AT TRIAL.
POINT II: APPELLANT'S EQUAL PROTECTION
RIGHTS UNDER THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION WERE VIOLATED BY THE DISPARATE PROSECUTION OF APPELLANT AND CO-DEFENDANT SCHULTZ.
POINT III: APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL WHEN THE COURT FORCED HIM TO PROCEED TO TRIAL WITH HOSTILE "CO-COUNSEL" OVER DEFENDANT'S OBJECTIONS.
POINT IV: APPELLANT'S CONSTITUTIONAL RIGHTS
UNDER THE SIXTH AMENDMENT OF THE UNTIED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION WERE VIOLATED BY THE TRIAL COURTS PRECLUSION OF TWO CRUCIAL DEFENSE WITNESSES.
A. Admission of Craig Callaway's Federal Conviction.
During the pretrial hearing, the State moved to admit into evidence Craig Callaway's guilty plea in federal court on August 30, 2006, to federal charges of attempted extortion under color of official right. The prosecutor explained the State's theory that the "criminal events were perpetrated as a means of personal and political revenge" against Eugene Robinson for switching allegiances after he became aware of Craig Callaway's federal conviction.
Counsel for both David and Ronald Callaway objected to the admission of Craig's federal conviction. Counsel for David Callaway noted the application was remote in time and place, and the prejudicial effect of the evidence outweighed any probative value. Ronald Callaway's attorney also objected, noting that the conviction of Craig Callaway, who had been named as a co-defendant in the present action, would infer guilt by association upon the remaining defendants.
The trial judge ruled Craig Callaway's federal conviction was admissible as evidence of motive, pursuant to N.J.R.E. 404(b). During jury selection, the trial judge reiterated this position. In his opening, the prosecutor informed the jury about Craig Callaway's federal conviction and outlined the theory of the State's case. The State presented a written statement to the court regarding Craig Callaway's federal guilty plea, which was offered as a matter of judicial notice. Upon this presentation, the judge noted "the admissibility of the substance . . . has been ruled upon," and explained, "[t]his is . . . the form in which the State intends to prove it, which is being moved or offered as a matter of judicial notice." Prior to the direct examination of Eugene Robinson, the trial judge instructed the jury:
I'll advise you of something of which I have taken judicial notice. What that means is that I will provide you with information that you may consider as evidence in the case without the necessity of calling any witnesses. And the evidence you may consider is as follows[.]
Based upon the official records of the United States District Court for the District of New Jersey, I charge you that you may accept as fact that on August 30th, 2006, before the Honorable Joseph H. Rodriguez, United States District Court Judge in Camden, Craig Callaway entered a plea of guilty to criminal information Number 06-689 (JHR), which charged him with attempted extortion under color of official right in violation of Federal criminal law.
Craig Callaway was scheduled to be sentenced on that plea on December 12th, 2006 and was allowed to remain free pending sentencing.
Both David and Ronald Callaway argue on appeal that the admission of Craig Callaway's federal conviction deprived them of a fair trial because it was not properly admitted as a judicially noticed fact or as part of the res gestae of the case. Both defendants also contend the plea evidence did not comply with N.J.R.E. 404(b).
Although both David and Ronald construct their arguments with reference to N.J.R.E. 404(b), the other crimes rule, we consider the proper focus for analysis of the issue is N.J.R.E. 401 and 403. N.J.R.E. 404(b) guides the admission of other crimes committed by a defendant, not another person. State v. Figueroa, 358 N.J. Super. 317, 326 (App. Div. 2003). Traditionally, the State seeks to admit evidence of other crimes committed by the defendant to prove a fact in issue, such as motive and identity. The defendant seeks to prevent or limit the admission of other criminal activity by him due to the likelihood the jury will consider the prior criminal acts as evidence of a pre-disposition to commit other criminal acts. See State v. Cofield, 127 N.J. 328, 336 (1992) (explaining the limited purposes for other crimes evidence, as well as the risk a jury may convict defendant because he is a bad person). Convictions are sanitized to attempt to minimize the prejudice that may redound to defendant by admission of prior criminal acts. State v. Gillispie, 208 N.J. 59, 90 (2011).
The proper analysis of this issue is whether the information sought to be admitted is relevant, N.J.R.E. 401, and, will its admission cause undue prejudice to defendants, N.J.R.E. 403. Here, the circumstances that caused Craig Callaway's resignation from public office and his waning political influence is highly relevant to why supporters deserted him and why Craig and other persons associated with him wanted to punish deserters and perhaps persuade others not to think of switching their allegiance to another political figure. Undoubtedly, the admission of the evidence may have caused prejudice to defendants, but all evidence that supports the State's case is presumptively prejudicial to defendants. The issue is whether the admission of the guilty plea caused undue prejudice to defendants.
To be sure, the jury did not need to know that Craig Callaway pled guilty to attempted extortion. To provide the motive for defendants' actions, it would have been sufficient to advise the jury that Craig Callaway pled guilty to an offense that required him to surrender his elected position. On the other hand, we discern no undue prejudice to defendants in light of the sordid nature of the scheme to discredit Robinson. It is difficult to hold that the failure to sanitize the guilty plea, standing alone, unduly influenced the review by the jury of all of the evidence in this case.*fn1
B. Fracturing the Conspiracy.
David and Ronald Callaway argue the State impermissibly presented multiple conspiracy charges to a grand jury, which returned an indictment including four conspiracy counts: conspiracy to commit criminal coercion through the overt act of procuring two adjoining motel rooms (Count One), conspiracy to commit criminal coercion through the overt act of procuring a video technician to edit the videotape (Count Three), conspiracy to commit invasion of privacy through the overt act of securing two adjoining motel rooms (Count Five), and conspiracy to commit invasion of privacy by procuring a technician to edit the videotape (Count Eight). Defendants David and Ronald Callaway were named only in Counts One and Five; Counts Three and Eight pertain to John Schultz and Craig Callaway, but they were not present at trial.*fn2 Nevertheless, the trial judge read the entire indictment to the jury. David and Ronald Callaway contend there was only a single conspiracy with multiple objects, and the construction of the indictment, known as fracturing the conspiracy, caused undue prejudice to them because it created the effect that they participated in multiple offenses rather than a single offense. The State contends this argument is barred because defendants did not move to challenge the indictment as required by Rule 3:10-2(d).
