Opinion
DOCKET NO. A-5817-08T4
09-13-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAUN CLIFTON-SHORT, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Hillary Horton, Special Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Horton, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0985.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).
Hillary Horton, Special Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Horton, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendant was convicted of purposeful or knowing murder and related charges. On the murder conviction, he was sentenced to life imprisonment, with a thirty-year parole disqualifier, and on the other charges, to a consecutive fifty-two-year term. Defendant appeals both the convictions and sentences imposed. We affirm the convictions and sentences imposed, except we remand for correction of the Judgment of Conviction (JOC).
We note the verdict sheet and transcript of the publication of the verdict by the court clerk indicate the jury found defendant guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4. However, based upon the sentencing transcript, the JOC the appellate briefs, oral argument, and supplemental briefing, as ordered by the court, it is apparent that defendant was convicted of first-degree purposeful or knowing murder. N.J.S.A. 2C:11-3a(1).
I.
In the early morning hours of January 31, 2007, a murder occurred at a gas station in Orange, New Jersey. No one witnessed the incident, and the station's manager discovered the murdered employee inside an office in the back of the station's outside kiosk. The victim was found covered in blood, and the medical examiner on the scene concluded the victim died of "[m]ultiple blunt force trauma to the head" in a homicide.
One day later, defendant and another man were arrested in connection with a separate incident, a robbery at a Dunkin' Donuts. After two individuals were injured there, surveillance tape showed two persons, later identified as defendant and his brother, walking toward the Dunkin' Donuts, then running away from it a few minutes later. During the course of their subsequent arrest, police found a hammer in the pocket of one of the two men.
Homicide investigator Christine Witkowski, who had been called to the murder scene two nights earlier, questioned defendant about the Dunkin' Donuts robbery and also questioned him about the gas station incident. Defendant told Witkowski that he and his brother went to the gas station where the murder occurred on February 1, 2007. He claimed the attendant repeatedly told him and his brother to leave the station or else he would call the police. When they did not immediately leave, defendant claimed the attendant took a hammer and swung it at him, narrowly missing. Defendant then took the hammer from the attendant, striking him until the attendant fell to the floor. The attendant got up, and a more lengthy physical confrontation ensued, with the parties hitting each other multiple times. The attendant eventually was knocked unconscious. He and his brother then left the gas station with the hammer in their possession.
Defendant admitted he wore blue jeans, a blue jacket, a brown hooded sweatshirt, and sneakers on the night of the murder. Upon obtaining a search warrant and searching defendant's house, Witkowski found and collected each of those items. While defendant did not dispute that he made the incriminating statements to Witkowski, he testified at trial that he confessed to the Dunkin' Donuts robbery because he was coerced and threatened by the police officers during his interrogation. He also claimed Witkowski told him he would go to jail whether he testified or not.
Defendant moved to suppress the statement he provided to police, claiming it was the product of coercion. The court denied the motion, finding defendant knowingly and voluntarily waived his Miranda rights. Defendant also filed a pro se motion to suppress evidence obtained when he was stopped, along with his brother, on February 1, 2007. He argued he was illegally stopped and searched, and therefore all evidence obtained during the search and seizure should be suppressed. The court denied this motion.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Both at the time the court conducted the Miranda hearing and just before the testimonial stage of the trial commenced, defendant sought removal of his trial counsel. The court granted defendant's second motion to represent himself, but also appointed trial counsel as standby counsel. The court subsequently denied defendant's motions for a substitute standby counsel and for a continuance to allow him time to prepare his case.
In addition to the suppression motions and the motions to relieve his attorney, defendant filed additional motions: (1) to sever the two cases, (2) for a bill of particulars, (3) for a continuance to seek funding for a DNA expert, (4) to adjourn the trial date, (5) to dismiss the indictment for failure to provide an arraignment, (6) for Grand Jury voting record, (7) to suppress crime scene and autopsy reports, (8) to dismiss Counts Eight and Nine of the indictment, and (9) to suppress an out-of-court identification. During trial, the court denied or rendered moot each of these motions. It specifically denied the motion to sever the two cases because "the two crimes [we]re similar in character and they [we]re connected together by numerous factors."
The jury found defendant guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) (Count Three); first- degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Six); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Seven); first-degree robbery, N.J.S.A. 2C:15-1 (Count Eight); second-degree aggravated assault, N.J.S.A. 2C:12-1(b), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Nine); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Ten); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Eleven); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Twelve).
