STATE OF NEW JERSEY v. JAMAR DEMBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6039-05T46039-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAR DEMBY,

Defendant-Appellant.

____________________________

 

Argued January 28, 2008 Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4702.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Robin A. Hamett, Acting Assistant Prosecutor, argued the cause for respondent (Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant, Jamar Demby was convicted of disorderly persons theft, N.J.S.A. 2C:20-3(a) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count nine). On count four he was sentenced to eighteen years imprisonment subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and nine years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), to be followed by a consecutive term of eight years on count nine, subject to five years without parole eligibility as required by the sentencing provisions of N.J.S.A. 2C:39-7(b)(1). Count five was properly merged into count four. A term of six months was imposed on count one concurrent to count four, and a term of five years on count six was also made concurrent to count four. Appropriate fines and penalties were also imposed. Defendant appeals, and we affirm.

The charges result from two separate incidents, the first of which occurred on July 15, 2004. On that date, defendant entered an RXD pharmacy in Camden and demanded cigarettes. The sales clerk, Adaliz Santos, responded by saying, "[G]ive me the money first." Defendant lifted his shirt and displayed a brown handle to an object which Santos believed to be a gun, and proceeded to help himself to cigarettes from behind the sales counter.

Two days later, on July 17, 2004, defendant returned to the store and went behind the sales counter. Santos and the pharmacist, Chetal Prajapati, were in the back of the store working. Prajapati noticed defendant and said "excuse me." Defendant replied by lifting his shirt, and exposing a gun tucked into his pants. He pulled it out, put his finger on the trigger, and asked "what?" Having effectively silenced Prajapati and Santos, he put the gun back into his waistband and continued to help himself to cigarettes.

Prajapati, who had some experience with handguns, testified at trial that the gun displayed during the July 17, 2004, incident was a nine millimeter weapon, black, with maybe some brown, and approximately six inches long. She also testified that defendant had actually stolen cigarettes from the store on a prior occasion, on July 13, 2004, while in the company of an unidentified man. No charges were filed as a result of that event.

All the incidents occurred in the morning in broad daylight. Santos, as well as Monica Calderone, a store employee who witnessed the July 15 incident, identified defendant's photo from an array they were shown by police. No gun was ever recovered. At trial, Santos identified defendant as the perpetrator, as did Calderone.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE JUDGE VIOLATED DEFENDANT'S RIGHT TO SELF-REPRESENTATION WHEN HE DENIED THE DEFENDANT'S MOTION TO PROCEED PRO SE.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

In his pro se brief, defendant contends the following points warrant reversal:

POINT I

DEFENDANT[']S CONVICTION ON COUNT [FOUR] ROBBERY IS LEGALLY INSUFFICIENT.

POINT II

THERE WAS INSUFFICIENT EVIDENCE TO FIND DEFENDANT GUILTY OF COUNTS [FOUR, FIVE, SIX].

(i)

Our courts honor not only the right to counsel as embodied in the Sixth Amendment, but the right of self-representation. State v. Reddish, 181 N.J. 553, 583 (2004). The right of self-representation "is about respecting a defendant's capacity to make choices for himself, whether to his benefit or to his detriment." Id. at 585-86. It is personal, and grounded in the concept that only the defendant "'bear[s] the personal consequences of a conviction.'" Id. at 586 (quoting Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 2540-41, 45 L. Ed. 2d 562, 581 (1975)).

The right may only be exercised, however, where a knowing, intelligent and voluntary waiver has been established after a searching inquiry by the court. Id. at 592-95; State v. Crisafi, 128 N.J. 499, 508-12 (1992). The inquiry conducted pursuant to Crisafi must include an explanation of the charges, of the statutory defenses, and an explanation of the range of sentences. Reddish, supra, 181 N.J. at 593 (citing Crisafi, supra, 128 N.J. at 510-12). In addition, a defendant is to be advised of the possible difficulties he or she will encounter and the lack of wisdom of proceeding without counsel. Id. at 593; Crisafi, supra, 128 N.J. at 510. A defendant must also be told that exercise of the right of self-representation means forfeiture of any future claims of ineffective assistance of counsel. Reddish, supra, 181 N.J. at 594. Credibility findings based on "specific facts, observations, and conclusions" are to be made as a result of this "open-ended" questioning. Id. at 595. After conducting the requisite Crisafi hearing, the trial judge denied defendant the right to proceed pro se. We concur with his conclusions.