Prior to the opening statements, trial counsel for Floyd Tally raised the issue of the multiple conspiracy charges in the indictment. The judge indicated these issues could most appropriately be dealt with at the end of the case. After the opening statements, counsel for Floyd Tally moved for a mistrial based on fracturing of the conspiracy into four counts. The State responded the conspiracy between Craig Callaway and John Schultz was a conspiracy within the larger conspiracy of the other defendants. The trial judge denied the motion, noting he believed the State separated the conspiracies because the State was not alleging Schultz was involved in the entire conspiracy, only the part that involved editing the tape. On appeal, defendants contrast the four conspiracy counts in the indictment to the prosecutor's theory of the case, articulated during the opening, which alleged defendants engaged in a single, unified plan to discredit Eugene Robinson.
In general, "the law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order, therefore permitting the imposition of criminal sanctions for the agreement alone . . . ." State v. Hardison, 99 N.J. 379, 383 (1985). However, N.J.S.A. 2C:5-2c provides: Conspiracy with multiple objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
The rule clearly prohibits fractionalization of conspiracy offenses if there are multiple objectives or parties. Resolution of the issue raised by David and Ronald Callaway turns on whether the multiple overt acts "are the object of the same . . . conspiratorial relationship." See N.J.S.A. 2C:5-2c.
In State v. Kamienski, 254 N.J. Super. 75, 80 (App. Div.), certif. denied, 130 N.J. 18 (1992), we reviewed the convictions of three defendants who were indicted for two counts of conspiracy to possess cocaine with the intent to distribute, among other charges. At trial, the jury "was asked to decide whether there were one or two conspiracies at one time or at different times." Ibid. Two of the defendants contended the separate conspiracies "should merge for sentencing purposes because they comprise a single conspiracy." Id. at 113. The trial court denied the motion to merge the conspiracies because it "was satisfied from the evidence and the verdict of the jury that the two conspiracies were separate in time, fact and scope." Ibid. The trial judge segregated the two conspiracies, noting in the first, the defendants conspired amongst themselves and the victims to bring cocaine into New Jersey. Ibid. The trial judge ruled the second conspiracy was separate because it involved only the named defendants, a victim had been killed, and the scope of the second agreement was simply to share the cocaine without being caught. Ibid.
We disagreed. Id. at 114. Applying the flexible merger analysis from State v. Davis, 68 N.J. 69 (1975)*fn3 , we ruled "the single purpose of the conspiracy was to obtain the cocaine for distribution." Kamienski, supra, 254 N.J. Super. at 114. The court explained all the actors, both the defendants and the victims, worked to move the cocaine from Florida to New Jersey so it could be distributed. Ibid. The court concluded "that the conspiracy to possess cocaine with intent to distribute under [one count] merges with the conviction under [the second count] . . . . There was only a single conspiracy respecting the drugs that cannot be broken into two separate conspiracies." Id. at 115. As a remedy, we vacated the sentence on one of the conspiracy counts, and merged that count with the second conspiracy count, and permitted reconsideration of the sentence on the merged count. Id. at 116.
The indictment in this case incorrectly fractured the conspiracy. All the acts performed by defendants furthered a general and unified plan to discredit Eugene Robinson. Securing the hotel room and finding a technician to edit the videotape were both steps in the ongoing plan to discredit Robinson. It was error to separate the conspiracies into separate charges. We also consider it plain error because the conspiracy was unified and there should not have been separate conspiracy charges for invasion of privacy and criminal coercion. Both crimes were based on the same overt act of securing the hotel rooms, and both were in furtherance of the plot to discredit Robinson. The failure to merge the conspiracy charges as we instructed in Kamienski leaves the error unaddressed.
The proper remedy is merger of the charges into a single count for sentencing purposes. Id. at 116. Here, David and Ronald Callaway had their conspiracy charges merged with their corresponding substantive charges. We remand for amendment of the Judgment of Conviction of each defendant to reflect conviction of a single count of conspiracy and merger of that count into one of the substantive counts.
C. Characterization of Craig Callaway's Political Group as a Mob.
David and Ronald Callaway both argue they were prejudiced by the use of the term "mob" to describe Craig Callaway's political group. The State responds that this simple reference caused no undue prejudice to defendants.
During a portion of the voir dire, counsel for Ronald Callaway moved to prohibit the State from referring to the Callaways as an "organization." Prior to opening statements, the trial judge discussed the motion. Ronald Callaway's counsel reiterated her position that the term was prejudicial and the prosecutor was firm in his intention to refer to the Callaways as a political organization. The prosecutor responded the term was not pejorative, and its use was necessary because "organization" is how many of the witnesses described the Callaway political group. Ronald's counsel argued the jury would associate the term with organized crime. The trial judge held he would permit a description of the political and professional relationship between Craig Callaway and his supporters as an organization, and denied defendant's motion.
The use of the word "mob" occurred during the testimony of the State's first witness, Jayson Adams, a political supporter of Craig Callaway. At first, Adams testified generally about the make-up of the Callaway organization. At various points, Adams referred to supporters of Craig Callaway as the "Callaway team." The prosecutor had Adams clarify that by team he meant personal and political supporters of Craig Callaway. Adams identified Ronald and David Callaway and Floyd Tally as members of the Callaway team.
Adams proceeded to describe the nature of the relationship between Craig Callaway and his supporters and Lorenzo Langford and his supporters as a "rival[ry.]" Elaborating on the nature of the rivalry, Adams said "[to p]ut it bluntly, as one mob go against another mob." David Callaway's attorney immediately objected. The trial judge overruled the objection, but instructed the jury, "I'll allow the response to stand. You should understand there's no allegation here of organized crime in any sense."