At sentencing, the court imposed a life sentence with a thirty-year parole disqualifier on the first-degree murder conviction and the first degree felony murder conviction, (Counts Three and Four), and a consecutive fifty-two-year sentence with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree robbery convictions (Counts Two and Eight), the second-degree aggravated assault conviction, and the first-degree attempted murder conviction (Counts Nine and Ten).
The court dismissed Count One, second-degree conspiracy to commit robbery, as merged into Count Two; Count Five, fourth-degree unlawful possession of a weapon, as merged into Count Six, third-degree possession of a weapon for an unlawful purpose; Count Seven, second-degree conspiracy to commit robbery, as merged into Count Eight, first-degree robbery; and Count Eleven, fourth-degree unlawful possession of a weapon, as merged into Count Twelve, third-degree possession of a weapon for an unlawful purpose. The four-year sentence imposed on Count Six, third-degree possession of a weapon for an unlawful purpose, and the four-year sentence imposed on Count Twelve, third-degree possession of a weapon for an unlawful purpose, were to be served concurrently with the sentences imposed on Counts Two, Three and Four.
II.
On appeal, defendant initially raised the following arguments:
POINT I
THE SELF-DEFENSE CHARGE DENIED MR. CLIFTON-SHORT DUE PROCESS OF LAW BECAUSE IT INEXPLICABLY FAILED TO INFORM THE JURY OF THE STATE'S BURDEN TO DISPROVE SELF-DEFENSE. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, [¶] 1, 9 AND 10 (NOT RAISED BELOW).
POINT II
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER,
DESPITE EVIDENCE OF SELF-DEFENSE, WAS PLAIN ERROR. MOREOVER, DEFENSE COUNSEL'S FAILURE TO REQUEST A CHARGE ON PASSION/PROVOCATION MANSLAUGHTER CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).
A. FAILURE TO CHARGE THE JURY ON PASSION/PROVOCATION MANSLAUGHTER WAS PLAIN ERROR.POINT III
B. DEFENSE COUNSEL'S FAILURE TO REQUEST A CHARGE ON PASSION/PROVOCATION MANSLAUGHTER CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S REFUSAL TO SEVER COUNTS SEVEN THROUGH TWELVE FROM THE REMAINING COUNTS IN THE INDICTMENT VIOLATED MR. CLIFTON-SHORT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, [¶] 1, 9, AND 10.
POINT IV
THE JUDGE ABUSED HIS DISCRETION WHEN HE APPOINTED DEFENSE COUNSEL AS STANDBY, AND THEN PROCEEDED WITH THE TRIAL IN THE ABSENCE OF MR. CLIFTON-SHORT. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, [¶] 10.
POINT V
THE LIFE TERM IMPOSED ON THE MURDER, COUPLED WITH THE CONSECUTIVE TERMS TOTALLING 52 YEARS' IMPRISONMENT IMPOSED ON THE ROBBERY AND CRIMINAL ATTEMPT CHARGES, CONSTITUTES AN EXCESSIVE SENTENCE.
Defendant also submitted a pro se supplemental letter brief, in which he raised additional arguments:
DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO HOLD A SUPPRESSION HEARING IN ORDER TO DEVELOP AN
EVIDENTIAL BASIS UPON WHICH TO RELY WHEN RULING ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (NOT RAISED BELOW).
a. IT WAS PLAIN ERROR FOR THE LOWER COURT TO FOREGO HOLDING A FULL SUPPRESSION HEARING, WITH TESTIMONY FROM THE DETECTIVE, PRIOR TO MAKING A FINAL DETERMINATION AS TO THE ADMISSIBILITY OR INADMISSIBILITY OF THE EVIDENCE IN QUESTION.
b. THE TRIAL COURT FURTHER VIOLATED DEFENDANT'S STATE AND FEDERAL RIGHTS TO DUE PROCESS OF LAW WHEN EVIDENCE WAS ADMITTED ABSENT A HEARING TO DETERMINE ADMISSIBILITY OR LACK THEREOF.
c. DEFENDANT'S PREJUDICE IS CUMULATIVE.
At oral argument, we directed the State to file a supplemental brief, in response to defendant's pro se brief, addressing whether defendant's pretrial motion to suppress evidence required an evidentiary hearing, and our inquiry of whether the conviction for felony murder should merge with the conviction for murder and whether the court imposed an illegal sentence by failing to impose a NERA period of parole ineligibility on the murder conviction, and defendant to file a reply.
