State v. Guerin

• Decision Date: 06 February 1986
• Citation: 506 A.2d 743,208 N.J.Super. 527
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph H. GUERIN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 527

208 N.J.Super. 527

506 A.2d 743

STATE of New Jersey, Plaintiff-Respondent, v. Joseph H. GUERIN, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 10, 1985.

Decided Feb. 6, 1986.

Thomas S. Smith, Acting Public Defender, for defendant-appellant (Donald V. Sutton, Designated Counsel, of counsel and on the brief).

Irwin I. Kimmelman, Atty. Gen. of New Jersey, for plaintiff-respondent (Catherine A. Foddai, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MICHELS, GAULKIN and STERN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Joseph H. Guerin was convicted of robbery, in violation of N.J.S.A. 2A:141-1, robbery while armed in violation of N.J.S.A. 2A:151-5 and conspiracy, in violation of N.J.S.A. 2A:98-1. After the trial court denied defendant's motion for a new trial, he moved to be sentenced under the provisions of the Code of Criminal Justice. The State thereafter moved for the imposition of an extended term of imprisonment, on the ground that defendant was a persistent offender under N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(4). The trial court granted both motions, dismissed the conspiracy conviction, merged defendant's conviction for robbery into his conviction for armed robbery and committed defendant to the custody of the Commissioner of the Department of Corrections for an extended term of life imprisonment, with a 25 year period of parole ineligibility. Defendant's motion for a new trial on the ground of newly discovered evidence was denied and this appeal followed.

Defendant, who was not represented by counsel at trial, seeks a reversal of his convictions contending, among other things, that he was not competent to represent himself. The pivotal issue, therefore, is whether defendant knowingly and intelligently waived his Sixth Amendment right to counsel. The record submitted on this appeal does not reveal that the standard for an effective waiver enunciated by the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and its progeny was met. Therefore, notwithstanding the overwhelming proof of defendant's guilt, we are required to reverse his convictions and order a new trial.

On December 24, 1981, Cumberland County Jail officers informed the trial court that defendant, who was then incarcerated, "had verbalized a suicide threat and was acting in a bizarre manner within his jail cell." The court was further advised that defendant "appeared to be hallucinating." Based on this information, the trial court ordered that jail officials transport defendant to the Trenton Psychiatric Hospital, Vroom Building, for a psychiatric evaluation.

Following defendant's admission, he was examined by Dr. Porzio, a clinical psychiatrist in the Forensic Section. The doctor diagnosed defendant as having an "affective disorder, bipolar disorder, single episode, manic, with psychotic features" and a "personality disorder, antisocial type." He characterized defendant's prognosis as "guarded" and commented that defendant "require[d] continued psychiatric care and treatment and [was in] need of possibly Lithium therapy following a Lithium workup." Finally, Dr. Porzio was of the opinion that, because "[i]t [was] questionable ... whether this individual [was] capable of cooperating with his attorney in his own defense," defendant was "not capable of proceeding and [was] incompetent to stand trial at [that] time." On January 8, 1982, defendant was discharged from the hospital and returned to the Cumberland County Jail.

Relying on Dr. Porzio's report, on January 25, 1982, defendant's attorney moved to have defendant re-examined by a psychiatrist to determine his competency to stand trial. The trial court denied the motion, concluding that defendant was competent to stand trial. The trial court also denied defendant's pro se motion to conduct his own defense, in part, stating:

I have not declared you incompetent to stand trial. I declared you incompetent to represent yourself.

The trial court thereupon ordered assigned counsel to try the case, explaining:

That is one of the reasons why I felt that he should not be representing himself. He's under medication. He's competent to stand trial without any question. Competent that he knows what these proceedings are about. That's the legal standard. He is not competent in view of medication and in view of his prior mental illness and in view of his somewhat bizarre actions to handle the case as an attorney pro se. He should have competent counsel and you are qualified and you are competent and I've seen you in action and you'll do well for him. You're doing it, not him.