N.J.R.E. 403 provides: relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
The factors favoring exclusion must be shown to substantially outweigh the probative value of the contested evidence. State v. Morton, 155 N.J. 383, 453 (1998). The party challenging inclusion of evidence has a difficult burden under N.J.R.E. 403.
"The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). Thus, evidence claimed to be prejudicial can only be excluded if its probative value "is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the case. State v. Thompson, 59 N.J. 396, 421 (1971).
"N.J.R.E. 403 specifically allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Evidentiary decisions are reviewed under the abuse of discretion standard. Ibid. (citing State v. Ezaro, 126 N.J. 112, 131 (1991)). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." Morton, supra, 155 N.J. at 453. See also Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2011) ("The burden is clearly on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control.")
In determining whether a defendant's right to a fair trial has been denied, the key inquiry is whether the judge instructed the jury to disregard the improper comments. State v. Ramseur, 106 N.J. 123, 322-23 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Here, the comment cannot be considered prejudicial, much less unduly prejudicial. It merely characterized the political climate in Atlantic City at the time, and the heated nature of the rivalry between two rival political teams. Furthermore, the trial judge immediately provided an appropriate limiting instruction to the jury.
D. Denial of the Motion for a Judgment of Acquittal and Motion for a New Trial.
Having reviewed the record in its entirety, we consider this issue without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
E. Erroneous Accomplice Jury Instruction.
Ronald Callaway and Floyd Tally argue the trial judge failed to adequately explain some of the terms utilized in the accomplice liability instruction. The trial judge included a lengthy instruction as requested by the prosecutor.
Defendants urge the trial judge erred by omitting a section of the charge which defined the terms, "solicit," "aid," "agrees to aid," and "attempts to aid." The trial judge also omitted the definitions paragraph when he repeated the accomplice charge when the jury requested a clarification. Defendants argue the verdict was tainted because the instruction was not comprehensive.
We review this issue under the plain error standard because no defendant objected to this portion of the charge at trial. Rule 2:10-2 reads:
Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
Not any possibility of an unjust result will satisfy this requirement. The possibility of error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
"'Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial.'" State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)). So important is this principle, "a trial court's failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." Ibid. (citing State v. Federico, 103 N.J. 169, 176 (1986)). Thus, "when a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability . . . ." Ibid. (citing State v. Weeks, 107 N.J. 396, 410 (1987)).
Inaccurate or incomplete jury instructions in criminal cases are also poor candidates for the application of the harmless error rule. State v. Crisantos, 102 N.J. 265, 273 (1986).
If error occurred, it would likely overcome the plain error standard. However, we discern no error, much less plain error, in the accomplice liability charge. The trial judge's instructions gave the jury a clear "exposition of the issues." State v. Green, 86 N.J. 281, 288 (1981). The undefined terms were not confusing and not terms of art unfamiliar to a layperson. These terms are used in everyday conversation. Unlike Bielkiewicz, supra, 267 N.J. Super. at 531, where the instruction failed to explain that a defendant accused of being an accomplice to a knowing and purposeful murder could be found guilty of a lesser offense of being an accomplice to aggravated manslaughter, manslaughter, or assault, the instruction here did not omit anything materially relevant to the accomplice liability standard. The jury needed no more to permit it to apply the instruction to the facts of the case.
We turn now to the arguments presented by the individual defendants. We commence our discussion with David Callaway.
A. Trial Judge's Denial of Aid to Obtain Production of Craig Callaway at Trial.
By the time trial commenced in October 2009, Craig Callaway was in federal custody serving his sentence for attempted extortion. Prior to trial, the prosecutor stated he would not produce Craig Callaway as a State witness. He explained that consistent with the plea agreement entered in the federal prosecution, the State would not proceed on the charges against him in the indictment, other than the one to which he pled guilty, and he would not be required to testify against his relatives. David Callaway, however, expressed a desire to call Craig Callaway as a witness. Floyd Tally also stated he wanted to call Craig Callaway, although counsel advised the court this desire was not her advice. She expressed the belief that his testimony would be highly detrimental to all defendants. Ronald Callaway's attorney insisted that an appearance by Craig Callaway would require severance. The prosecutor explained that Craig Callaway could be produced at trial, but the trial judge would have to execute a writ.
The trial commenced on October 8, 2009, with opening statements, and the State rested its case on October 19, 2009. At that time, the trial judge returned to the issue of the production of Craig Callaway as a witness for one or more of the defendants. He noted there were two ways to obtain his appearance, one would permit his production in a few days, the other, as many as thirty days. The judge then discussed with counsel whether he should "act as a facilitator for securing" Craig Callaway as a witness "given [the] distinct understanding that not all . . . [d]efendants want [Craig] here."
David Callaway's attorney informed the trial judge that his client
wanted Craig Callaway produced as a witness over his objection. Ronald
Callaway's attorney opposed production, and Floyd Tally, representing
himself at this time, stated he wanted Craig produced.*fn4
The trial judge reviewed the history of the desire by some
defendants to have Craig Callaway produced as a witness at trial; he
One, . . . it was known at the time of Craig Callaway's guilty plea that he would not be called as a State's witness.
Two, that if he were to be called as a Defense witness, it would require some effort given his out of state custody in a Federal prison.
Three, that it was not apparent to competent counsel, which I find those present are, that he would be a beneficial Defense witness given his statements to the F.B.I. as evidence in discovery and his testimony at the time of his guilty plea. Ergo I find no fault with Defense Counsel in not taking the necessary steps to secure his presence as a witness.
Finding that the benefit of Craig Callaway's testimony for David Callaway and Floyd Tally was speculative at best, the request to produce him was not conveyed by counsel in a timely manner to compel his presence without prolonging the trial, and his production was opposed by one defendant, the trial judge held he did not choose "to lend the Court's countenance to having him called as a witness." David Callaway argues this ruling denied his right to due process of law because the trial judge decided not to assist his request to produce Craig Callaway.
