STATE OF NEW JERSEY v. PATRICK SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK SMITH,

Defendant-Appellant.

-

October 28, 2016

Submitted October 6, 2016 Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-11-1904.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).

PER CURIAM

A jury convicted defendant Patrick Smith of possessing cocaine and dispensing it to Robert E. Murphy but acquitted defendant of robbing and murdering him. The trial court sentenced him to eight years in prison. Defendant appeals, arguing

POINT I

THE TRIAL JUDGE IMPROPERLY DEPRIVED SMITH OF HIS CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AT TRIAL BASED ON AN UNWARRANTED FEAR THAT IF HE MENTIONED ANY FACTS IN HIS OPENING STATEMENT, IT WOULD CONSTITUTE "TESTIMONY" THAT WOULD REQUIRE THAT JURORS BE TOLD OF HIS PRIOR CRIMINAL RECORD. THE JUDGE'S COLLOQUY ON THE SUBJECT WAS INADEQUATE TO DETERMINE WHETHER SMITH KNOWINGLY AND INTELLIGENTLY SOUGHT TO WAIVE COUNSEL. U.S. CONST. AMEND. VI; N.J. CONST. ART. 1, 10.

POINT II

THE COURT ERRED IN FAILING TO PROVIDE JURORS WITH AN INSTRUCTION ON ACCOMPLICE LIABILITY BECAUSE THE JURORS NEEDED TO DETERMINE WHETHER SMITH SHARED IN HIS GIRLFRIEND'S INTENT TO DISTRIBUTE COCAINE TO HER FRIEND MURPHY.

POINT III

THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE JUDGE FAILED TO CONSIDER THE CORRECT SENTENCING RANGE IN IMPOSING THE EXTENDED-TERM SENTENCE.

We have considered these arguments in light of the trial record and applicable law. We affirm defendant's conviction but vacate his sentence and remand for resentencing.

I.

We derive the following facts from the trial record. In May 2010, defendant had been dating Sheri Geathers for approximately three years. On May 21, Geathers was home in her Jersey City apartment when Murphy called her at 6:30 p.m. Murphy asked Geathers if she could get cocaine for him. Geathers called defendant and asked whether he could get any cocaine, and he said yes. Geathers then reported back to Murphy and arranged to pick up the money for the cocaine at Murphy's apartment.

When Geathers returned home she called defendant, who came to get the money. Geathers waited at home for defendant to return with the cocaine. Defendant returned sometime after 8 p.m., and defendant and Geathers walked to Murphy's apartment, gave him the cocaine, and returned to Geathers' home. There, they watched TV for an hour or less before defendant left to meet his wife.

The same night, Murphy also asked Winfred Hymes for cocaine. Hymes brought him two bags of cocaine shortly after 10 p.m. On his way home, Hymes encountered defendant, who sucker punched him and tried to rob him on the same block as Murphy's apartment. Defendant broke Hymes's glasses, his lip, and one of his teeth. Around 11:30 p.m., defendant returned to Geathers' apartment to pick up a sweatshirt because he was cold (Geathers did not see him again until May 23).

On May 22 around 3:00 a.m., Murphy's adult son returned home from work. He saw two pools of blood in front of the refrigerator before locating his father lying on his bedroom floor, not breathing. He called 9-1-1.

When the paramedics arrived, they found Murphy lying dead on the floor with multiple stab wounds on his chest, from his neck down to his naval. The medical examiner conducted an autopsy and found three major blunt contusions on the back of Murphy's head. He also found at least fifteen stab wounds, covering Murphy's face, neck, and torso. Seven of the stab wounds penetrated Murphy's lungs, killing him. The toxicology report showed Murphy's urine contained a "fairly high" amount of cocaine metabolites.

At the crime scene, the police found Murphy's wallet next to his body. It did not contain money in the compartment designed for it, but the police found a $50 bill in a smaller compartment of the wallet. They also found several footprints, but none provided enough detail for comparison with other footprints. Murphy's phone showed a call from Dominque Smith and a call from Hymes, his last.

The police determined Smith lived with his mother, Geathers. When an officer went to the residence the next day, he saw defendant leaving Geathers' residence and decided to interview him. Noticing defendant had older cuts on his hands, the officer asked him to come to the police station for further questioning, and defendant agreed.

The police searched defendant when he arrived at the station. They found cocaine and arrested him. The police then brought Geathers into the station, placing defendant and Geathers in adjacent interview rooms. Defendant began banging on the desk and wall in an apparent effort to interrupt Geathers' interview. Defendant then took out a vial of cocaine and started snorting it. In total, the police found five vials of cocaine on defendant; however, the police did not find any blood on defendant's clothes or shoes, nor did the State's testing identify defendant as a source of DNA found at the crime scene.