--------
III.
On appeal from a jury verdict, we must "give deference to the [jury]'s factual findings, . . . as such findings should not be disturbed 'when supported by adequate, substantial and credible evidence.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We review questions of law de novo. Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002).
Defendant first argues the self-defense charge denied him due process of law because it failed to inform the jury of the State's burden to prove self-defense. New Jersey's self-defense statute provides, in pertinent part, that:
a. [T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.There are, however, limitations placed on the use of force:
[N.J.S.A. 2C:3-4.]
(2) The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or[N.J.S.A. 2C:3-4.]
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take . . . [.]
"[E]rroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990). The self-defense justification, as well as all other offenses and defenses, must be explained to the jury through the court's jury charge. Ibid. Correct charges "are essential for a fair trial. A charge is a road map to guide the jury, and without an appropriate charge, a jury can take a wrong turn in its deliberations. Thus, the court must explain the controlling legal principles and the questions the jury is to decide." Ibid. (citations omitted).
We have stated that "if any evidence raising the issue of self-defense is admitted in either the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts." State v. Burks, 208 N.J. Super. 595, 604 (App. Div. 1986). "Thus, as self-defense is an affirmative defense not requiring its establishment by a defendant . . . , a defendant may raise self-defense as an issue if there is evidence supporting it." Id. at 606.
Defendant claims that it was plain error for the trial court to fail to instruct the jury about the State's burden of proof to disprove self-defense once the defense is raised. The court neglected to read the final part of the jury charge:
[I]t is the State's burden to disprove self-defense. Because a defendant can claim self-defense only if all four of the criteria . . . exist, the defense is unavailable if the State disproves any of the elements beyond a reasonable doubt. If the State carries this burden, you should disallow the defense. If the State does not carry this burden, then you must allow the claim and acquit the defendant.
The court's error in failing to include this aspect of the self-defense charge, however, was not capable of producing an unjust result. R. 2:10-2. The court instructed the jurors that defendant had no burden of proof, it was the State's burden to prove the charges with proof beyond a reasonable doubt, and that the State's burden never shifted. Although defendant, in his testimony, denied being present at the gas station, in his statement to police, he not only admitted striking the victim with the hammer, but also told police the victim asked him to leave before swinging the hammer at him and that he easily wrestled the hammer away from the victim. Thus, the evidence showed defendant had the opportunity to retreat in safety but instead grabbed the hammer from the victim, and the confrontation followed.
IV.
Defendant next argues that the court's failure to instruct the jury on passion/provocation manslaughter was plain error, and defense counsel's failure to request a passion/provocation manslaughter charge constituted ineffective assistance of counsel. Under New Jersey law, "[c]riminal homicide constitutes manslaughter when: (1) It is committed recklessly; or (2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4. "Passion/provocation manslaughter has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990).
The Supreme Court has noted "where the facts clearly indicate the possibility that the crime was manslaughter based upon either provocation/passion or imperfect self-defense, we see no reason why the trial judge should not also be obliged, even without any request being made, so to charge." State v. Powell, 84 N.J. 305, 318 (1980), certif. denied, 87 N.J. 332 (1981). The rationale behind the requirement is that "the public interest may require that a particular charge be given to the jury, where the facts rationally support such a charge, even though neither the defense nor the prosecution has requested it[.]" State v. Choice, 98 N.J. 295, 298-99 (1985).
Here, the court instructed the jury on the lesser-included charges of aggravated manslaughter and reckless manslaughter but did not include a passion/provocation instruction. Defense counsel agreed with the State, and the court agreed that the jury should only be provided with the aggravated and reckless manslaughter charges. We consider the claimed error under the plain error standard, R. 2:11-2, and conclude no such error occurred. Defendant may not agree to a particular charge and then claim error because the court failed to instruct the jury on the very charge defendant agreed should not be given. State v. Nero, 195 N.J. 397, 407 (2008). Such invited error cannot provide a basis for reversal. State v. Corsaro, 107 N.J. 339, 345 (1987).
Insofar as defendant's argument that his counsel's failure at trial to request a passion/provocation manslaughter charge constituted ineffective assistance of counsel, such a claim is more appropriate for post-conviction relief, as its resolution requires the court to consider matters outside of the record. State v. Preciose, 129 N.J. 451, 459-60 (1992).