Much of the questioning conducted by the trial judge during the November 9 Crisafi hearing was not open-ended; many of the questions posed to defendant were leading in form. When the trial judge did ask open-ended questions, however, defendant had difficulty responding; he was unable to demonstrate a full understanding "in his own words . . . of the challenges that he will face when he represents himself." Reddish, supra, 181 N.J. at 595. The trial judge clearly explained those charges, the elements of the charges, and potential sentencing consequences. At some points the questioning did give the appearance, as defense counsel asserts, of a "mini bar exam."

Defendant answered several questions inappropriately, however, by simply asserting that he was competent and prepared to represent himself. It was often only after repeated prodding from the trial judge that defendant would even attempt to answer specific questions. When the trial judge asked about difficulties defendant might encounter during the cross-examination of witnesses, defendant answered "I don't think I will have any difficulty at all."

It was the trial judge's duty to determine whether defendant's "understanding" of the law was "real or feigned." Id. at 594. In the final analysis, the record reveals that although defendant superficially understood much about the legal process and was able to give some superficially correct answers, he was not capable of making an intelligent, knowing, and voluntary waiver of his right to counsel. The record supports the trial judge's conclusion that defendant did not understand the law sufficiently to proceed pro se.

As the court said in State v. DuBois, 189 N.J. 454, 475 (2007), deference should be given to the trial court's evaluation of the defendant's "understanding of what it meant to represent himself and whether defendant's decision to proceed pro se was knowing and intelligent." The trial judge's conclusion was founded on ample evidence on the record that defendant did not actually understand the legal process sufficiently to make this waiver.

(ii)

Defendant's futile filing of motions, in addition to his lack of responsiveness during the Crisafi hearing, also establish his fundamental inability to understand the law. Defendant filed all his motions, obviously, while represented. While we were not supplied with transcripts for all court proceedings during which defendant's motions were considered, the record we have is nonetheless sufficient.

On June 6, 2005, defendant filed a motion to dismiss the indictment as "based on mere rumor" and as "unverified due to the fact that the victims were not presented before the [g]rand [j]ury." The trial judge denied the motion, and explained to defendant that the issuance of an indictment on hearsay is not improper a concept which defendant rejected. State v. Menter, 293 N.J. Super. 330, 357-58 (citing State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987); State v. Thrunk, 157 N.J. Super. 265, 278 (App. Div. 1978); State v. Ferrante, 111 N.J. Super. 299, 304-06 (App. Div. 1970); State v. Dayton, 23 N.J.L. 49, 56 (Sup. Ct. 1850)). Defendant responded by saying:

my argument is not hearsay. . . . My argument is based on that there was no supporting evidence to support the allegations presented before the [g]rand [j]ury.

. . . .

I'm talking about the investigating officer. He could not provide any . . . supporting evidence, because he wasn't a witness to the actuality . . . .

An additional ground defendant asserted as a reason for dismissal of the indictment, was that the investigator in the matter obtained defendant's name from another store, which "tainted" the case. That information was apparently not presented to the grand jury, although we do not have a copy of the grand jury presentment. Defendant also objected to the indictment because the grand jury was apparently not shown the photo array which was shown to Santos. Neither of these theories constitute reasons for dismissal of the indictment.