"Both the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee to the accused the right 'to have compulsory process for obtaining witnesses in his favor.'" State v. Garcia, 195 N.J. 192, 201-02 (2008) (quoting U.S. Const. amend. VI, and N.J. Const. art. I, ¶ 10). This right is so central, "[c]riminal defendants possess not only the right to call witnesses, but also 'the right to the government's assistance in compelling the attendance of favorable witnesses at trial.'" Id. at 202 (quoting Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646, 652, 98 L. Ed. 2d 798, 810 (1988)). This right, however, is not absolute, and must "'accommodate other legitimate interests in the criminal trial process.'" Ibid. (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). This means: this constitutional right must be exercised in accordance within the reasonable case management prerogatives possessed by our trial courts, which are charged with the fair and efficient operation of our criminal justice system. [Id. at 203.]
Thus, a "fair and careful balance [must be struck] between honoring the constitutional right to compulsory process, which is integral to ensuring a fair trial, and the interest in the effective administration of a criminal trial." Ibid.
In Garcia, the defendant wanted a person incarcerated in a county jail to appear as a trial witness. Id. at 204. His attorney served a subpoena on the witness and obtained a transport order a week before the trial commenced and served it on the appropriate county jail personnel. Ibid. On the morning of the witness's scheduled appearance, he had not been produced from the county jail in which he was incarcerated. Id. at 198-99. In spite of defense counsel's efforts, the trial judge noted it was the defendant's responsibility to produce the witness, he had not done so, and the trial proceeded without the witness. Id. at 199.
The Supreme Court held the trial judge abused his discretion by proceeding without the summoned incarcerated witness and ordered a new trial. Id. at 205. The Court found defense counsel acted diligently and the county jail authorities were obliged to obey the transport order issued by the court. Id. at 204.
Here, the facts are not analogous to Garcia. Although the issue was first discussed with the trial judge on October 6, 2009, the record reveals no further discussion for production of Craig Callaway until October 19, 2009. All defendants knew he was serving his sentence in a federal correctional institution in West Virginia. All defendants knew Craig Callaway could not be produced overnight. David Callaway's attempt to produce Craig Callaway at the close of the State's case cannot be considered diligent. Ronald Callaway adamantly opposed production of Craig Callaway as a witness and informed the trial judge at the beginning of trial that the appearance of Craig Callaway, over his objection, required separate trials. Moreover, the record does not contain an offer of proof to permit an evaluation of the prejudice David Callaway now contends he suffered by the failure of the trial judge to assist him through the issuance of orders requiring Craig Callaway's production as a trial witness. We, therefore, hold that the trial judge did not mistakenly exercise his discretion.
B. Erroneous Conspiracy Instruction.
David Callaway also challenges the adequacy of the jury charge on conspiracy. He argues the trial judge erred by referring to the substantive offenses defendants were accused of conspiring to commit interchangeably throughout this portion of the charge. He did not object at trial; therefore, we evaluate this alleged error in accordance with the plain error standard.
At the outset of this portion of the instruction, the trial
judge instructed the jury that the law governing conspiracy applied to both conspiracy counts, i.e., conspiracy to commit criminal coercion and conspiracy to commit invasion of privacy.*fn5
The judge then introduced the conspiracy standard:
A person is guilty of conspiracy with another person or persons to commit a crime if, with the purpose of promoting or facilitating its commission, he agrees with such other person or persons that they or one or more of them will engage in conduct, which constitutes such crime or an attempt to commit such crime or; Two, agrees to aid such other person or persons in the planning or commission of such crime or of an attempt to commit such a crime.
The judge next instructed the jury that a conspiracy to commit a crime is a criminal offense. He explained:
A conspiracy to commit a crime is a crime in itself separate and distinct from the crime which is the object of the conspiracy. In other words, a Defendant may be found guilty of a crime of conspiracy regardless of whether he's guilty or not guilty of the crime itself. That is the object of the conspiracy.
By way of illustration, the judge explained it would be possible for the jury to find a defendant guilty of conspiracy to commit criminal coercion but not guilty of criminal coercion itself.
The judge then provided the instruction on the elements and burdens of proof of conspiracy:
In order for you to find a Defendant guilty of the crime of conspiracy, the State must prove, beyond a reasonable doubt, the following elements:
One, that the Defendant or a Defendant agreed with another person that they or one or more of them would engage in conduct constituting the crime or an attempt to commit the crime or that a Defendant agreed to aid another person or persons in the planning or commission of the crime or of an attempt to commit the crime.
Two, that the Defendant's purpose was to promote the facilitation of the commission of the crime in question. Whether it's the criminal coercion or invasion of privacy.
The judge next instructed the jury with regard to purposeful conduct. He explained:
Next element is that the Defendant or another person with whom he conspired did an overt act in pursuance of the conspiracy. In order to find the Defendant guilty of the crime of conspiracy, the State does not have to prove that he actually committed the crime. However, if you decide whether the State has proven the crime of conspiracy, you must understand what constitutes the crimes of criminal coercion or invasion of privacy . . . and those definitions would apply to your application of the crime of conspiracy charge as I am now giving it to you.
The judge explained that conspiracy could be proved through direct or circumstantial evidence. The judge clarified,
It's not essential that there be direct contact among all of the conspirators or that they enter the agreement at the same time. If the Defendant is aware that any person conspired with also conspired with others to commit the same crime, the Defendant is guilty of conspiring with the others. He need not even be aware of their identity.
The judge also explained the scope and relevancy of overt acts in relation to the crime of conspiracy:
In addition, one of the conspirators must have done at least one overt act in furtherance of conspiracy. That is any act directed during the or toward the objective of committing the offense in question. The State is not required to prove an overt act by every conspirator. Just one of them.
The instruction as provided is an accurate description of the law. The trial judge also had an obligation to mold the charge to the facts of the case. State v. Savage, 172 N.J. 374, 389 (2002). Moreover, in a conspiracy charge it is vital to relate the charge to the substantive charge to which it is linked. State v. Bridges, 133 N.J. 447, 467 (1993). The judge constructed such a charge. Moreover, no part of this instruction would lead the jury to believe that proof of one substantive offense would necessarily prove the other substantive offense.