On November 16, 2010, a Hudson County grand jury returned a fourteen-count indictment charging defendant with murder, robbery, and related offenses, along with eight drug offenses.1 Before defendant's first trial in September 2012, the State dismissed counts five and six relating to unlawful possession of a knife.

At the conclusion of defendant's first trial, the jury found him guilty of counts seven through twelve and not guilty of counts thirteen and fourteen, but deadlocked on counts one through four (the murder and robbery charges). Upon learning a juror had investigated defendant's criminal history, the trial judge vacated defendant's convictions and ordered a new trial.

On the day of the second trial, moments before the start of jury selection, defendant motioned the court to represent himself. Notwithstanding the last-minute nature of defendant's motion, the judge2 delayed jury selection and proceeded to question him regarding his request, to determine if defendant was making the request knowingly and intelligently. The judge began by asking defendant about prior convictions, and defendant replied he had "[o]ne or two" in Georgia from "[y]ears ago."3 In response, the judge explained

Okay. If you represent yourself, if you say one fact, one fact, that [did not] come from a witness, [you have] testified in front of that jury. What the Prosecutor is going to do to me then is say, Judge, that fact I'm not presenting, there's going to be no live witness who's going to testify to that, I am now bringing the defendant's convictions in front of this jury. There is no way that [I have] seen people that can ask or say something that are representing themselves that [do not] actually testify. So what you're going todo is [you are] going to allow . . . the Prosecutor to get in front of this jury that you have prior convictions[,] and [they are] going to be able to use that against you in this case. Do you realize that?

Defendant said, "They they don't have anything to do with this case so I I wouldn't mind." The judge insisted, "They it will, the moment you open up your mouth in front of the jury and accidentally put a fact into . . . the record that was not testified to by one of the witnesses."

Further questioning by the court established defendant was fifty years old, with a tenth-grade education. His only previous trial experience was watching his first trial. The judge asked what made him comfortable he knew how to ask questions. Defendant replied, "I'm just going to have to take that chance because I I don't feel comfortable going to trial with him." The judge assured defendant, "No, no, . . . I've watched Mr. Broege try cases, he knows what he can do, he knows what he can't do. [He has] . . . read your entire trial, the past trial[,] and [he has] also read all the discovery." Defendant replied, "He told me he didn't read none of that."

Defendant's attorney then provided the following explanation of what he said to defendant

Judge, the first thing that I did[,] I believe at Your Honor's suggestion[,] was that I go and read the testimony of Sheri Geathers and I think I told Mr. Mr. Smith this, I read Sheri Geathers' testimony and I I then looked through the transcript for the for the State's good witness because I couldn't find anything in Sheri Geathers' testimony to connect Mr. Smith to this murder and then, of course, I've read the rest of the transcript twice and that's the case. I mean this is I I said this on the record yesterday, I I appreciate how Mr. Smith feels, I really do. I I think that I have spent less time with him in preparing this case for trial than I ordinarily would spend with somebody facing a murder trial but this is his second murder trial. I have received assurances from the Assistant Prosecutor that we are about to try the same case over again, no surprises. So

The prosecutor interjected he planned to call one additional witness, but he had mentioned this during the initial discovery. Defendant's attorney went on to assure defendant regarding his ability to try the case, stating that he and his associate had "analyzed [the case] inside and out."

The court then asked defendant whether he knew what a direct question was. He answered, "When you ask a person a question." The court explained

See what happens is, when [you are] asking people questions, you do cross-examination and direct. [There is] a difference in style that you have to do. I [do not] think you have any experience at all in trying cases and knowing how to try a case and as such, with a tenth grade education, having only seen one trial, not knowing what you can say and what you cannot say, do you know the Rules of Evidence? Have you ever studied them?

Defendant admitted he had never studied them, adding, "I just been going over my case over and over and I feel that I can I can handle myself." The judge continued

Well, as I said, the moment you open up your mouth and add one fact that is not coming from a witness, then your criminal record goes in front of this jury. That jury one of the reasons why . . . I overturned that conviction for the drug cases somebody looked at your previous record. That's going to affect their testimony. I [do not] think [you are] capable of representing yourself[.]

Defendant responded, "Then then it shouldn't take 16 months and and they should have had this information . . . ." The judge explained, "They had the entire case." Defendant said, "You just asked him a question and he went all the way around in a different direction and didn't really answer your question, he he said it you told him just to look at one specific part of the case and that was Ms. Geathers."

