STATE OF NEW JERSEY v. DAVID TILLMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5934-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID TILLMAN,

Defendant-Appellant.

______________________________________

October 31, 2016

 

Argued February 29, 2016 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-10-2548.

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Lerer, of counsel and on the brief).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; (Mr. Ducoat, of counsel and on the brief; Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

O'CONNOR, J.A.D.

Defendant David Tillman appeals his conviction for robbery and hindering apprehension. Defendant contends the trial court erred when it (1) declined to permit him to represent himself at trial; (2) failed to charge assault as a lesser included offense of robbery; and (3) failed to provide the jury with the definition of criminal attempt, N.J.S.A. 2C:5-1, when it charged the jury on the crime of robbery. We affirm.

I

Defendant was charged with second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b). At a pretrial status conference held on November 12, 2013, defendant complained his public defender was not representing him to the best of her ability and advised the court he wanted to retain private counsel. The court informed defendant he had until December 2, 2013, to retain private counsel and, if he failed to do so, the court would hold a hearing to determine if he were competent to represent himself.1

On December 2, 2013, the parties appeared in court. Defendant had not retained private counsel but advised he still did not want his public defender to represent him, complaining she had not filed the motions he requested and that, every time he spoke to her, "she keeps spinning off. . . . [S]he keep[s] walking out on me." He did acknowledge counsel had reviewed the discovery with him. The court scheduled the trial for March 17, 2014, commenting defendant had been provided enough time to retain private counsel, but would have until the trial date to obtain a private attorney.

The trial was rescheduled for March 25, 2014. On that date, after a jury panel had been summoned but had not yet entered the courtroom, the court addressed defendant and his counsel, who was still the same assistant public defender. The court remarked it heard "a lot of yelling and screaming from the holding cell," and asked defendant if there was a problem. Defendant replied he was having difficulty explaining "my case" to counsel. He elaborated

She's not helping me. By me trying to explain something [to her] and [her] constantly walking off on me is no help. I'm not getting the help I'm supposed to get at the end of the day for her to be my attorney. I'm not getting that help. So that's why I'm trying to work with the lady and I tell her I'm not here to argue with her or nothing. She constantly walk[s] off on me and that get[s] me roused up at the end of the day[.] I constantly get mad.

. . . .

But at the end of the day I don't want to go to trial with this lady. I'd rather represent myself now.

The court advised defendant that it was "too late," referring to defendant's comment he would rather represent himself, and announced jury selection would commence. A jury was in fact selected that day.

During the trial, the victim, T.A.2, testified he was walking down the street when defendant, who T.A. did not know, approached him from behind and asked if T.A. had a phone defendant could use. T.A. had a phone in his back pocket, the outline of which was visible on the outside of the pocket, but T.A. told defendant he did not have a phone and kept on walking. Defendant grabbed T.A.'s arm, pushed him, and asked T.A. why he lied and would not let him use his phone. T.A. told defendant he could not use his phone.

Defendant then reached into T.A.'s pocket and grabbed the tip of the phone, but T.A. was able to "snatch [defendant's] arm and grab it out. And then my phone fell back into my pocket." When T.A. grabbed defendant's arm, defendant said, "Don't make this hard, just give me the phone." T.A. refused to turn over his phone and defendant then punched T.A. in the face with a closed fist. T.A. denied saying or doing anything that provoked defendant into punching him.

T.A. punched defendant in the stomach in self-defense. Defendant responded by punching T.A. repeatedly with both hands in closed fists. Defendant eventually pushed T.A. down to the ground and continued to punch him. At one point, T.A. was able to grab onto one of defendant's legs, causing defendant to lose his balance and giving T.A. a chance to get up and run from him. As T.A. was running, a police car pulled up alongside him, and the officers asked what had happened. T.A. replied defendant had tried to rob him of his phone and pointed in the direction where T.A. had last seen him. The police drove off and, minutes later, apprehended defendant. When he was arrested, defendant gave a false name and date of birth.

Defendant testified he was never interested in taking or using T.A.'s phone. According to defendant, T.A. accidentally bumped into him on the sidewalk. Even though it was T.A. who brushed up against him, defendant said "excuse me." T.A. responded, "Suck my dick." Defendant asked T.A. to repeat what he said and T.A. replied, "Suck my dick."

Defendant believed T.A. wanted to fight, so defendant punched T.A. six or seven times in the face. T.A. responded by punching defendant two to three times in the stomach. The two continued fighting and T.A. eventually fell to the ground, where defendant punched him multiple times in the face. While on the ground, T.A. grabbed defendant's leg, at which time defendant told T.A. to get up and grabbed his shirt so T.A. would not be able to run away; however, T.A. was still able to flee. Defendant denied he repeatedly punched T.A. to subdue him so that he could take T.A.'s phone.

