STATE OF NEW JERSEY v. MARCUS KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4337-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS KING,

Defendant-Appellant.

___________________________________________________

November 9, 2010

Submitted October 14, 2010 - Decided

Before Judges Fisher, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-10-0697.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

A. Peter DeMarco, Jr., Acting Somerset County Prosecutor, attorney for respondent (AnthonyJ. Parenti,Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Having been convicted by a jury of three counts of first-degree robbery and sentenced to an aggregate thirty-five year prison term subject to an 85% parole ineligibility period, defendant argues in this appeal that the trial judge erred by denying him the right to represent himself at trial, in failing to instruct the jury on accomplice liability, and in imposing what defendant claims is an excessive sentence. We find no error and affirm.

To put these issues in their proper setting, the jury heard evidence that, on September 25, 2002, defendant Marcus King (defendant), Khaleel Butts and Saheed Nurideen, while at a party in Plainfield, agreed to rob the nearby Howard Johnson Hotel and Red Bull Inn. They arrived at the Howard Johnson Hotel on Route 22 in North Plainfield at approximately 1:00 a.m.; defendant, Butts and Nurideen were in possession of a shotgun, a BB gun, and a knife, respectively. As this group reached the front desk, the hotel clerk, Rajinder Singh Bhatti, emerged from an adjacent room and walked to the desk. Defendant and his cohorts then brandished their weapons, assaulted Bhatti, and stole a few hundred dollars from the hotel's register. They also demanded access to the hotel safe, but Bhatti claimed he did not have the key, and the three departed.

At approximately 2:00 a.m. the same night, defendant, Butts and Nurideen entered the Red Bull Inn on Route 22 in Bridgewater. They approached the hotel clerk, Henry Shih; one of the three put a knife to Shih's stomach and demanded money. Another demanded that Shih take them to the hotel safe. When shown the safe, one of the culprits kicked Shih in the chest and ordered him to open it. Shih explained that only the hotel owner knew how to open the safe.

While Shih was being assaulted by two of the culprits, the third approached Jessica Rankin, a hotel guest, in the premises' kitchen, thrust the barrel of a silver handgun in her side, and told Rankin to lay down on the floor. The robber searched Rankin's pockets but found nothing to steal. All three then left the premises.

A few days later, defendant and Butts were apprehended and arrested following their robbery of a McDonald's in Middletown; a third robber escaped. Defendant was questioned by detectives and gave a statement acknowledging his participation in the robberies at the Howard Johnson Hotel and the Red Bull Inn. Butts also confessed.

Defendant was indicted and charged with three counts of first-degree robbery, N.J.S.A. 2C:15-1(a). Defendant initially entered a guilty plea pursuant to an agreement that required his testimony against Nurideen. When defendant later chose not to cooperate, the plea agreement was vacated, and he and Nurideen went on trial for the robbery charges. Butts had previously entered a guilty plea and testified for the State against defendant and Nurideen.

Defendant was convicted on all three counts of first-degree robbery. The judge imposed a twenty-year prison term on the conviction for robbing Bhatti (count one), a fifteen-year term for the Shih robbery (count two), and a fifteen-year term for the Rankin robbery (count three). The terms imposed on counts one and two were ordered to run consecutively; the term imposed on count three was ordered to run concurrently to count two. The judge also imposed an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed, raising the following arguments for our consideration:

I. THE JUDGE VIOLATED DEFENDANT'S RIGHT TO SELF-REPRESENTATION WHEN HE DENIED THE DEFENDANT'S MOTION TO PROCEED PRO SE. U.S. Const. Amends. VI and XIV; N.J. Const. (1947), Art. I, Par. 10.

II. THE TRIAL COURT'S FAILURE TO INSTRUCT ON ACCOMPLICE LIABILITY IN CONNECTION WITH THE CHARGE OF ARMED ROBBERY CONTAINED IN COUNT THREE OF THE INDICTMENT DENIED 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).

III. THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

We find no merit in Point I. The Sixth Amendment declares that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend VI. Our state constitution also guarantees that right. N.J. Const. art. I, paragraph 10. The right to the assistance of counsel implies the "correlative right" of self-representation. Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2531, 45 L. Ed. 2d 562, 570 (1975); State v. DuBois, 189 N.J. 454, 465 (2007). In determining whether an accused has knowingly and intelligently waived his right to counsel in order to represent himself, he must be made aware of the "dangers and disadvantages" of self-representation. Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582. In essence, the trial judge must establish that the accused "knows what he is doing and [that] his choice is made with eyes open." Ibid.; DuBois, supra, 189 N.J. at 466; see also State v. Reddish, 181 N.J. 553, 580 (2004); State v. Crisafi, 128 N.J. 499, 510 (1992).

