State v. Draughn

• Decision Date: 17 February 2022
• Docket Number: A-0874-19
• Court: New Jersey Superior Court – Appellate Division
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD R. DRAUGHN, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD R. DRAUGHN, Defendant-Appellant.

No. A-0874-19

Superior Court of New Jersey, Appellate Division

February 17, 2022

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 14, 2021

On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 17-02- 0242.

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

David M. Liston, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor attorney; David M. Liston, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Rothstadt, Mayer and Natali.

PER CURIAM.

During jury selection, defendant Richard R. Draughn advised the court of numerous concerns related to his appointed counsel's representation and asked for a new lawyer or in the alternative, to represent himself. The court denied his requests, as well as his application to suppress a gun he discarded and which the police recovered immediately prior to his arrest. He was convicted of simple assault, N.J.S.A. 2C:12-1(a); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). After merger, the court sentenced defendant to an aggregate eight-year term of imprisonment with four years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c).

On appeal, he challenges those convictions and his sentence arguing^[1]:

I. BECAUSE DEFENDANT WAS STOPPED WITHOUT THE REQUISITE REASONABLE SUSPICION, THE EVIDENCE IN THIS CASE MUST BE SUPPRESSED.

II. DEFENDANT'S REQUESTS TO REPRESENT HIMSELF AND FOR SUBSTITUTE COUNSEL WERE INAPPROPRIATELY DISMISSED

WITHOUT THE APPROPRIATE INQUIRY. HIS CONVICTIONS MUST BE REVERSED.

A. Introduction.

B. The Trial Court's Failure To Conduct The Appropriate Inquiry When Defendant Asked To Represent Himself Or To Even Rule On His Request Requires Reversal Of Defendant's Convictions.

C. The Trial Court's Failure To Conduct The Appropriate Inquiry When Defendant Requested New Counsel Requires Reversal Of Defendant's Convictions.

D. Conclusion.

III. THE FAILURE TO INSTRUCT THE JURY THAT IT HAD TO BE UNANIMOUS AS TO THE UNLAWFUL PURPOSE WITH WHICH DEFENDANT POSSESSED THE WEAPON OR AS TO THE ACTS THAT CONSTITUTED ASSAULT NECESSITATES REVE[RS]AL OF THOSE CONVICTIONS.

IV. DEFENDANT'S SENTENCE, OF EIGHT YEARS WITH A FOUR-YEAR PERIOD OF PAROLE INELIGIBLITY, IS EXCESSIVE FOR A PERSON WHO HAD NEVER BEEN CONVICTED OF AN INDICTABLE OFFENSE BEFORE.

Defendant also raises the following argument in his pro se supplemental brief, which we have summarized in the following point heading:

[THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN ADVERSE INFERENCE INSTRUCTION REGARDING MISSING FOOTAGE].

After considering these arguments against the record and applicable legal principles, we disagree with defendant's contention in Point I and affirm the court's pretrial determination denying defendant's motion to suppress the gun seized at the time of his arrest. We also reject defendant's argument in his pro se submission.

We agree, however, with defendant's arguments in Point II.B and conclude the court erred by dismissing defendant's request to represent himself without conducting the proper inquiry. We therefore vacate defendant's conviction and remand for a new trial. In light of our decision, we do not reach the additional arguments raised by defendant in Points II.C, III, and IV.

I.

This appeal has its genesis in a physical altercation that occurred in Perth Amboy during the evening of April 17, 2016. On that date, defendant received a call from his girlfriend informing him that her cousin's boyfriend, Carrington "C.J." Gray, "put his hands on" her, attempted to spit in the vehicle in which defendant's girlfriend and stepdaughter were seated, and drove over defendant's girlfriend's foot with a car.

Defendant's girlfriend told him they were located at 76 Market Street in Perth Amboy. Defendant arrived at that location with approximately five people and a loaded, unregistered nine-millimeter handgun. As Gray had already left the scene, defendant told his girlfriend to contact him because he "ha[d] to pay for what he did."

Gray returned and an argument ensued where defendant told Gray he was going to "knock him out, straight up." Defendant also pulled out his gun, but testified he kept it "tucked behind [his] leg" and "never . . . pointed it" at Gray.

