Submitted February 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-00640.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves, Espinosa and Guadagno.
The "meaningful opportunity to present a complete defense" guaranteed by the Federal and New Jersey Constitutions is denied when the prosecution substantially interferes with a defendant's ability to secure witness testimony. In this case, the government conduct alleged did not result in the denial of witness testimony but, rather, in the denial of access to the witness for interview by the defense. Such allegations, if true, would be proof of substantial interference with defendant's constitutionally guaranteed right of access to witnesses. We therefore hold that the trial judge erred in failing to conduct an evidentiary hearing. In addition, after concluding that defendant had satisfactorily represented himself at a Wade hearing, the trial judge granted his motion to proceed pro se without adequately advising him of the consequences of his decision. Because we conclude that a reversal of defendant's convictions is required, we recite those facts necessary to give context to the issues.
Defendant was convicted of offenses arising from the robbery of a convenience store. At the time of the robbery on December 12, 2007, Prafulcha Patel was the only employee working at the store. A man entered the store, purchased a pack of Marlboro Red cigarettes with a $10 bill, and then demanded money from the cash register. After Patel refused, the man demanded money from the lottery register and showed a gun that was hidden in his hooded sweatshirt. The man took $1330 and left the store. Patel then called the police.
On the following day, Patel identified a photograph of defendant from a photographic array shown to him at the Sayreville Police Station. Patel also identified defendant at trial.
On December 14, 2007, defendant's ex-fiancée, Jennifer McHugh, gave a statement to the police regarding a telephone call she received from defendant on the night of the robbery. McHugh said defendant told her he had done a "caper" at the "Indian store." Later that day, defendant was arrested.
Defendant was indicted and charged with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon (a handgun) for unlawful purposes, N.J.S.A. 2C:39-4(a) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); and third-degree theft, N.J.S.A. 2C:20-3 (count five). In a separate indictment, defendant was charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
Defendant filed several pretrial motions, three of which are relevant to the appeal. The first two motions concern defendant's request to represent himself.
In September 2008, defendant sought to have new counsel assigned to represent him because he was dissatisfied with his attorney's motion practice. During the course of the argument, the judge stated,
Obviously if you want to represent yourself and raise these things you can. I would certainly ask you to really think seriously about that, before doing it. . . . [I]t's a complex matter and you may look at things differently than most lawyers would, and then [sic] a judge would.
The judge asked defendant about his education and whether defendant would be able to understand the proceedings if he proceeded pro se. Defendant responded that he graduated from high school and attended two years of college. Defendant said,
[I]t's not something that I want to do. But like . . . I said I'm fighting for my life right here. There's a chance I'm never coming home from prison again. And with the animosity I feel towards this man, I can't be left in the room with [him].
The judge denied defendant's motion for new counsel, but advised him that if he wished to proceed pro se, he would need to file another motion and "go through a whole series of questions[.]" The judge also advised defendant that, even if he did proceed pro se, defense counsel would be ordered to be present at all proceedings to provide standby assistance. The court then reviewed the charges and concluded that defendant would face "20, 50, 60 years plus" if he was convicted at trial.
In January 2009, the court heard defendant's motion to proceed pro se. Defendant stated he was "ready to proceed pro se." The court questioned defendant about his "plan" and what he perceived he would have to do to get ready for trial:
COURT: I guess my question to you, Mr. Blazas, [is] how are you going to prosecute this case without the help of outside counsel?
DEFENDANT: Well, there's still co-counsel for advice, correct?
COURT: Well, you can ask that he act as standby to help you with legal issues understanding he's not your law clerk.
DEFENDANT: No, I understand.
COURT: But when the time came to examine witnesses, if you wanted to examine them yourself, I suppose, you could do that because you're proceeding pro se. Do you think you're capable of proceeding pro se?
DEFENDANT: I do.
THE COURT: Tell me why.
Defendant explained that he knew the case better than anyone and had studied the process. The court asked defense counsel for his opinion about defendant's understanding of the Wade issue and whether he was capable and competent to represent himself in the Wade hearing. Defense counsel agreed that defendant was able to do so. The court then addressed defendant:
COURT: Let's take it a step at a time. You prosecute the Wade hearing. Fair enough?
DEFENDANT: Fair enough.
COURT: You do okay with that, you convince yourself as well as the Court that, in fact, you have mastery of the issues, we'll take it to the next step. All right?
DEFENDANT: Very well.
COURT: All right. I will permit you, sir. You seem to have a general understanding of what's going on. I cannot tell you that your perception of the law is accurate. But you're articulate in your presentation. You certainly understand the facts of the case and the allegations of the State better than anybody I would suspect. I accept Counsel's representation that he believes you understand what's going on and are capable of proceeding pro se. I do not believe it would be a ...