Approximately three months later, on September 19, 2005, when the trial judge addressed a motion defendant filed in which he sought to act as co-counsel, defendant reiterated that he was going to "make a motion for dismissal of the indictment for a misconduct of the [g]rand [j]ury." From our reading of the record, it seems both the trial judge and defendant forgot the June 6 proceeding at which the indictment dismissal issue was decided against defendant for the first time. When asked why the motion was being filed so near the trial date, defendant explained it was not his "fault" as his lawyer did not get him the grand jury transcript until June. Clearly, he had the transcripts prior, at least, to June 6, as that is when he filed his first motion to dismiss the indictment. Given the volume of matters trial judges contend with, the trial judge's lack of recollection is understandable. Defendant's confusion is not.

After nearly two months, during a November 9, 2005 proceeding, defendant, for at least the third time, raised the issue of the "legality" of the indictment. On this occasion the trial judge did recall previously addressing a similar motion, and so advised defendant. Defendant responded: "I'm allowed to due process, I'm entitled to that. So if you're going to if I submit a motion, even though you made a ruling, I submitted it for reconsideration then."

When reminded again that the motion had been previously denied, and asked to explain the reason for the new application, defendant said, "what's different about it is that the witnesses were local citizens my argument at the last court appearance at the last indictment hearing was that the witnesses are local people and that there was no reason that the prosecution shouldn't have brought them to the grand jury." In other words, defendant was still insisting that the indictment should be dismissed on hearsay grounds.

Curiously, it appears from the November 9 transcript that defendant, acting pro se, had actually taken an appeal from either the June or September denial of his motion to dismiss the indictment on hearsay grounds and that the appeal was denied. It seems defendant forgot not only about the prior dismissal motions, all of which were made on hearsay grounds, he also forgot about the appeal he himself pursued which was denied.

Towards the close of the November 9 proceeding defendant reiterated that he wanted the judge to rule on his application to dismiss the indictment, this time insisting that on September 22 he had filed a notice to dismiss on the grounds of grand jury misconduct. He again protested that only the investigating officer testified. Defendant said the investigating officer "only served the purpose of consigning to the prosecutor's file before this grand jury, which returned the indictment with no witnesses with firsthand knowledge to verify the allegations alleged in the report." Defendant's statements about the indictment alone raise a question about his ability to actually comprehend what he was told.

(iii)

Initially, defendant had sought to act as co-counsel with his attorney, not to act pro se. That application was addressed on September 19. Apparently, an additional hearing occurred during which this request was discussed, between June 6, 2005, and September 19, 2005, although no transcript of the proceeding was supplied. It is apparent from references in the September 19 transcript that during that earlier proceeding the court directed defendant to file an application to proceed pro se and not as co-counsel. Defendant nonetheless pursued his request to act as co-counsel. When asked to explain his legal authority to act as co-counsel, defendant said, "Well, sir, the law library at the Camden County Jail[,] they have a standardized form there to act as co-counsel . . . ." The court then reminded defendant that he had previously told him to file his application to proceed pro se by September 5 and that defendant had failed to do so. In fact, defendant did not file that application until weeks later.

(iv)

In the September 19 transcript, defendant also makes reference to the "last time" he was in court and the "suppression of the gun." We have no transcript of that proceeding. The defendant goes on to say:

The last time I was in court a while ago I was talking to you about the suppression of the gun and you had explained that considering the fact that there is no gun in this case that I don't have grounds or standing to suppress considering the fact that there is none. And, since you you know, you stated that I was wondering if it was possible you can submit an order form.

. . . .

Well, if there's nothing to suppress then I shouldn't be charged with one.

. . . .

Well, I just felt as though that considering the fact that there is no gun then I shouldn't be charged with one, but yet you won't allow me to suppress the gun when due process gives me that right.