Floyd Tally advances several arguments not identified as error by either David Callaway or Ronald Callaway. We confine our discussion to Tally's contention that the judge engaged in an insufficient inquiry before granting Tally's mid-trial request to represent himself and his contention that the jury instruction on the conspiracy charges was erroneous. We consider his arguments that he was denied a fair trial because the prosecutor mentioned he would produce a witness to support a witness tampering charge and failed to produce that witness, and that the trial judge erred in permitting a 1996 conviction to be used to impeach his credibility as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We noted that the State did not oppose Tally's legal advisor's motion to dismiss the witness tampering charge at the close of the State's case. The judge also specifically instructed the jury that this charge had been dismissed, and it was to disregard the portion of the prosecutor's opening statement that mentioned this charge and the proof he intended to produce to prove the charge.
A. Hybrid Representation.
Tally clashed with his assigned counsel throughout the pre-trial period. He believed his attorney was unprepared and ignored his concerns. On October 1, 2009, Tally voiced his concerns to the trial judge, who urged Tally to try to work things out with his attorney and to ask his attorney to explain things he did not understand and strategy. The judge also noted they were quickly approaching trial.
During voir dire on October 5, Tally's assigned counsel sought to be relieved as counsel. She stated that Tally perceived she was "hostile towards him and that he cannot communicate with me." She also stated she was prepared to try the case. Tally informed the judge he was not satisfied with his attorney because they had not met enough times to satisfy his expectations, and he believed he was being denied a fair trial due to her frustration with him.
The trial judge denied the request to be relieved as counsel. He cited the absence of any evidence that assigned counsel was unprepared. He also noted the request to be relieved as counsel was submitted too late, as was Tally's request to represent himself. The judge further stated:
I'm pausing for a moment to be quite frank with you about Mr. Tally's request to represent himself and perhaps too precipitously said it's too late in the game. It's going to require a special hearing for me to rule on the merits of that, Mr. Tally, and that would require a rather substantial questioning, if you will, of you and your knowledge of what you would be held to. Your knowledge of criminal law and procedure . . . .
Tally responded that he did not prefer to represent himself. He emphasized he was not satisfied with the representation received to date from assigned counsel, preferred to have an attorney represent him, and would hire new counsel. Yet, later that day, defendant asked the judge to conduct a hearing to determine if he could represent himself. The judge declined to do so because Tally had told him that he preferred to be represented by an attorney and reminded Tally that his dislike of counsel was not a basis for defendant to proceed to trial representing himself.
On October 13, the second day of testimony, Tally's attorney renewed her request to be relieved as counsel. She stated Tally refused to cooperate with her. The judge found again that Tally did not want to represent himself; therefore, he did not need to conduct a hearing to determine his ability to proceed as a self-represented defendant. Tally raised the possibility of hybrid representation whereby he would permit his attorney to sit with him at counsel table and provide legal advice to him, but he would cross-examine witnesses and present his summation.
Just before the testimony of Haino was about to commence, the trial judge returned to the issue of Tally's request to proceed with assigned counsel consigned to the status of legal advisor. The following colloquy occurred:
THE COURT: Okay. Then I wish to address the issue of Mr. Tally.
Mr. Tally, is it your desire to let [assigned counsel] advise you on procedure, on the propriety of motions, objections and things of that kind?
DEFENDANT FLOYD TALLY: Yes.
THE COURT: As long as you cross examine or cross examine the State's witnesses and if you call any witnesses yourself, that you do the direct examination?
DEFENDANT FLOYD TALLY: Yes.
THE COURT: You'll be happy with that?
DEFENDANT FLOYD TALLY: Yes.
THE COURT: I'll permit it.
The judge recognized he would have to conduct a searching inquiry, if defendant had asked to proceed pro se prior to trial. He stated he believed the service of assigned counsel as a legal advisor "except[ed] the Court from the obligation of having to make specific findings of the competence of . . . [or] a finding of whether or not he actually knows what he may be giving up in terms of his knowledge of law or whatnot." The trial judge proceeded to explain the procedure to the jury and the trial progressed with the testimony of the next witness.
Tally argues the judge should not have permitted him to proceed with hybrid representation. He contends his intention was not to proceed with hybrid representation but rather to exercise his right to self-representation. Furthermore, the judge erred by failing to conduct a searching examination of his alternative hybrid representation request.
The State does not dispute that a defendant has a right to self-representation. It insists, however, that the right is effectively waived if a defendant does not exercise that right before commencement of meaningful trial proceedings. Therefore, the trial judge was not obliged to conduct the searching inquiry to evaluate the request to proceed without counsel.
A defendant's right to self-representation is not absolute. It cannot be used to endanger the State's interests in ensuring a fair trial and the integrity of trial verdicts. State v. McNeil, 405 N.J. Super. 39, 51 (App. Div.), certif. denied, 199 N.J. 130 (2009). Thus, a trial judge has a duty to assure a defendant knowingly and intelligently waives his right to counsel. State v. Crisafi, 128 N.J. 499, 509 (1992).
In Crisafi, the Court identified the topics a trial judge should explore with a defendant. Justice Pollack stated:
The trial court should inform pro se defendants of the nature of the charges against them, the statutory defenses to those charges, and the possible range of punishment. . . . The colloquy between the court and the defendant will test the defendant's understanding of the implications of the waiver, and will provide appellate courts with an objective basis for review. . . .
In general, the court should also inform defendants of the technical problems they may encounter in acting as their own counsel and of the risks they take if their defense is unsuccessful . . . . Further, the court should inform the defendants that they must conduct their defense in accordance with the relevant rules of criminal procedure and evidence, that a lack of knowledge of law may impair their ability to defend themselves, and that their dual rule as attorney and accused might hamper the effectiveness of their defense. . . . Also, the court should explain to the defendants the difficulties in acting as their own counsel and should specifically advise the defendants that it would be unwise not to accept the assistance of counsel. [Id. at 511-12.]