On January 28, 1982, defendant's attorney moved for reconsideration of both his motion to have defendant examined by a psychiatrist and defendant's pro se motion to represent himself. Alternatively, defendant's attorney moved for a stay of trial pending this motion for leave to appeal from the court's rulings of January 25, 1982. During reargument, for the first time defendant informed the trial court, his defense counsel, and the prosecutor that he had been examined by Dr. George, a psychiatrist at the guidance center in Millville, on the preceding Tuesday, at the request of a prison nurse.

The trial court thereafter telephoned Dr. George, who confirmed that he had, in fact, examined defendant and that, in his opinion, defendant was competent to stand trial. Dr. George reported to the trial court that defendant

was dressed in jail clothes, all protected, coherent most of the time. At times he was illogical, some flight of ideas are still present. There was some grandiose delusions. Appropriate mood was somewhat elated. He denied any hallucination. He was oriented to time, place and person. His memory is intact. His intellectual functioning is about average. His insight is limited. Judgement is also limited. I made a diagnosis of bipolar schizoid affective disorder.

Following this telephone conversation, the trial court sought to resolve the conflicting opinions of Dr. Porzio and Dr. George by ordering that defendant again be transported to the Trenton Psychiatric Hospital for evaluation. On January 29, 1982, Dr. Elizondo, another clinical psychiatrist at the hospital, examined defendant and found that he had "the mental capacity to cooperate with his counsel in the preparation of his defense and [that] he [was] able to stand trial." Reasoning that Dr. Elizondo's opinion confirmed the opinion of Dr. George, the trial court found defendant legally competent to stand trial. The trial court also granted defendant's pro se motion to conduct his own defense, provided that standby counsel was present at all times during the trial to assist defendant as required. The trial commenced on February 2, 1982, with defendant conducting his own defense, in the presence of standby counsel.

The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel in order to protect his fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 691 (1984); Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2557, 45 L.Ed.2d 562, 566 (1975); Gideon v. Wainwright, 372 U.S. 335, 339-340, 83 S.Ct. 792, 793-794, 9 L.Ed.2d 799, 802 (1963); Powell v. Alabama, 287 U.S. 45, 66, 53 S.Ct. 55, 63, 77 L.Ed. 158, 169 (1932); State v. Fusco, 93 N.J. 578, 583, 461 A.2d 1169 (1983); State v. Sugar, 84 N.J. 1, 15-16, 417 A.2d 474 (1980). In addition, Article 1, paragraph 10 of the New Jersey Constitution guarantees defendants in state courts the right to counsel, as well. State v. Fusco, supra, 93 N.J. at 583, 461 A.2d 1169; State v. Sugar, supra, 84 N.J. at 15-16, 417 A.2d 474. The federal guarantee of the right to counsel has been found to arise from a "recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned Counsel." Johnson v. Zerbst, supra, 304 U.S. at 462-463, 58 S.Ct. at 1022, 82 L.Ed. at 1465-1466.

The New Jersey Supreme Court has expressed similar considerations. In Rodriguez v. Rosenblatt, 58 N.J. 281, 295, 227 A.2d 216 (1971), it was stated that "[t]he importance of counsel in an accusatorial system such as ours is well recognized. If the matter has any complexities the untrained defendant is in no position to defend himself and, even where there are no complexities, his lack of legal representation may place him at a disadvantage." Consequently, since the assistance of counsel is necessary to ensure fairness and due process in criminal proceedings, a convicted defendant can not suffer imprisonment unless counsel was available to him at every "critical" stage of the adversarial process. Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411, 417-418 (1972); State v. Sugar, supra, 84 N.J. at 16, 417 A.2d 474. See also State v. McCombs, 81 N.J. 373, 408 A.2d 425 (1979).

The Sixth Amendment also guarantees a defendant the right to conduct his own defense, provided that he knowingly and intelligently waives his right to counsel and is able and willing to abide by rules of procedure and courtroom protocol. McKaskle v. Wiggins, 465 U.S. 168, 172, 174, 104 S.Ct. 944, 948, 949, 79 L.Ed.2d 122, 130 (1984); Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541. 45 L.Ed.2d at 581; Johnson v Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466. See also State v. McCombs, supra, 81 N.J. at 378, 408 A.2d 425; State v. Davis, 45 N.J. 195, 198-199, 212 A.2d 19 (1965). The court, however, has the responsibility of ensuring that a defendant's choice of self-representation is made...