The judge disagreed, concluding

[Y]ou [did not] listen to me[,] and you [did not] listen to him. You heard something[,] and you misinterpreted it. What I told him was, that if you read that one witness, that that was the entire key to the State's case. . . .

I [cannot] in good conscience let you try this case . . . if you have a chance of beating this murder case, [he is] going to give it to you, [you are] not going to give it to yourself. . . . It's a very technical area and if, in fact, you tried to represent yourself, you would convict yourself. . . . [I am] not going to allow you to represent yourself.

During the charge conference, defendant's counsel asked the court to provide the jury with the "mere presence" portion of accomplice liability instruction "with regard to count [one] . . . and the felony murder count." The judge told defendant's counsel to submit a draft of his proposed charge by "tomorrow morning." The record does not indicate whether defendant's counsel submitted the proposed charge. The judge's charge did not include a "mere presence" instruction or an accomplice liability instruction. The jury subsequently acquitted defendant of counts one through four, the murder and robbery charges, but found him guilty of counts seven through twelve, the drug charges.

Because the trial judge retired before defendant's sentencing hearing, another judge sentenced him. The sentencing judge granted the State's motion for an extended term sentence under N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3, citing defendant's twenty arrests and six felony convictions.4 The judge found aggravating factors three (risk of recidivism), N.J.S.A. 2C:44-1(a)(3); six (criminal history), N.J.S.A. 2C:44-1(a)(6); and nine (deterrence), N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. The judge stated he was "clearly convinced . . . the aggravating factors substantially predominate." The judge sentenced defendant to eight years in prison, four years without parole. The judge noted defendant had already served almost four years in prison, so he would be eligible for parole in less than a week after his sentencing hearing.

II.

Defendant appeals (1) the trial court's denial of his motion to proceed pro se, (2) the trial court's failure to instruct the jury on accomplice liability, and (3) the trial court's failure to consider the correct sentencing range. We consider each of these arguments in turn.

Denial of motion to proceed pro se.

When a trial court denies a defendant's motion to proceed pro se, an appellate court reviews its decision for abuse of discretion. State v. King, 210 N.J. 2, 15 (2012); State v. DuBois, 189 N.J. 454, 475 (2007). "The right [of self-representation] is either respected or denied; its deprivation cannot be harmless." King, supra, 210 N.J. at 22 (quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8, 79 L. Ed. 2d 122, 133 n.8 (1984)).

A defendant's right to self-representation is, however, not absolute. A trial court must recognize a criminal "[d]efendant possesses both the right to counsel and the right to proceed to trial without counsel." DuBois, supra, 189 N.J. at 465. "[B]ecause of the importance of trial counsel to the criminal justice process, the courts must indulge in every reasonable presumption against waiver." State v. Ortisi, 308 N.J. Super. 573, 587 (App. Div.) (citing State v. Gallagher, 274 N.J. Super. 285, 295 (App. Div. 1994)), certif. denied, 156 N.J. 383 (1998). Defendant's self-representation 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 court 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 court should explore with a defendant. Justice Pollack wrote

[T]he 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 (citations omitted).]

In State v. Reddish, 181 N.J. 553 (2004), the Court concluded a trial court "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." Id. 595. The Court consequently 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 State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div.), certif. denied, 170 N.J. 210 (2001), we concluded the trial court did not abuse its discretion when it denied the defendant's request to proceed pro se after jury selection but before opening statements. In contrast, we reversed a trial court's denial of a defendant's right to self-representation when he motioned the court before it empaneled a jury. State v. Thomas, 362 N.J. Super. 229, 240 (App. Div.), certif. denied, 178 N.J. 249 (2003) (finding self-representation motion "was timely made, about six weeks prior to trial.").

Defendant motioned the court just before the jury panel was about to enter the courtroom for jury selection. Nevertheless, the judge delayed jury selection to consider defendant's application, and then proceeded to question him regarding his motion. The judge correctly informed defendant of the risk he could face if he crossed the line separating counsel from witness and "forfeit his right to remain silent and subject himself to cross-examination by the State." Reddish, supra, 181 N.J. at 594. The judge also correctly told defendant he had to comply with the rules of criminal procedure and evidence. Crisafi, supra, 128 N.J. at 512.

While the judge may have conducted a more thorough colloquy regarding defendant's understanding of his rights, we note the judge already knew defendant, and the case against him, from defendant's first trial. Moreover, during his colloquy with the court, defendant misinterpreted the court's attempt to explain how his counsel had adequately prepared for trial and his statements to the court did not otherwise show him capable of representing himself. Without an accurate understanding of his counsel's preparation, defendant could not intelligently waive his right to counsel and represent himself. Defendant's confusion did not surmount the law's presumption against waiving his right to counsel. Ortisi, supra, 308 N.J. Super.at 587.