The jury convicted defendant of both charges, second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b). The court sentenced him to an eight-year term of imprisonment on the robbery charge, subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent four-year term of imprisonment on the hindering apprehension charge.

II

On appeal, defendant raises the following arguments for our consideration

POINT I - THE TRIAL COURT DENIED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION WHEN IT SUMMARILY IGNORED HIS REPEATED REQUESTS TO REPRESENT HIMSELF. THIS STRUCTURAL ERROR REQUIRES REVERSAL OF HIS CONVICTIONS.

POINT II - THE TRIAL COURT'S FAILURE TO CHARGE ASSAULT AS A LESSER INCLUDED OFFENSE TO ROBBERY DENIED THE DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW.

POINT III - THE TRIAL JUDGE DENIED THE DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW BY INSTRUCTING THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT.

A

In his first point, defendant contends that in the months leading to trial, he made it clear to the court he wanted to represent himself, yet the court forced him to go to trial with his assigned public defender. He argues reversal of his convictions is warranted because the court denied him the right to represent himself. We note the record reveals defendant never indicated a preference to represent himself until the day jury selection commenced. Before then, he merely voiced a preference to hire private counsel, not represent himself.

We review a court's determination on whether or not to permit a defendant to represent himself under the abuse of discretion standard. State v. DuBois, 189 N.J. 454, 475 (2007).

A defendant "possesses both the right to counsel and the right to proceed to trial without counsel." Id. at 465. The Sixth Amendment to the United States Constitution grants "criminal defendants the right to proceed without counsel when they voluntarily and intelligently elect to do so." Ibid. (citing Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 2532, 45 L. Ed. 2d 562, 572 (1975)).

When a defendant makes an "unequivocal request for self-representation," the trial court is required to question the defendant to determine the scope of his request, see State v. Figueroa, 186 N.J. 589, 593 (2006), and explain to the defendant

(1) [T]he 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 lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel.

[DuBois, supra, 189 N.J. at 467 (citing State v. Crisafi, 128 N.J. 499, 511-12 (1992)).]

If a defendant wishes to assume his own representation, the trial court must then determine if defendant's waiver of counsel is knowing and voluntary. State v. Reddish, 181 N.J. 553, 579 (2004). But even if a defendant's decision to represent himself and waive counsel is knowing and voluntary, his right to do so is not absolute. Id. at 587. A defendant's request to represent himself must be made "in a timely manner." Martinez v. Court of Appeal, 528 U.S. 152, 162, 120 S. Ct. 684, 691, 145 L. Ed. 2d 597, 607 (2000); see also State v. Harris, 384 N.J. Super 29, 57-58 (App. Div.), certif. denied, 188 N.J. 357 (2006).

In State v. Buhl, we noted

The right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress. . . . A defendant cannot be permitted to place the trial judge in the unenviable dilemma where, in managing the business of the court, he appears to be depriving the accused of his right to self-representation.

[State v. Buhl, 269 N.J. Super. 344, 362-63 (App. Div.), certif. denied, 135 N.J. 468 (1994).]

In State v. Pessolano, the defendant made his first request to represent himself after jury selection but before opening statements. State v. Pessolano, 343 N.J. Super. 464, 473 (App. Div.), certif. denied, 170 N.J. 210 (2001). We found the trial court did not abuse its discretion when it denied defendant's request. Ibid.

Here, we find the trial court did not abuse its discretion, either. Assuming defendant's request to represent himself was clear and unequivocal, it was not timely made. Defendant waited until after the jury had been summoned to make his request. The court was not obliged to and did not abuse its discretion when it declined to permit defendant to disrupt the trial with his last-minute request to represent himself.

B

Defendant next contends the court erred by failing to charge assault as a lesser included offense of robbery.3 Defendant did not request this charge at the time of trial.

The indictment charged defendant with second-degree robbery based on the allegation he "knowingly commit[ed] an act of theft upon T.A. and [i]nflict[ed] bodily injury or use[d] force upon T.A. contrary to the provisions of N.J.S.[A.] 2C:15-1(a)(1)." Defendant does not dispute he assaulted the victim, but he does contest he robbed him.

Our Supreme Court's holding in State v. Sewell, 127 N.J. 133, 147 (1992) controls the disposition of this issue. There, the Court explained that, although "second-degree robbery actually equals theft plus several elements that closely resemble simple assault, if the Legislature had intended to define the injury/force element of robbery as simple assault or its equivalent, it could have said so with equal ease." Id. at 147-48. Consequently, the Court concluded, assault is not a lesser included offense of robbery. Id. at 147. Therefore, here, the trial court did not err when it did not charge assault as a lesser-included offense of robbery.

C

Finally, defendant contends that, while the court correctly instructed the jury on the elements of robbery, it failed to charge the jury on the elements of criminal attempt, N.J.S.A. 2C:5-1(a), warranting reversal of the robbery conviction.