Gray retreated into a nearby apartment building and once inside the building, punched defendant's girlfriend's cousin who accompanied him inside, which prompted defendant to run into the building and strike Gray in the face, "knock[ing] him out," with defendant and two other individuals thereafter "jump[ing] on" Gray while he was on the ground. A video of a significant portion of the fight was captured on a nearby video surveillance camera and the tape was played for the jury. The two individuals who assaulted Gray then fled the scene on their motorcycles.

Shortly after the altercation ended, Sergeant Nicholas Millroy of the Perth Amboy Police Department, who was in a marked police vehicle, was stopped by a cab driver who, in "broken English," advised him of a disturbance involving a black male. Sergeant Millroy stated he then saw two motorcycles leaving 76 Market Street at a high rate of speed and drove the short distance to that address.

Before doing so, he activated his side, or alley light, on his vehicle, but did not turn on the overhead lights. As he approached 76 Market Street, he saw defendant leaving a building while carrying a motorcycle helmet in his left hand while holding his right hand firmly along the side of his waist area. He focused the spotlight on defendant, pulled the vehicle on the other side of the road closest to him, and observed that defendant "appeared startled" when they made eye contact. He also stated that defendant immediately slowed his gait, and attempted to shield Sergeant Millroy's view by walking beside a parked vehicle.

At that point, Sergeant Millroy still had not activated his overhead lights. In addition, he did not block defendant's movements in any way with his vehicle, give him commands, or speak to him at all. Instead, he parked his vehicle, exited and walked toward defendant to "conduct a field inquiry."

Sergeant Millroy stated at that point he heard "what sounded to be a metal object hit the ground," and witnessed defendant "kick the object underneath the parked vehicle." Based on his training and experience, and the surrounding circumstances, Sergeant Millroy believed defendant had discarded a weapon. He then drew his weapon, ordered defendant to the ground, and called for backup. Officer Jose Santiago responded to Sergeant Millroy's call for backup and proceeded to handcuff and pat down defendant. Sergeant Millroy then observed the gun under the vehicle and Officer Santiago recovered it.

Once the gun was located, defendant was arrested and brought to police headquarters, where he provided a statement detailing the circumstances that led to the altercation with Gray. Defendant also admitted to possessing the gun, which he said was in his pocket as he was leaving the apartment building. He stated that upon seeing Sergeant Millroy, he "dipped behind the car [and] tossed [the gun]."

On February 24, 2017, a Middlesex grand jury charged defendant with: second-degree burglary, N.J.S.A. 2C:18-2(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); second-degree unlawful possession of a weapon; and second-degree possession of a weapon for unlawful purposes. In an order dated April 15, 2019, the court granted the State's motion to dismiss counts one, two, four, and five of the indictment leaving for trial the aggravated assault, unlawful possession of a weapon, and possession of a weapon for unlawful purposes charges.

On January 8, 2019, the court held a Miranda^[2] hearing and denied defendant's application to suppress his statements to the police, concluding the State established beyond a reasonable doubt that defendant's statements were voluntary and given after he knowingly waived his Miranda rights. At the hearing the court expressly inquired if defendant wished to testify, and he declined.

Prior to trial, defendant also unsuccessfully moved to suppress evidence. The court held a hearing at which Sergeant Millroy testified. As previously noted, he stated he proceeded to 76 Market Street after being advised by the cab driver that there was a "disturbance involving a black male" and after observing two motorcycle riders leaving the area at a high rate of speed.

He testified that he began using his alley light as he was "approaching the area" and that upon observing defendant he "zero[ed] in on him." Sergeant Millroy stated he focused on defendant for a "multitude of reasons," not simply his race, including that motorcycles had fled from the area, defendant was "exiting 76 Market in a hurried pace," and he was holding a motorcycle helmet and headed towards a motorcycle.

In denying defendant's motion to suppress, the court first found that Sergeant Millroy "was an extremely credible witness" and "accept[ed] Sargent Millroy's facts as being accurate." It found that "[a]s a matter of law, coming up the street . . . with the alley light, getting out of the car, [and] approaching [defendant] has no constitutional implications...