During the colloquy with the court, defendant effectively acknowledged he probably did not know how to represent himself. Nevertheless, he said he wanted to "take that chance." Considering the serious nature of the charges, and the essentially emotional basis for defendant's last-minute request, we discern no mistaken exercise of discretion in the trial court's denial of defendant's motion. The record contains ample evidence defendant did not "knowingly and intelligently" waive his right to counsel. Crisafi, supra, 128 N.J. at 509.

Failure to Instruct on Accomplice Liability.

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Jordan, 147 N.J. 409, 421 (1997) (quoting State v. Green, 86 N.J. 281, 287 (1981)). Because an individual's liberty is at stake, "[e]rroneous instructions on matters or issues that are material to the jury's deliberations are presumed to be reversible error in criminal prosecutions." Id. at 422 (citing State v. Warren, 104 N.J. 571, 579 (1986)).

When an issue is not raised below, we apply the plain error rule. Under Rule 2:10-2, "[a]ny 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 . . . court." See also State v. Ross, 218 N.J. 130, 142-43 (2014) (quoting R. 2:10-2). To warrant reversal, the possibility of an unjust result 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).

Defendant did not request a general accomplice liability charge nor did he preserve his request for a modified "mere presence" charge regarding the murder and felony murder counts.5 Thus the plain error rule applies. Nevertheless, defendant contends the trial court should sua sponte have charged the jury under accomplice case law such as State v. Savage, 172 N.J. 374, (2002), where our Supreme Court explained

If both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.

[Id. at 388 (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965)).]

However, Savage, Fair, and Bielkiewicz addressed the instructions required "[w]hen a prosecution is based on the theory that a defendant acted as an accomplice" and "'when lesser included offenses are submitted to the jury.'" Ibid. (quoting Bielkiewicz, supra, 267 N.J. Super. at 528). Here, the State did not charge defendant as an accomplice nor did the prosecutor argue such liability before the jury. The trial court was therefore not obligated to instruct the jury on accomplice liability. Accordingly, we find no error, let alone plain error, regarding the failure to instruct the jury on accomplice liability,

Failure to Consider Correct Sentencing Range.

We review a trial court's decision to impose an extended-term sentence for an abuse of discretion. State v. Pierce, 188 N.J. 155, 166 n.4 (2006) (citation omitted). Specifically, an appellate court should affirm a sentence unless (1) the trial court violated the sentencing guidelines, (2) competent, credible evidence in the record did not support the findings of aggravating and mitigating factors, or (3) the application of the law to the facts shocks the judicial conscience. State v. Bolvito, 217 N.J. 221, 228 (2014) (citation omitted).

We previously noted the sentencing judge mistakenly stated the sentencing range for defendant's extended term as "between five and ten years," rather than between three and ten years.6 Based on this error, defendant argues the judge "erroneously believed that the midpoint of the sentencing range was 7.5 years, when it was actually 6.5 years."

When the sentencing judge misunderstood the correct sentencing range for defendant's extended-term sentence, he applied the wrong legal principles, contrary to State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Roth, 95 N.J. 334, 363 (1984)). We must therefore remand for the trial court to consider defendant's correct sentencing range and then resentence defendant.

Affirmed as to defendant's convictions, vacated as to his sentence, and remanded for resentencing. We do not retain jurisdiction.

1 Specifically, the indictment charged defendant with murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); armed robbery, N.J.S.A. 2C:15-1 (count three); robbery, N.J.S.A. 2C:15-1 (count four); possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count six); possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count seven); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count eight); distribution of cocaine, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count nine); possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count ten); possession of cocaine with intent to distribute within 1,000 of school property, N.J.S.A. 2C:35-7 (count eleven); possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count twelve); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count thirteen); possession of cocaine with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count fourteen).

2 The same judge presided at defendant's first trial.

3 Defendant later told the judge he had served time in Trenton State Prison for robbery and car theft.

4 Defendant correctly points out that the judge mistakenly stated the sentencing range for defendant's extended term as "between five and ten years," rather than three to ten years. See State v. Pierce, 188 N.J. 155, 166-70 (2006).

5 We note the jury found defendant not guilty of the two murder counts without receiving the "mere presence" instruction.

6 Once the statutory eligibility criteria are met, the permissible range of sentences available "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Pierce, supra, 188 N.J. at 169.