STATE OF NEW JERSEY v. MICHAEL GORE, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1924-06T41924-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GORE, JR.,

Defendant-Appellant.

_________________________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

01-09-1181.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Marcia Blum,

Assistant Deputy Public Defender, of counsel

and on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent (William

A. Haumann, Assistant Prosecutor, of counsel

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was convicted by a jury of murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1(b); and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. Following merger of the felony murder conviction into that for murder, defendant was sentenced to life in prison subject to a thirty-year parole disqualifier on the murder conviction, to a consecutive eighteen-year prison term subject to a nine-year parole disqualifier on the robbery conviction, and to a concurrent term of five years on the weapons possession conviction. The State has acknowledged that the weapons possession conviction should have merged with the conviction for murder. All sentences were run consecutively to a sentence that defendant was already serving.

Defendant has appealed both his convictions and his sentence. Upon learning that the Public Defender's Office had misplaced defendant's timely notice of appeal, we permitted late filing of that notice. On appeal, defendant presents the following arguments through counsel:

POINT I

THE COURT DISMISSED DEFENDANT'S CLEARLY STATED REQUEST TO REPRESENT HIMSELF.

POINT II

THE UNSIGNED STATEMENT SHOULD NOT HAVE BEEN ADMITTED. (Not Raised Below.)

POINT III

THE CONVICTION FOR POSSESSION OF A KNIFE FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH THE ROBBERY.

POINT IV

THE LIFE TERM IMPOSED ON THE MURDER, COUPLED WITH THE CONSECUTIVE TERM IMPOSED ON THE ROBBERY, CONSTITUTES AN EXCESSIVE SENTENCE.

Defendant makes the following additional arguments pro se.

POINT I

TRIAL COURT ERRED DENYING MOTION TO SUPPRESS WHERE STATE FAILED TO MEET ITS BURDEN AND COURT FAILED TO FIND FACTS THAT WARRANTLESS SEIZURE OF PERSONAL POSSESSION WAS BASED UPON PROBABLE CAUSE OR AN EXCEPTION TO THE WARRANT REQUIREMENT WHERE SEIZURE VIOLATED THE 4TH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 7 OF THE N.J. CONSTITUTION.

POINT II

TRIAL COURT ERRED IN DENYING MOTION TO SUPPRESS WHERE WARRANTLESS SEIZURE OF PERSONAL POSSESSIONS EXCEEDED SCOPE OF CONSENT ALLEGEDLY GIVEN AND ABSENT PROBABLE CAUSE VIOLATED THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 7 OF THE N.J. CONSTITUTION.

POINT III

TRIAL COURT ERRED DENYING PRO-SE "BRADY" VIOLATION MOTION WHERE PROSECUTION FAILED TO DISCLOSE EVIDENCE, EVIDENCE WAS FAVORABLE TO DEFENSE, AND EVIDENCE WAS MATERIAL IN VIOLATION OF THE DUE PROCESS CLAUSE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT IV

INADMISSIBLE HEARSAY TESTIMONY THAT A NON-TESTIFYING DECLARANT HAD IMPLICATED DEFENDANT IN CRIME VIOLATED DEFENDANT['S] CONFRONTATION RIGHTS OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION AND DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW.)

I.

The record demonstrates that, in the afternoon of August 7, 2000, defendant opportunistically entered the home of an eighty-five-year-old female family friend whom defendant regarded as his grandmother and stole items from her purse, including an ATM card. The woman discovered the theft in progress and threatened to call the police. Defendant thereupon attempted to strangle her with a telephone cord found under the victim's bed. When it appeared to him that his attempt had been unsuccessful, defendant found a knife in the kitchen, returned upstairs to the victim's bedroom, and cut her throat. Later, he used the victim's ATM card on three occasions to obtain cash from local banks.

When shown a videotape of one of the transactions, defendant's mother identified the distinctively-marked shirt worn by the user of the ATM card as like one belonging to defendant and consented to showing the shirt to the police. Soon thereafter, the police went to the home of defendant and his family. They were met by defendant's mother, who showed them the shirt, laid out on a bed. The police then took the shirt without objection by the mother or any other family member. The shirt was subsequently identified by defendant as his.