Defendant's pursuit of his alibi defense further demonstrates his confusion. Defendant, on his own, filed an alibi notice naming his sister, Theresa Demby, as an alibi witness. The record does not indicate for which incident defendant intended to have her testify. The use of defendant's sister as an alibi witness appears to have been an ongoing conflict between counsel and defendant. Because defendant's sister had told him she would not testify, counsel refused to raise the defense during trial. Defendant complained that his attorney had "abandoned" the alibi line of defense he wished to pursue. At sentencing, the following exchange took place:

[Defendant:] Sir, the reason why I feel as that I'm entitled to a new trial because the Sixth Amendment of the United States Constitution states that, it gives me the right to make a defense as I know it, regardless of whether or not if he spoke to my sister and she stated that she would not testify, I think that's irrelevant to the matter of asserting my line of defense.

[The court:] Well, sir, how are you going to rely upon an alibi that you were somewhere else and you say your sister was the person who was going to back you up when your sister comes into the courtroom and says she ain't testifying?

[Defendant:] Well, regardless of whether or not she was going, she was to testify, still had a right to have my defense implemented regardless if any of my witnesses showed up.

[The court:] But, sir, what kind of credibility do you have with a jury if you're saying

[Defendant:] That would be for the jury to decide.

It would have been improper for counsel to have pursued an alibi defense he knew he could not establish because the prospective witness refused to testify. It would have been similarly improper for defendant to have pursued it, another principle he seemed incapable of understanding.

Some of defendant's legal filings were made for reasons even defendant could not explain. For example, on May 5, 2006, immediately prior to the sentencing hearing, the judge asked defendant preliminarily if he wished to be heard on his motion for the judge to recuse himself. Defendant responded by saying, "Sir, on January 30[], not excuse me what's that March 28[], I think it was that you heard my motion for recusal of which you denied." The court reminded defendant that it never ruled on the motion for recusal, at which point defendant said he would withdraw it and just pursue his motion for a new trial.

(v)

Defendant's demeanor during all court proceedings seems somewhat confused. This confusion is most clearly exhibited when defendant explained during the November 9 proceeding that he was seeking to represent himself because, "if the defendant is waiving his constitutional right to the assistance of counsel, then the [S]tate cannot impose an extended term." Defendant was not only mistaken, but the error had apparently been previously explained to him to no avail. Unfortunately, we were not provided with the transcript of the proceedings during which the extended term sentence potential was initially reviewed with defendant. The important point is that defendant persisted in his mistaken belief that if he represented himself, the sentencing consequences would be lessened as a result.

(vi)

Defendant's first point in his pro se brief is that merely showing a handgun during a robbery is legally insufficient for a first-degree conviction. That is simply incorrect, as the offense requires only that a person be "armed with" a deadly weapon while in the course of committing a theft. N.J.S.A.

2C:15-1(b).

Defendant's second point in his pro se brief is that there was insufficient evidence for him to have been convicted of first-degree robbery, unlawful possession of a weapon, and possession of a weapon for unlawful purpose. In support of that proposition he says only that "[i]n light of the mitigating evidence presented, the [j]ury [c]ould not have found defendant [g]uilty of these counts beyond a reasonable doubt." After reviewing the record and the applicable law, we find insufficient merit in defendant's pro se arguments to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

(vii)

In the final analysis, even if the trial judge did not engage defendant in a thoroughly open-ended exchange, he reached the correct conclusion for the correct reason. The ultimate focus must be defendant's actual understanding of the meaning of the waiver of his right to counsel. His rambling, repetitive, and confused statements establish his limited ability to comprehend legal process and its attendant risks. Reddish, supra, 181 N.J. at 595. We agree that defendant simply did not have the ability to make a knowing, intelligent, and voluntary waiver of his right to counsel.

Defendant wanted to waive his right to counsel, among other reasons, because of his erroneous belief that self-representation would shield him from an extended term sentence. He wanted to pursue an arguably fraudulent alibi defense. When these circumstances are added to his inability to clearly remember, or to accept principles of law and outcomes which were not to his liking, it is clear defendant could not make a knowing or intelligent waiver.

Affirmed.

Count one actually charged defendant with first-degree robbery, however, he was found guilty only of the lesser included offense of disorderly persons theft.

(continued)

(continued)

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A-6039-05T4

April 4, 2008