In State v. Reddish, 181 N.J. 553 (2004), the Court expanded the topics to be covered. Justice Zazzali identified the additional topics as follows:
By way of illustration, those additional areas would include whether defendant will experience difficulty in separating his roles as defendant and counsel; whether defendant understands that he not only has the right not to testify, but also the right not to incriminate himself in any manner; whether he understands that he could make comments as counsel from which the jury might infer that he had knowledge of incriminating evidence (and the difficulty in avoiding such comments); and whether he fully understands that if he crosses the line separating counsel from witness, he may forfeit his right to remain silent and subject himself to cross-examination by the State. [Id. at 594.]
In addition, a self-represented defendant must be informed that he forfeits the right to raise ineffective assistance of counsel in a post-conviction relief proceeding. Ibid.
The goal of this colloquy is not to assess a defendant's legal knowledge, id. at 595, rather, to determine whether the defendant understands and appreciates the consequences of self-representation, id. at 594. The trial judge must evaluate the responses to each inquiry and should "'indulge [in] every reasonable presumption against the waiver[.]'" State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994) (quoting State v. Guerin, 208 N.J. Super. 527, 533 (App. Div. 1986)) (alteration in original). The judge must also understand the type of self-representation the defendant proposes. That is, whether the defendant wishes to represent himself without any assistance of counsel, or assume some parts of the trial but not all, or proceed with stand-by counsel or a legal advisor.*fn6 State
v. King, 210 N.J. 2, 19 (2012). We will rarely find a pre-trial waiver of counsel knowing and intelligent without this searching inquiry. Id. at 20; Crisafi, supra, 128 N.J. at 513.
When trial has commenced, a trial judge has the authority to deny a request to discharge counsel when the judge considers the request a ploy to disrupt and delay the trial. State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div.), certif. denied, 170 N.J. 210 (2001). In Pessolano, the defendant had expressed his dissatisfaction with counsel for several months before the commencement of trial but never sought to substitute new counsel or proceed without counsel. Ibid. The defendant made his request to discharge counsel and represent himself after jury selection. Ibid. The judge denied his request, and we held the judge did not violate the defendant's right to proceed pro se. Ibid. In holding that the trial judge did not abuse his discretion, we said:
"[L]ike any other request for substitution of an attorney, a defendant's decision to dismiss his lawyer and represent himself must be exercised in a timely fashion. The right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress." [Ibid. (quoting State v. Buhl, 269 N.J. Super. 344, 362 (App. Div.), certif. denied, 135 N.J. 468 (1994)).]
In Buhl, this court held that a request to discharge an attorney and to proceed without counsel was too late when made just before jury selection. 269 N.J. Super. at 364. Accordingly, we found that the trial judge did not mistakenly exercise his discretion by denying the defendant's request to proceed pro se, particularly when the defendant had vacillated among three alternatives: a desire to be represented by an attorney, a desire to proceed without representation, and a desire to have hybrid representation that permitted him to file pro se motions. Ibid.
This authority does not address, however, the nature of the inquiry that a trial judge must undertake when a defendant seeks to discharge counsel and represent himself or agrees to proceed with hybrid representation. Certainly, Pessolano and Buhl suggest that the searching inquiry required before trial commences may not be required as the trial judge's concern shifts from simply assuring that the waiver of the right to counsel and the exercise of the right to self-representation is knowing and voluntary to whether the exercise of these rights will disrupt the trial and possibly negatively affect the right to a fair trial of co-defendants. We have found no case that directly addresses this issue. We find it somewhat anomalous, however, that the pre-trial searching inquiry required by Crisafi and Reddish can be completely eliminated or drastically truncated when the right is exercised during trial. Furthermore, although the right to self-representation may be diminished when exercised during trial, we question whether the three questions posed to Tally can be considered adequate to obtain a knowing and voluntary waiver of his right to counsel and an informed exercise of his right to hybrid representation.
We cannot hold, however, that Tally satisfies the plain error standard. The first clear and unequivocal request to proceed without assigned counsel did not occur until after conclusion of the first witness's testimony. Admittedly, Tally complained about the efforts made by assigned counsel to plan a trial strategy and consult with him, but the pre-trial discussion with the trial judge focused on assignment of other counsel or retention of another attorney. Tally never unequivocally requested to discharge assigned counsel to proceed without any representation.
Moreover, when Tally raised the issue once again on October 13, the discussion did not concentrate on self-representation, and defendant readily agreed to permit hybrid representation with assigned counsel participating as legal advisor. The record reveals she discharged this role vigorously. For example, she moved to dismiss the indictment at the close of the State's case and obtained dismissal of Count Ten, which charged Tally with third degree tampering with a witness. Finally, our examination of the record reveals that Tally received a fair trial. The State submitted considerable evidence of his involvement in this sordid effort to discredit a former political ally.
Accordingly, we will not disturb the conviction based on the trial judge's decision to permit Tally to proceed with hybrid representation after the trial commenced. Although we consider the questions addressed to Tally generally inadequate to assure a knowing and voluntary waiver of his right to counsel and a knowing and voluntary exercise of his right to self-representation, Tally was not left entirely to his own devices and he cannot demonstrate that a more searching inquiry would have altered the result.
Finally, we address the arguments presented by each defendant that the sentence imposed is manifestly excessive. Before we discuss the arguments presented by each defendant, we set forth the principles guiding our review of a sentence challenged as manifestly excessive.
One of the primary goals of the Code of Criminal Justice (the Code), N.J.S.A. 2C:1-1 to 2C:104-9, is to improve the consistency of sentences. State v. Kromphold, 162 N.J. 345, 352 (2000). To advance that goal, the Code contains a framework for "structured discretion" in crafting a sentence. State v. Roth, 95 N.J. 334, 345 (1984). When a sentence is challenged on appeal as excessive, a reviewing court must first determine whether the correct sentencing guidelines have been followed. Id. at 365. The fundamental sentencing guideline of the Code is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367.