V.
Defendant also asserts that his rights to due process of law and a fair trial were violated when the trial court refused to sever Counts One through Six of the indictment, which related to the murder, from the remaining counts related to the Dunkin' Donuts robbery.
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
[R. 3:7-6.]
When "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2(b). Additionally, if there is a legitimate possibility of prejudice to a defendant, the court should grant a severance of the offenses. State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).
The essence of defendant's argument is that he did not want evidence of the Dunkin' Donuts robbery introduced at his murder trial. "A key factor in determining whether prejudice exists from joinder of multiple offenses is whether the evidence of these other acts would be admissible in separate trials" under N.J.R.E. 403(b). State v. Moore, 113 N.J. 239, 274 (1988). In considering whether the two incidents should have been severed, the trial court properly analyzed the issues pursuant to the four factors set forth in State v. Cofield, 127 N.J. 328, 338 (1992):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
The evidence of the Dunkin' Donuts robbery was admissible pursuant to N.J.R.E. 404(b) to show common scheme, identity, and intent. There was evidence that defendant not only had the hammer but also used it in a threatening manner in the Dunkin' Donuts robbery. This evidence is relevant to rebut the claim that he used the hammer in the killing only in self-defense and had no intention to rob the gas station that night. In State v. Williams, 190 N.J. 114, 125 (2007), the court held that a greater breadth of evidence should be admitted when an individual's state of mind is at issue, and "conduct that occurs after the charged offense circumstantially may support inferences about a defendant's state of mind." The Dunkin' Donuts robbery, which occurred after the murder, is relevant to show defendant's state of mind surrounding the series of events giving rise to the indictment.
The two crimes were close in time, within a day or two of each other, and also similar in kind, given the use of a hammer in both incidents. Additionally, the evidence of the Dunkin' Donuts robbery was clear and convincing, as defendant confessed upon being caught, and the surveillance tape confirmed that defendant and his brother were at the scene near the time of the robbery.
Further, because severance of the two cases would not result in exclusion of evidence of the other crimes, no greater prejudice results from joinder than from severance. Moreover, the probative vale of admitting the other crime evidence is not outweighed by prejudice. Thus, defendant's constitutional rights to due process of law and a fair trial were not violated when the trial court refused to sever the counts relating to the murder from the counts relating to the Dunkin' Donuts robbery.
VI.
Defendant next argues the court abused its discretion when it (1) appointed defense counsel as standby counsel after defendant moved to represent himself pro se, and (2) proceeded with the trial after defendant refused to return to court following a recess.
"The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562, 572 (1975). "Although not stated in the Amendment in so many words, the right to self-representation -- to make one's own defense personally -- is thus necessarily implied by the structure of the Amendment." Ibid.
Because of the importance of trial counsel, the Court has "imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial." State v. Crisafi, 128 N.J. 499, 511 (1992). A defendant must knowingly and intelligently waive his right to counsel for it to be valid. Ibid. "To ensure that a waiver of counsel is knowing and intelligent, the 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." Id. at 511.
However, "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." Faretta, supra, 422 U.S. at 834, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581 n.46. "[A] State may -- even over objection by the accused -- appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Ibid. "Standby counsel may be appointed to provide the defendant with advice and assistance and to facilitate communications with the court," but there are constitutional limits. State v. Gallagher, 274 N.J. Super. 285, 296 (App. Div. 1994). "First, the pro se defendant is entitled to preserve actual control over the case he chooses to present, and second, participation by standby counsel should not be allowed to destroy the jury's perception that the accused is representing himself." Id. at 297.
"In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way." McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S. Ct. 944, 950, 79 L. Ed. 2d 122, 130 (1984).
Rule 3:16(b), entitled "Presence of the Defendant at Trial or Post-conviction Proceedings" states, in relevant part:
The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence . . . .
With these legal principles informing our analysis, we consider that defendant's objections to his appointed counsel's conduct and attempts to represent himself pro se are well-documented. He first told the trial judge at his September 16, 2008, suppression hearing that his attorney was unwilling to help him and he wanted a new attorney. The judge at this time denied defendant's request. Then, on November 18, 2008, during jury selection, defendant moved to represent himself pro se because he felt his attorney was ineffective. The court responded that defendant's Sixth Amendment right to waive counsel and proceed pro se was "discretionary. You do not have the right to waive counsel. I have to decide whether or not you knowingly and intelligently can do so."
