State v. Cole

• Decision Date: 24 October 1985
• Citation: 499 A.2d 1030,204 N.J.Super. 618
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James COLE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 618

204 N.J.Super. 618

499 A.2d 1030

STATE of New Jersey, Plaintiff-Respondent, v. James COLE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 11, 1985.

Decided Oct. 24, 1985.

Thomas S. Smith, Acting Public Defender of New Jersey, for defendant-appellant (Gail M. Lambert, designated counsel, Newark, of counsel and on brief).

Irwin I. Kimmelman, Atty. Gen. of New Jersey, for plaintiff-respondent (James R. Wronko, Deputy Atty. Gen., of counsel and on brief).

Before Judges O'BRIEN and SIMPSON.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Defendant appeals from his conviction of receiving stolen property in violation of N.J.S.A. 2C:20-7 a upon which he was sentenced to a term of five years and assessed an appropriate penalty payable to the Violent Crimes Compensation Board. We affirm.

On July 31, 1983, defendant and June Callahan, wife of defendant's then-employer, entered into a written agreement ¹ under which Mrs. Callahan loaned her motor vehicle to defendant for a period of two weeks while she was on vacation. The agreement restricted use of the vehicle to Pinellas County, in the State of Florida, although it was the intention of the parties that defendant use the vehicle to commute to work and, according to defendant, he resided in another county. It is clear that defendant was not given permission to remove the vehicle from the State of Florida. Thereafter, defendant was found in possession of the vehicle in New Jersey on October 3, 1983. The vehicle displayed the same Florida license plate which had been issued to Mrs. Callahan who had reported her vehicle stolen when defendant failed to return it to her as required by the agreement.

On this appeal, defendant raises the following appellate arguments:

POINT I THE DEFENDANT DID NOT HAVE A FAIR OPPORTUNITY TO REVIEW THE DISCOVERY MATERIALS AND SHOULD HAVE BEEN GRANTED A CONTINUANCE.

POINT II THE DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL GUARANTEED HIM UNDER THE FEDERAL AND STATE CONSTITUTIONS.

POINT III THE PROOFS SUBMITTED AND THE REASONABLE INFERENCES WHICH CAN BE DRAWN THEREFROM FAIL TO SHOW MORE THAN CIVIL CONVERSION.

We first address defendant's second point. Defendant was indicted on November 17, 1983 and arraigned on November 28, 1983. A representative of the public defender's office appeared for defendant at the arraignment and received a copy of the discovery. At his arraignment, defendant stated that he had submitted a motion for the assignment of counsel through the court. Thereafter, defendant refused to complete the form 5A, required by the public defender to ascertain defendant's eligibility for representation. We are told that defendant based his refusal to complete the form 5A on constitutional grounds, but nothing has been argued in support of that contention.

On the day of trial, January 31, 1984, extensive colloquy ensued between the trial judge and defendant concerning representation by counsel. At that time, defendant stated:

Your Honor, I read the form, the form as to what you're talking about, and it specifically states that if a representative from the Public Defender's Office was to help me as guidance or whatnot, that that person would have the right to use any strategies or any ways of law that I would deem right or wrong, you know, and they would waive my rights thereto.

At that time, defendant read the following from a form:

... an indigent defendant is not to be unfairly treated.

He has the opinion [sic ] of being represented by the office of the Public Defender, not receiving all of the services and facilities provided by the Public Defender's Office.

If he elects not to accept our representation, but to waive counsel and proceed pro se, then he must understand that he is voluntarily relinquishing the benefit that goes with such representation.

The case is cited is State v. Docking [sic ], and under such circumstances, he may have the assistance of a legal advisor in the courtroom, but beyond that he cannot expect resources of the office of the Public Defender to be at his command.

The public defender appointed counsel to appear at trial as legal advisor for defendant. Defendant told the court "I just cite those cases, your Honor, and I will agree to what you said that's on the record. I will accept the legal advisor." ² Thereafter, defendant waived trial by jury and a bench trial ensued during the course of which defendant conducted his defense pro se, but occasionally conferred with the assigned legal advisor. The trial judge found defendant guilty.

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court said:

The constitutional right of an accused to be represented by Counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is at stake--is without Counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to Counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. [304 U.S. at 465, 58 S.Ct. at 1023, 82 L.Ed. at 1467.]

Perfunctory questioning is not sufficient. This is true even when the trial judge strongly suspects that defendant's requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial. United States v. Welty, 674 F.2d 185 (3d Cir.1982). The trial judge has the responsibility of insuring that any choice of self representation is made knowingly and intelligently, with an awareness of the dangers and disadvantages inherent in defending oneself. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 582 (1975). To be valid, a defendant's waiver "must be made with apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof and all other facts essential to a broad understanding of the whole matter." Von Moltke v Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948).

The discussion between the trial judge and defendant concerned defendant's refusal to execute the form 5A, as a result of which the public defender would not represent him. Although defendant attempted to create the impression that the judge was insisting upon him representing himself, the trial judge repeatedly disavowed this and pointed out that another judge, probably the criminal assignment judge, had made arrangements for the public defender "to have an attorney from their office represent you, from the standpoint of merely giving you legal advice and guidance as to the legal aspect of your case, but not to represent you." Yet it does not appear from the record that the trial judge advised defendant of the statutory offenses included within the charges nor the range of allowable punishment thereunder. However, defendant does not deny that the vehicle was in his possession, but rather contends that his retention of Mrs. Callahan's vehicle beyond the time in which their contract required its return was but a breach of contract and not a criminal act.

The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1468. The presentence report reveals that defendant was 55 years of age at the time of trial and had a long and serious prior criminal record which began when he was a juvenile in 1940 and continued throughout his adult life. He has served substantial time in prison on a variety of offenses including crimes involving thefts.

Eligibility for the services of the public defender must be determined on the basis of the need of the defendant. See N.J.S.A. 2A:158A-14; see also State v. Cantalupo, 187 N.J.Super. 113, 121, 453 A.2d 913 (App.Div.1982) (a case cited by defendant during the course of his colloquy with the trial judge concerning representation). Thus, it is necessary to fill out and sign a form 5A so that the public defender can make a determination of eligibility as required by the statute. Yet, defendant refused to execute the form 5A. Defendant acknowledged his understanding that a decision to waive counsel and proceed pro se must be voluntarily made by him. Therefore, the only question presented is whether defendant intelligently waived his right to counsel since the trial judge did not specifically outline the statutory offenses included within the charges against defendant, the range of allowable punishments thereunder, and possible defenses and circumstances in mitigation.

Normally, "[a] judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered." Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948). However, in this case, in light of defendant's background, experience and familiarity with the criminal law, we conclude that his was a voluntary, competent and intelligent waiver of counsel. We further note that his cross-examination of the witnesses was reasonably competent. Furthermore, he explained his decision not to testify:

I didn't take the stand, your Honor, in view of the fact that I'm a convicted felon.

I didn't want to go into that, but I can say that I didn't leave the State of Florida and I didn't leave with the truck with intent to steal.

Defendant's possession of the vehicle was...