STATE OF NEW JERSEY v. HIRIAL WASHINGTON, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1188-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HIRIAL WASHINGTON, III,

Defendant-Appellant.

____________________________

December 8, 2011

Submitted November 7, 2011 - Decided

Before Judges Grall and Alvarez.

On appeal from Superior Court of New

Jersey, Law Division, Gloucester County,

Indictment No. 08-11-986.

Louis Charles Shapiro, attorney for

appellant.

Sean F. Dalton, Gloucester County

Prosecutor, attorney for respondent

(Joseph H. Enos, Jr., Assistant Prosecutor,

on the brief).

PER CURIAM

A jury found defendant Hirial Washington, III guilty of third-degree shoplifting, N.J.S.A. 2C:20-11b(1). Defendant was eligible for a discretionary extended term as a persistent offender based on his four prior convictions for crimes of the third degree or higher, for which he had been sentenced on four separate occasions within ten years of this crime. N.J.S.A. 2C:44-3a. In addition, defendant had other convictions for crimes committed more than ten years earlier than this crime as well as convictions for crimes of the fourth degree and an extensive juvenile record. The judge sentenced him to a six-year term with a three-year discretionary period of parole ineligibility, N.J.S.A. 2C:43-7a(4); N.J.S.A. 2C:43-6b, and imposed the appropriate assessments and penalty.

On a day when the temperature was seventy degrees, defendant entered a K-Mart wearing a large coat and a hat. His apparel attracted the attention of the store's loss-prevention officer. He watched defendant select a large tote, put it in his shopping cart and move through the store filling the tote with multiple containers of various brand name cosmetics, pain relievers, shampoo, strips for whitening teeth, razors and condoms. Defendant then went to the door of the store without stopping at one of the cash registers. He was stopped and arrested. The loss-prevention officer watched while a clerk tallied the total price of the products, which was about $1000.

On appeal defendant presents one issue for our consideration:

THE TRIAL COURT ERRED IN NOT INQUIRING INTO APPELLANT'S COMPETENCE TO STAND TRIAL AND IN SUBJECTING APPELLANT TO TRIAL, THUS DEPRIVING APPELLANT OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS.

Defendant's argument is based on his courtroom conduct. He appeared late for jury selection and after appearing he nodded off and snored. Defense counsel mentioned this to the judge and said he "might" make a motion for a new panel. The judge indicated that he could see defendant sleeping but thought it was appropriate to continue and later discuss whether the jurors should be given a curative instruction.

As the selection process continued, the judge excused two jurors who said they noticed and might be affected by defendant's sleeping. The judge seated jurors who indicated that defendant's sleeping would have no impact on their ability to be fair and impartial.

The judge took further action to ensure that the jury impaneled would not include anyone who was influenced by defendant's behavior. When a panel of twelve had been selected, the judge addressed the jurors as a group, which allowed him to ascertain whether defendant's conduct subsequent to the initial questioning of each juror had affected anyone's ability to serve. Highlighting the critical facts, that defendant "obviously" was sleeping and "hit his head" on counsel table, the judge stressed the importance of each juror's ability to be fair and impartial and asked anyone who could not to raise his or her hand. No juror responded.

In addition, the judge discharged the jurors for the day without swearing them in. When they left the courtroom, the judge asked defendant if he was under the influence. Defendant's attorney advised his client not to answer. He did not raise any question about his client's competence.

The next day defendant did not appear in time for trial, and the judge again directly raised the issue of defendant's absence and sleeping. He directed them that they could not speculate about the reasons for defendant's absence or sleeping or consider that behavior in arriving at a verdict. Assuring the jurors that he wanted an honest response and would not be annoyed by any answer, the judge asked them to indicate if they could not follow that direction. No one responded.

Although defense counsel moved for a new panel, the judge denied that request. He explained that the jurors were well aware that they would have been excused if they indicated they could not be impartial and that he credited their responses to his questions; the judge was confident that each member of the panel could be fair and impartial. Accordingly, the jury was sworn and trial commenced before defendant arrived.

At the close of the State's case, defense counsel advised the judge that his client would not testify. The judge addressed defendant and stressed that the decision about his testimony was his, not his attorney's. He asked defendant, "[Y]ou determined you're not going to testify?" Defendant responded, "No, I'm not, Your Honor." When the judge advised defendant he could change his mind after the testimony of the witness for the defense and up until the time the defense rested, defendant said "[a]ll right." The judge continued his colloquy with defendant and received equally responsive answers.

After the jury returned its verdict, the prosecutor moved to revoke defendant's bail. In opposing that request, defense counsel represented defendant did not live far away, was a high school graduate and had "[n]o mental health issues." Defendant's pre-sentence report indicates "casual" heroin use, no history of confinement for mental health or substance abuse treatment other than inpatient treatment in 2001, which was imposed as a condition of a sentence of probation imposed on a 2001 conviction for third-degree theft by deception.

After considering the record and the arguments defendant presents to establish error in the judge's failure to raise the question of his competence sua sponte, we have determined that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.