The court then held a special hearing to determine whether defendant could knowingly and intelligently waive his right to counsel. Defendant alleged his attorney failed to provide discovery, file motions, and to propose any defense other than to accept the state's plea offer. The court determined that despite defendant demonstrating that he was intelligent and had vast knowledge of his case, he could not adequately represent himself because it was a complex trial for murder, attempted murder, and robbery that included DNA evidence and medical examiner testimony.
Defendant, nonetheless, renewed his application to proceed pro se. The court granted defendant's motion but also appointed his assigned trial counsel as standby counsel. Defendant, not pleased with having the same attorney as standby counsel, absented himself from the trial before the jury was sworn in, and he was tried in absentia.
Citing McKaskle, defendant urges that a pro se defendant "must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial." McKaskle, supra, 465 U.S. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131. Defendant had every opportunity to "control the organization and content of his own defense," ibid., but chose, however, to exclude himself from the proceedings.
"A pro se defendant has no absolute right to bar "standby counsel's unsolicited participation." State v. DuBois, 189 N.J. 454, 466 (2007). Additionally, a defendant does not automatically have the right to require new counsel be assigned simply because there is disagreement in trial strategy, as "[a]ssigned counsel is not required to dance to the prisoner's tune." State v. Coon, 314 N.J. Super. 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998). Here, the trial court expressed the belief that defendant was simply attempting to delay the proceedings with his actions, and we see no reason to disturb that finding based upon our review of the record.
Additionally, continuing the trial without defendant present and refusing to grant any continuance once he was granted a right to represent himself was not reversible error. When the refusal to grant a continuance is at issue, "[o]nly when the factual record demonstrates that the judge abused his discretion will [the appellate court] reverse." State v. Matarama, 306 N.J. Super. 6, 14 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998). Here, defendant had four months to move to represent himself pro se, but he waited until the eve of trial before filing his motion. Additionally, he expressly waived his right to be present at the trial. Thus, the trial court acted within its discretion when it permitted defendant to represent himself pro se while appointing defense counsel as standby, then proceeded with the trial without defendant after he refused to attend the trial.
VII.
With the exception of the necessity to remand to the trial court to correct the JOC, which we discuss below, the remaining arguments advanced, including those raised in defendant's supplemental brief, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
We reject defendant's contention that the sentence imposed was excessive and, in particular, that the court erred in imposing consecutive sentences. The judge considered factors articulated by the Court in State v. Yarbough, 100 N.J. 627, 543-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Specifically, the court noted the offenses occurred on two different dates — although only one day apart — the victims were different, and separate acts of violence occurred. While these factors did not result in the grant of defendant's severance motion, additional considerations militated against severance. The decision to impose consecutive sentences is left to the court's sound discretion and we find the trial court did not abuse its discretion in this instance. State v. Molina, 168 N.J. 436, 442-43.
VIII.
During oral argument, we posed the question whether defendant's conviction for felony murder should merge with his conviction for purposeful or knowing murder. The State concedes the felony murder conviction merges with the purposeful or knowing murder conviction. However, the conviction for the underlying felony to the murder survives. See State v. Rose, 206 N.J. 141, 152 (2011); State v Gore, 205 N.J. 363, 374 (2011); State v. Brown, 138 N.J. 481, 560-61 (1994).
The trial court imposed a sentence of life imprisonment with a thirty-year period of parole ineligibility on the first-degree murder conviction. We also agree, as urged by the State, that a conviction for knowing or purposeful murder requires imposition of an eighty-five percent period of parole ineligibility under NERA. Under NERA, a sentence of life imprisonment "shall be deemed to be 75 years[,]" N.J.S.A. 2C:43-7.2(b), and an eighty-five percent period of parole ineligibility on a seventy-five-year sentence is sixty-three years. Failure to impose the NERA period of parole ineligibility creates an illegal sentence, which may be corrected at any time. State v. Meekins, 180 N.J. 321, 322 (2004).
To summarize, we affirm the convictions and sentence imposed, but we remand to the trial court to correct the JOC to reflect merger of the murder and felony murder convictions and to also enter the correct NERA period of parole ineligibility. We do not retain jurisdiction.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
_______________
CLERK OF THE APPELLATE DIVISION