The record additionally reflects that friends observed defendant shortly after the crime with blood on his clothes and shoes. Defendant claimed at trial to having been jumped by a group of people seeking the drugs and money that he was carrying at the time. However, he denied that, as the result of the incident, he had been cut or that either his clothes or shoes were bloodstained.

On August 10, 2000, defendant turned himself in to the Trenton police. He was interrogated by Detective Edgar Rios, and he gave both an informal and a transcribed confession. However, after Detective Rios had taken the second confession by use of questions and answers recorded by Rios on a computer, a lawyer retained by defendant's family appeared and advised defendant not to speak further with the police. As a result, the typewritten confession was neither reviewed nor signed by defendant.

II.

On appeal, defendant claims through counsel that we should reverse his conviction because he was denied his right to self-representation. We disagree, determining after a thorough review of the record in the matter that no unequivocal request for self-representation was made and that defendant's equivocal comment regarding self-representation, made at the commencement of trial, was untimely.

It is well settled that the Sixth Amendment grants a defendant the right to represent himself in a criminal proceeding. State v. Gallagher, 274 N.J. Super. 285, 294 (App. Div. 1994) (citing Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562, 574 (1975)). "[W]hile a defendant has the constitutional right to dispense with counsel, there is a strong presumption against waiver." State v. Buhl, 269 N.J. Super. 344, 360 (App. Div.), certif. denied, 135 N.J. 468 (1994). Moreover, "the right to self-representation is not absolute. . . . A defendant may invoke the right to self-representation only if he makes a knowing and voluntary waiver of counsel." State v. Reddish, 181 N.J. 553, 587 (2004). Of significance to the present case, "[t]he need for an unequivocal request for self-representation by a defendant is a necessary prerequisite to the determination that the defendant is making a knowing and intelligent waiver of the right to counsel." State v. Figueroa, 186 N.J. 589, 593 n.1 (2006) (emphasis supplied). Furthermore,

like any other request for substitution of an attorney, a defendant's decision to dismiss his lawyer and represent himself must be exercised in a timely fashion. The right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress.

[Buhl, supra, 269 N.J. Super. at 362.]

The record reflects that at a pre-trial hearing held on May 23, 2005, one day before jury selection, a discussion occurred regarding the parties' witness lists. During its course, defendant expressed dissatisfaction regarding the extent of the investigation undertaken by his present counsel, who had been appointed to represent defendant approximately two months earlier. After several interruptions by defendant as the State's witness list was being discussed, he was admonished by the trial judge, who stated that defendant could discuss his concerns privately with his attorney at a later time, but that he could not "just . . . keep shouting on." The following exchange then occurred:

THE DEFENDANT: What if I want to represent myself, can I do that?

THE COURT: Well, it is a little late for that.

THE DEFENDANT: It's a little late for that.

THE COURT: A little late for that.

THE DEFENDANT: I mean, this guy is not getting nothing done in my case.

Can I go back, man?

At this point, defendant was taken from the courtroom.

Although defendant continued to express dissatisfaction with his counsel on succeeding days, he did not raise the possibility of self-representation again at any point during the trial. However, at sentencing, defendant stated in connection with a request that he be removed from the courtroom during the sentencing proceedings:

I tried to speak before the fact and represent myself; you wouldn't let me do that. Then I ain't get no representation from counsel, and he didn't put on no defense for me. I asked you to represent myself before the fact because he was just put on my case less than no more than sixty days before my trial started. You all wouldn't do that.

We do not regard defendant's one-time, tentative inquiry regarding the possibility of self-representation on the eve of trial to be either timely or unequivocal, as precedent requires. As a consequence, we reject defendant's Sixth Amendment claim.

III.