A reviewing court must then determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, it must determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.
When a trial court follows the sentencing guidelines, a reviewing court should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "does not sit to substitute its judgment for that of the trial court." Id. at 6; State v. O'Donnell, 117 N.J. 210, 215 (1989). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, the reviewing court must affirm the defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. In other words, unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. at 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).
In four opinions over the last three years, the Supreme Court has further clarified the scope of our review of a sentence. In State v. Cassady, 198 N.J. 165, 183 (2009), the Court reviewed a sentence consisting of consecutive maximum terms of imprisonment for two second degree robbery offenses. Noting that a twenty-year term "may, at first blush, appear harsh," the Court affirmed the sentence because the judge faithfully applied the Yarbough*fn7 factors and applied the aggravating and mitigating factors appropriately. Ibid. Under these circumstances, the Court held that the sentence could not be disturbed. Id. at 183-84. The Court stated:
In those instances, our task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed "shocks the judicial conscience." [Ibid.]
The Court found that the twenty-year term did not "shock the judicial conscience" and affirmed. Id. at 184.
In State v. Bieniek, 200 N.J. 601, 608 (2010), the Court extended the rule of appellate deference to trial court sentencing discretion to the explanation delivered at sentencing in support of the selected sentence. The defendant pled guilty to first degree aggravated manslaughter and second degree aggravated assault pursuant to a plea bargain in which the State recommended an eighteen-year term of imprisonment. Id. at 605. This court remanded for reconsideration of the sentence and to permit the defendant's counsel to argue for a reduced sentence. Id. at 606. In a supplemental statement of reasons for the remand, this court explained that it needed a full discussion of the mitigating factors argued by the defendant and apparently rejected by the sentencing judge. Id. at 607. Although the Court acknowledged the explanation provided by the sentencing judge "is important for meaningful appellate review," id. at 608, the Court emphasized the sentencing judge is not required to explicitly accept or reject each mitigating factor advanced by a defendant, id. at 609. Rather, if the sentencing judge provides reasons for imposing a sentence and if the reviewing court "can readily deduce" the judge's consideration of relevant mitigating factors, an appellate tribunal may not disturb the sentence. Ibid. The Court proceeded to review the judge's explanation at sentencing and discerned he considered and rejected mitigating factors two, four, seven, and nine, even though the judge did not specifically refer to those mitigating factors. Id. at 609-10. In conclusion, the Court emphasized an appellate court will defer to a sentence if the judge adheres to the sentencing principles of the Code and case law, and further remarked that appellate disturbance of such a sentence is unacceptable "second-guessing." Id. at 612.
In State v. Thomas, 195 N.J. 431, 437 (2008), the Court underscored the need for an explanation for imposing an extended term on a particular count, especially when the count selected by the judge is contrary to the request of the prosecutor. In the absence of that explanation, the remedy is a remand to the sentencing judge or our exercise of original jurisdiction. Ibid.
Finally, in State v. Miller, 205 N.J. 109, 127 (2011), the Court again addressed the deference an appellate panel must accord to a sentence and the appropriateness of a remand for further explanation of the imposed sentence. In Miller, the judge imposed consecutive terms on two robbery counts. Id. at 115. In spite of the admonition in Yarbough, supra, 100 N.J. at 643, that a judge must state the reasons for imposing a consecutive term, the Miller judge did not address the Yarbough factors. Id. at 129. The Court held the remedy for such an omission is a remand to the sentencing court. Id. at 130. The Court recognized it had previously instructed this court to conduct its review of a sentence to determine whether we could "'readily deduce'" the reasons for the sentence. Id. at 129 (quoting Bieniek, supra, 200 N.J. at 609). The Court emphasized, however, the absence of any explanation forecloses an appellate panel from performing that exercise. Id. at 129-30. The Court explained: We can safely "discern" the sentencing court's reasoning when the record is clear enough to avoid doubt as to the facts and principles the court considered and how it meant to apply them. To go further, however, may involve speculation about what the sentencing court meant. [Id. at 130.]
With the limits on our review of a sentence elucidated, we turn to the specific sentence before us.
A. David Callaway.
David Callaway was convicted of four charges: Counts One and Two (conspiracy to commit criminal coercion and criminal coercion), and Counts Five and Seven (conspiracy to commit invasion of privacy and invasion of privacy). The jury acquitted him of Count Six, a second invasion of privacy charge. David Callaway argues the trial court erred by failing to merge the conspiracy to commit invasion of privacy conviction with the invasion of privacy conviction, even though he merged the conspiracy to commit criminal coercion conviction with the substantive criminal coercion conviction. David Callaway argues the unmerged conspiracy alleges no objectives other than the substantive offense of invasion of privacy. This argument is in addition to his other argument that the conspiracy charges had been improperly fractured. We have ruled that defendants should have been charged with a single conspiracy and ordered the conspiracy charges merged into a single substantive count.
B. Ronald Callaway.
Ronald Callaway was convicted of five charges: Counts One and Two (conspiracy to commit criminal coercion and criminal coercion); Counts Five and Six (conspiracy to commit invasion of privacy and invasion of privacy); and Count Seven (invasion of privacy). The latter offense is related to the disclosure of the videotape. The judge merged both conspiracy counts with the substantive offenses. The trial judge then imposed a five-year term with a two-year parole disqualifier on Count Two (criminal coercion) and a concurrent four-year term on Count Six, reasoning the invasion of privacy offense alleged in Count Six was sufficiently related to the criminal coercion offense charged in Count Two. However, the judge found the disclosure of the video was a separate act and imposed a consecutive term of four years with two years of parole ineligibility on Count Seven. The aggregate term is nine years with a four-year period of parole ineligibility. Ronald Callaway argues the judge abused his discretion by imposing a consecutive term on Count Seven.