As defendant did not raise this issue before the trial court, the plain error rule applies. See R. 2:10-2. Under this rule, "[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." R. 2:10-2; see also State v. Ross, 218 N.J. 130, 142-43 (2014). 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).

As we outlined in State v. Carlos, the crimes of robbery and theft consist of the following elements

[Robbery is defined as] (1) theft or attempted theft; (2) intimidating or assaultive conduct consisting of (a) inflicting bodily injury upon another or (b) threatening another with or purposely putting him in fear of immediate bodily injury or (c) committing or threatening immediately to commit any crime of the first or second degree [or (d) using force upon another person]; (3) the intimidating or assaultive conduct must have occurred during the theft or attempted theft or in immediate flight after the theft or attempted theft, and (4) defendant must have acted purposely.

Theft is defined, generally, as the unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof. . . . N.J.S.A. 2C:20-3. Attempted theft is defined by combining the foregoing definition of theft with N.J.S.A. 2C:5-[1(a)]. It is an abortive effort to perpetrate a theft.

[State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982) (footnote and internal citation omitted).]

N.J.S.A. 2C:5-1(a) defines criminal attempt as follows

a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

[N.J.S.A. 2C:5-1(a).]

As succinctly stated by the Court in State v. Farrad, "a defendant can be convicted of robbery, even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." State v. Farrad, 164 N.J. 247, 258 (2000).

In support of his argument that the court erred by failing to charge the elements of criminal attempt, defendant cites one case, State v. Gonzalez, 318 N.J. Super. 527, 535-36 (App. Div.), certif. denied, 161 N.J. 148 (1999), abrogated by State v. Hill, 199 N.J. 545, 565-66 (2009). There, we held the court's failure to define attempted theft in a matter in which defendant had been convicted of robbery and felony murder was plain error. Id. at 533, 536.

In Gonzalez, to prove felony murder, the State was required to show the victim had been killed as a result of defendant's attempt to rob him. Id. at 533. However, the State failed to provide evidence of defendant's actual conduct during the commission of the alleged attempted robbery. Id. at 534. The trial court did not charge the jury on criminal attempt and, under the particular factual circumstances of that case, we determined its failure to have done so was error. Id. at 536-37.

Gonzalez is distinguishable. Here, T.A. provided evidence defendant intended to and nearly succeeded in robbing T.A. of his phone. According to T.A., defendant reached into T.A.'s pocket and grabbed the tip of his phone. T.A. foiled defendant's attempt to take his phone by grabbing defendant's arm and causing defendant to release his grip on the phone. As T.A. did so, defendant stated, "Don't make this hard, just give me the phone." The only reason defendant was unsuccessful in taking T.A.'s phone was that the victim was able to fight off defendant and get away. There is no question there was evidence defendant took a substantial step toward committing a robbery. Further, before, during, and after his attempt to take T.A.'s phone, defendant aggressively pummeled T.A. with punches.

In State v. Belliard, 415 N.J. Super. 51, 60 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011), defendant was convicted of second-degree robbery. In his appeal, the defendant argued, among other things, the trial court failed to define "attempt" for the jury. Id. at 64. However, because there was evidence the defendant had taken a substantial step toward committing a robbery, we found the court's error to be harmless. Id. at 72. Specifically, the defendant's conduct in pushing the victim down to the ground so others could rob him constituted a substantial step in the commission of the robbery. Id. at 73-74. "Therefore, while the judge's failure to charge the jury with attempt was in error, this error was not sufficient to lead the jury to a result it would not have otherwise reached." Id. at 74.

In State v. Smith, 322 N.J. Super. 385, 398-400 (App. Div.), certif. denied, 162 N.J. 489 (1999), we upheld a robbery conviction where the evidence revealed the defendant had attempted a theft but the court had not charged on criminal attempt. In part we found the error harmless because the jury had been given an instruction on attempt in connection with another offense. Id. at 400. However, we also noted the "overwhelming evidence of defendant's guilt" rendered the trial court's omission harmless, concluding there was "no doubt that the failure to define attempt [to commit theft] in the robbery charge did not prejudice defendant's rights." Ibid.

Here, given the evidence, the jury was free to credit T.A.'s testimony that defendant took a substantial step toward committing a theft or credit defendant's testimony he merely assaulted T.A. and did not take any step toward committing a theft. Clearly the jury found T.A. more credible, and thus necessarily found defendant had taken a substantial step to engage in theft. The State's evidence established compelling evidence of defendant's guilt.

Accordingly, while it was error for the trial court to have failed to have charged the jury on attempt, under the facts of this case, we perceive this error insufficient to have led the jury to a result it would not have otherwise reached. R. 2:10-2.

Affirmed.

1 We assume the court was referring to a Faretta hearing. See Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581 (1975).

2 We refer to the victim by his initials to protect his privacy.

3 N.J.S.A. 2C:15-1(a) defines robbery as follows

a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.