At trial, Detective Rios testified regarding the unreviewed and unsigned confession to robbery and murder given by defendant following his surrender to the police. First, the prosecutor questioned Rios generally regarding the content of the statement. In response, Rios stated that he needed to read from the statement "[t]o recall exactly what [he] was told." He was permitted to do so, without objection. As a consequence, defendant's answers to Rios's questions, as contained in the statement, were presented to the jury. After a lunch break, the prosecutor distributed copies of the statement to the jury and then elicited its contents by reading the questions himself and asking Rios to read defendant's responses. The copies of the statement were then collected from the jury. However, at the commencement of deliberations, the statement, having been admitted into evidence at the conclusion of the jury charge, was provided to the jury for its consideration. No objection to the introduction of the statement into evidence or its use by the prosecution was made. During the course of the charge, the trial judge gave the jury the standard instruction regarding its determination of whether the statement was actually made by the defendant and, if made, whether the statement or any portion of it was credible.

On appeal, defendant argues that the trial judge committed plain error when she allowed his statement to be admitted in evidence and twice circulated to the jury.

N.J.R.E. 803(c)(5) permits the recollection of a witness to be refreshed by a writing made at the time when the fact recorded actually occurred. When the witness does not remember part or all of the contents of the writing, the rule permits "the portion the witness does not remember [to be] read into evidence." However, it "shall not be introduced as an exhibit over objection." In the context of transcribed statements made to the police, the Supreme Court had held that

until the statement is signed or its correctness acknowledged in some fashion by the defendant, it constitutes merely a memorandum of what was said and is inadmissible in evidence. In such cases, the State is limited to the oral testimony of witnesses who were present when the statement was made. They may, for the purposes of refreshing their recollections, where necessary, refer to notes made at the time by them, or under their supervision.

[State v. Cleveland, 6 N.J. 316, 329 (1951).]

In the present case, defendant did not fully acknowledge the correctness of his statement. At a Miranda hearing conducted on the day before trial, defendant denied giving any statement to the police. In his direct testimony at trial, defendant likewise denied making a statement. In cross-examination, defendant admitted to having acknowledged to Detective Rios that the distinctively-marked shirt pictured on the bank video was his; that he was taken to various banks by his girlfriend, where he used the victim's MAC card; and that, after the time that the murder was alleged to have occurred, he had been picked up from a friend's house by his "brother," Kumba. However, defendant denied having confessed to the murder and he gave an alternative explanation for what the State claimed to have been the robbery. Compare State v. Lanzo, 44 N.J. 560, 565 (1965) (affirming admission of unsigned statement when defendant admitted the truth of the second part and, although he denied the truth of the first part, defense counsel insisted that if any of the statement were introduced in evidence, the statement should be admitted in its entirety); State v. Monahan, 16 N.J. 83, 90 (1954) (finding the defendant's statement admissible when it was signed by him in three places and acknowledged by him in writing to be accurate), cert. denied, 348 U.S. 889, 75 S. Ct. 210, 99 L. Ed. 698 (1954).

[W]here the transcribed statement is not read by or to the accused and he does not sign it or otherwise acknowledge its correctness, the oral testimony of the witness and not the transcript is the only admissible evidence. The statement itself is not admissible.

[Id. at 90.]

In Cleveland, a capital murder case in which the Court observed that "the evidence adduced point[ed] strongly to guilt," 6 N.J. at 320, the Court nonetheless held that the admission of the defendant's statement into evidence, over objection, was prejudicial error. In doing so, it acknowledged that, on retrial, the person who took the statement could testify to "substantially everything contained in the written statement," id. at 331, but it observed:

the writing shears the balance of the oral testimony in the case of the weight it would otherwise have and is erroneous because:

"A thing in writing carries, particularly with the layman, a weight of its own. When the jury withdrew they took with them their recollection of the defendant's testimony and their recollection of Jacobson's testimony and, in addition, this exhibit, which not only was a thing in writing but because of that fact was a present and constant reminder to the jury of its contents. It may have been the fulcrum upon which the verdict turned." Springer v. Labow, 108 N.J.L. 68 (Sup Ct. 1931).

[Cleveland, supra, 6 N.J. at 331.]

Similar concerns regarding the persuasive power of written indictments, introduced into evidence in error over the objection of defense counsel, were expressed by Justice Brennan in State v. Costa, 11 N.J. 239, 252 (1953) and later by Justice Jacobs in State v. Orecchio, 16 N.J. 125, 133 (1954).