Before making the determination, a trial judge should consider whether the accused 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.

[Reddish, supra, 181 N.J. at 594 (quoted in DuBois, supra, 189 N.J. at 467-68).]

The Court has also instructed that a trial judge must "ask appropriate open-ended questions that will require defendant to describe in his own words his understanding of the challenges that he will face when he represents himself at trial." Reddish, supra, 181 N.J. at 595. In summing up the nature and content of the inquiry, our Supreme Court has held that the trial court must inform the accused of:

(1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-represent-ation will have on the right to remain silent and the privilege against self-incrimination.

[DuBois, supra, 189 N.J. at 468-69.]

From the accused's responses, the trial judge must make "credibility determinations bottomed on specific facts, observations, and conclusions." Reddish, supra, 181 N.J. at 595. Ultimately, "whether the waiver is knowing and intelligent given the unique circumstances of each case" rests in the trial judge's sound discretion. Ibid.

Here, it was not until the eve of trial that defendant orally requested the right to represent himself. The judge examined defendant at length in accordance with the principles outlined above and ultimately found he was "not satisfied that [defendant] fully understand[s] the nature and consequences of this decision." The judge observed that defendant could not state the defenses that might be applicable to the charges and could not "intelligently address the questions . . . put to [defendant] with respect to the Rules of Evidence and the Rules of Court." We find no abuse of discretion in the trial judge's decision in this regard.1

In Point II, defendant contends the trial judge erred in failing to instruct the jury on accomplice liability. We find the argument to be of insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and add only the following brief comments.

Because defendant did not seek such an instruction at trial or object when the instruction was not given, reversal is not required unless we determine that the instruction's absence constituted plain error. R. 2:10-2. Here, any error with regard to this point was not capable of producing an unjust result because it caused no prejudice to defendant. See State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Defendant's argument on this point relates to his culpability for the Rankin robbery. The evidence reflects that defendant was in the process of robbing Shih while another of the three culprits was robbing Rankin. Although he expressed no objection to the charge, defendant now claims that if the jury had heard instructions regarding accomplice liability, it could have acquitted him of the Rankin robbery. This contention is illogical.

The jury was instructed that defendant could be found guilty of robbing Rankin if, in the course of committing a theft, he knowingly inflicted bodily injury or used force upon her, or if he threatened Rankin or purposely put her in fear of immediate bodily injury, pursuant to N.J.S.A. 2C:15-1(a). Defendant has not argued there was a lack of evidence to support a finding that he was a principal in the Rankin robbery nor has he argued the State otherwise failed to prove he participated in that particular robbery.

Instead, defendant argues without clear explanation that he was prejudiced because the jury was not told that he could have been found guilty of the Rankin robbery by way of accomplice liability pursuant to N.J.S.A. 2C:2-6(c)(1). In fact, the absence of an accomplice liability instruction made more difficult the State's burden of proving defendant guilty of the Rankin robbery. Had accomplice liability been charged, the State would not have had to show that defendant was a principal in the Rankin robbery but only that another of the group committed the robbery and that defendant shared the intent to rob Rankin, as to which the evidence was abundant. See State v. Whitaker, 200 N.J. 444, 461 (2009). By omitting accomplice liability instructions, the judge only imposed a more difficult burden on the State. This omission -- if erroneous -- prejudiced the State, not defendant.

Lastly, in Point III, defendant contends the judge imposed an excessive sentence by placing too much emphasis on the three aggravating factors found -- N.J.S.A. 2C:44-1(a)(3), (6) and (9) -- and in finding no mitigating factors. Defendant does not argue the judge erred in imposing consecutive prison terms on counts one and two. We find insufficient merit in defendant's claim of excessiveness to warrant discussion in a written opinion. R. 2:11-3(e)(2). The record reveals defendant's significant criminal history; he was convicted, among other things, of first-degree robberies in 2003 and 2005. Having closely examined the record in light of the parties' arguments, we conclude that the trial judge engaged in a careful qualitative analysis of the aggravating factors, properly found there were no mitigating factors, and imposed a sentence that hardly shocks the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

1We also find no merit in defendant's argument that he should have been allowed to represent himself because Nurideen was previously permitted that right. The disposition of such an application depends upon the knowledge and understanding of the individual defendant. It does not logically follow that because one defendant was permitted to represent himself that the judge must allow that same right to another.