When a defendant receives multiple sentences of imprisonment for more than one offense, they shall run concurrently or consecutively "as the court determines at the time of sentence[.]" N.J.S.A. 2C:44-5(a). The Supreme Court has provided certain guidelines for determining whether concurrent or consecutive terms are appropriate. Yarbough, supra, 100 N.J. at 643-44. Under Yarbough, the sentencing court must recognize that our system of criminal justice permits no free crimes, and when imposing either a consecutive or concurrent sentence, the court must separately state its reasons. Id. at 643. The court must consider, whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous[.] [Id. at 644.]
In addition, the court must not double count aggravating factors. Ibid. Overall, the focus should be on the fairness of the sentence. State v. Miller, 108 N.J. 112, 122 (1987).
Under the first Yarbough factor, the two crimes did not have independent objectives, because filming the act and distributing the tape were both in furtherance of the goal to discredit Robinson. Factor (b) does not favor a consecutive term because the crimes were not violent. Factor (c) does not support a consecutive term because the act of distributing the tape was a critical element of the conspiracy. Unless and until it was disclosed, defendants could not hope to achieve the goal of the conspiracy to discredit Robinson. See Miller, supra, 108 N.J. at 121. Factor (d) does not necessarily support a consecutive sentence because the victims, Robinson and Haino, were harmed by both overt acts. Factor (e) is neutral because there are not so many convictions that multiple consecutive sentences would be inappropriate.
When analyzing the factors, the sentencing court should apply them qualitatively, and not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose consecutive sentences even though a majority of the factors support concurrent sentences. Id. at 427-28. The ultimate consideration, under this qualitative approach, is whether the relevant factor "'renders the collective group of offenses distinctively worse than the group of offenses would be were that circumstance not present.'" Id. at 428 (quoting People v. Leung, 7 Cal. Rptr. 2d 290, 303 (Ct. App. 1992)).
Ultimately, resolution of this issue hinges on the standard of review. The sentencing judge explained why he imposed a consecutive sentence for Count Seven: disclosure of the video is a separate and distinct act from the criminal coercion.
Once the objective of coercing Robinson to resign failed, the disclosure was unnecessary and was nothing less than vindictive and done for the purpose of humiliating or disgracing Robinson. It is, therefore, worthy of a separate sentence, consecutive sentence under the guidelines
The issue for this court is whether the consecutive term is clearly unreasonable. Roth, supra, 95 N.J. at 364-65. The trial judge found the disclosure of the tape a separate and distinctive act, unnecessary to the object of the conspiracy. Yet, the record reveals disclosure of the tape was clearly a part of the objective of the conspiracy. Bringing the tape to Robinson's attention and coercing him to resign, and making the tape public all serve to discredit the man's public stature, the very essence of the conspiracy. Therefore, we vacate the consecutive term on Count Seven and remand for entry of an amended Judgment of Conviction reflecting a concurrent term on this count.
C. Floyd Tally.
Floyd Tally argues the sentence was manifestly excessive. He is serving an aggregate term of twelve years imprisonment, half of which must be served before he is eligible for parole. The judge merged Count One with Count Two and Count Five with Count Six. The judge also imposed an extended term of imprisonment on Count Two of eight years with a four-year period of parole ineligibility, a concurrent four-year term of imprisonment on Count Six, and a consecutive four-year term of imprisonment subject to a two-year period of parole ineligibility on Count Seven. Tally concedes he is extended term eligible but argues the trial judge abused his discretion by imposing the maximum possible parole disqualifiers in conjunction with the base terms imposed on Count Two and Seven, and erred by imposing a consecutive rather than a concurrent term on Count Seven.
The judge found aggravating factors three (risk of re-offense), six (extent and nature of criminal record), eight (public servant victim), nine (specific and general deterrence), and twelve (victim sixty years of age or older) applicable. N.J.S.A. 2C:44-1a(3), (6), (8), (9), and (12). The record supports each finding.
Tally has a criminal history that dates to April 1991 when he pled guilty to installation of a short wave radio without a permit contrary to N.J.S.A. 2A:127-4, admittedly, a non-violent offense. Shortly thereafter, in August 1991, Tally pled guilty to aggravated assault (serious bodily injury) contrary to N.J.S.A. 2C:12-1b(1). In November 1991, Tally pled guilty to a second aggravated assault (serious bodily injury) charge. In May 1997, a jury found Tally guilty of federal charges of conspiracy to distribute heroin. He was sentenced to ninety-seven months in federal prison. In October 1997, he was convicted of a federal RICO*fn8 offense. His criminal record also reveals several municipal court convictions. This record well supports the trial judge's finding that Tally presents a substantial risk of re-offense.
The offenses committed by Tally targeted a public official. The very purpose of the conspiracy was to discredit and punish a former political ally and office-holder who had the temerity to switch his political allegiance. A judge should be concerned about deterring behavior designed to intimidate public officials. Finally, the target of defendants' conspiracy was an older person.
Consideration of the aggravating factors in fashioning a sentence is not an arithmetical exercise. In other words, it is not permissible to approach the analysis quantitatively. A judge is expected to conduct a qualitative analysis of the identified factors. State v. Boyer, 221 N.J. Super. 387, 404 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988).
Here, we are satisfied the judge performed the appropriate qualitative analysis of the aggravating factors. This analysis supports not only the base terms selected by the judge but also the parole ineligibility terms imposed. Unlike his co-defendants, Tally had an extensive prior criminal history that counseled a sentence that imposed significant prison time.
The consecutive term imposed on Count Seven poses a different concern. As we discussed in our analysis of the sentence imposed on Ronald Callaway, a consecutive term on Count Seven does not satisfy the Yarbough standard. Disclosure of the videotape to the media was an integral part of the scheme hatched by defendants to discredit Robinson and scuttle his political career. It cannot be considered independent of and separated from the other offenses to warrant a consecutive term.
In conclusion, we affirm the convictions but remand for entry of an amended Judgment of Conviction for each defendant reflecting merger of the conspiracy convictions with the substantive offenses due to the improper "fracturing" of a single conspiracy by the State. We also remand for entry of an amended Judgment of Conviction for Ronald Callaway and Floyd Tally to reflect the vacation of the consecutive terms imposed on each for Count Seven.