We recognize that it is possible to distinguish the holding of Cleveland because it was rendered in a capital matter. Indeed, the Court appeared to take that fact into account when, after discussing at length precedent holding an unsigned and unacknowledged confession to be inadmissible, it stated that "we are not willing, in the case sub judice, where the death penalty is one of the issues to be decided by the jury, to depart from what we consider the well entrenched and justified rule." Cleveland, supra, 6 N.J. at 331. However, the use of the rationale of Cleveland by the Supreme Court in connection with the admissibility of indictments in the non-capital cases that we have cited persuades us that the severity of the penalty to be imposed is not a determinant of admissibility.

We note as well that in the present case, unlike the precedent we have discussed, no objection was made to the introduction of the transcribed confession at the time of trial. As a consequence, the existence of error must be judged under a plain error standard under principles set forth in State v. Macon, 57 N.J. 325 (1971); i.e., we must determine whether the erroneous introduction of defendant's statement in evidence led to a possibility of an unjust verdict. Id. at 335-36. The fact that N.J.R.E. 803(c)(5) permits the introduction into evidence of past recollection recorded when no objection to that introduction is raised suggests that the error is inconsequential. However, we are unwilling to thus conclude in a criminal case in which a significant liberty interest is at stake particularly in light of the precedent that we have discussed. A mistake by a trial attorney in failing to object to inadmissible evidence should not constitute a vehicle for possible injustice.

While we regard the evidence in this case against the defendant to be strong, we are mindful of the fact that the jury experienced significant difficulty in reaching a verdict, requiring extensive read-backs of testimony and at one point stating that a unanimous verdict could not be reached. In these circumstances, we cannot discern with confidence what influence the written confession, shown to the jury at trial and given to them for use in their deliberations, might have had. Accordingly, we reverse defendant's conviction and remand the matter for a new trial.

IV.

In light of our decision to reverse defendant's conviction, we decline to reach defendant's sentencing arguments.

We regard defendant's challenge to the judge's denial of his motion to suppress evidence consisting of the shirt admittedly owned by defendant, disclosed to the police by defendant's mother, and taken without objection by the police after being permitted to enter the family's home, to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). This argument was fully and adequately addressed by the trial judge at the conclusion of the pre-trial suppression hearing.

Similarly, we reject defendant's argument that an alleged Brady violation required a new suppression hearing in the case. In that regard, defendant notes that the only witness to testify at the suppression hearing, Detective James McMillan, stated there that defendant's mother had alerted the police to the fact that defendant possessed a shirt like that depicted on the bank video. However, in a report that had not been produced to defendant at the time of the suppression hearing, but was later produced, Detective McMillan stated that the information had been provided by defendant's sister. We find that minor inconsistency to be insufficient to require a new suppression hearing, particularly in light of the fact that both defendant's sister and his mother were interviewed by the police and shown the bank video. Who made the incriminating admission is, in the circumstances of this case, immaterial.

 
As a final matter, we reject defendant's argument that a violation of State v. Bankston, 63 N.J. 263 (1973) occurred when Detective Rios testified in answer to a question as to why he wished to speak to defendant: "Well, his name came up in the investigation, and also because of the video." Such a limited response does not violate Bankston's precepts by introducing testimony in the absence of an opportunity for cross-examination.

Reversed.

Defendant's case had previously been designated as a capital one, and he had been assigned two attorneys specializing in such cases.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We note that in State v. Vandever, 314 N.J. Super. 124 (App. Div. 1998), on interlocutory appeal, a panel of this court reversed a determination by a motion judge to bar the transcript of a surreptitiously tape recorded confession, holding the confession to be admissible. However, the panel stated that the matter was remanded "without prejudice to the trial court revisiting the subject with respect to any claim that the content of the tape recorded interrogation is inaccurate or contradicts what was not recorded." Id. at 129. We deem that qualification, in essence, to require evidence that the defendant acknowledged the correctness of what was set forth in the transcript prior to admission.

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).

(continued)

(continued)

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A-1924-06T4

October 26, 2009