State v. Long

• Decision Date: 24 March 1987
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph LONG, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 269

216 N.J.Super. 269

523 A.2d 672

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

Superior Court of New Jersey Appellate Division.

Argued Feb. 25, 1987.

Decided March 24, 1987.

John David Healy, Designated Counsel, Little Falls, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; John David Healy, of counsel and on the brief).

Barbara H. Dupre, Asst. Prosecutor, for plaintiff-respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Barbara H. Dupre and Betsy Phillips, Asst. Prosecutors, of counsel and on the brief).

Before Judges DREIER, SHEBELL and STERN.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Defendant appeals his jury conviction of attempted theft ( N.J.S.A. 2C:20-2b(2)(d)) as a lesser-included offense of the armed robbery for which he was indicted. He urges the following:

Point One. By denying defendant's application to challenge the grand and petite [sic ] jury selection system in Atlantic County, the New Jersey courts have violated his federal and state constitutional rights to due process, equal protection and trial by an impartial jury drawn from a fair cross-section of the community.

Point Two. The trial court erred in failing to charge the issue of entrapment.

Point Three. Defendant did not receive effective assistance of counsel.

Point Four. The trial court erred in failing to grant defendant's motion for acquittal.

Point Five. The defendant's conviction must be vacated for all other errors at the trial.

On November 5, 1984, an Atlantic County grand jury indicted defendant and a codefendant for conspiracy to commit robbery ( N.J.S.A. 2C:5-2) (count one); two counts of possession of a weapon (rock and brush) under circumstances not manifestly appropriate for lawful use ( N.J.S.A. 2C:39-5d) (counts two and four); two counts of possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4) (counts three and five); and armed robbery ( N.J.S.A. 2C:15-1) (count six).

Within the time permitted by R. 3:6-2 defendant attempted to file a pro se pleading entitled "Omnibus Pretrial Motions for Relief" in which he alleged, among other things, that the grand jury was not lawfully impaneled. The County Clerk marked the papers "received" on December 3, 1984, but did not file them because of the assignment judge's policy of not accepting pro se motions where a defendant is represented by counsel. Defendant apparently was not notified that his motion was not filed. Defendant and codefendant were initially represented by the same attorney of the Office of the Public Defender.

On January 28, 1985, the day prior to trial, counsel renewed defendant's motion challenging the jury selection process. The trial judge reserved decision and on the first day of trial the court ruled that defendant's challenge was not timely filed and that in any event the decision in State v. Ronald Long, 204 N.J.Super. 469, 499 A.2d 264 (Law Div.1985), was not to be applied retroactively. The court also ruled that the petit jury panel was such that defendant would receive a fair trial.

Defendant's motions for dismissal and/or acquittal, made both at the close of the State's case and after all of the testimony, were denied. At the close of all the evidence, the State moved to dismiss the conspiracy count conditioned on the court charging accomplice liability, which the court agreed to do. Defendant was acquitted of all charges except attempted theft. Defendant's motion for a new trial, which contended the verdict was against the weight of the evidence and challenged the propriety of charging the jury on the lesser-included offense of attempted theft, was denied. The court denied the State's motion to sentence defendant as a persistent offender, and sentenced him to a five year indeterminate term at Yardville.

On October 26, 1984 at approximately 10:40 p.m. a member of the Atlantic City Police Department, acting as a robbery decoy, had a few dollar bills tucked in his shirt pocket and was sitting on a brick wall, 50 feet from the boardwalk, in a parking lot where there was an abandoned parking shed. Plainclothes detectives were hidden in the shed and a canine officer with his dog waited in a darkened area of the parking lot; an unmarked police car completed the decoy scene.

According to the State's case, defendant and codefendant walked down the street from the boardwalk on the same side as the decoy. They stopped, looked around and asked the officer if he wanted to smoke a joint. He ignored them but they asked several times until he said no. After several more attempts to cajole him into smoking, the two took the officer by his arms and started walking him back into the parking lot; however, the officer resisted.

Defendant allegedly picked up a piece of concrete and put it on the hood of the car. The codefendant took it, placed it on the ground in front of the car, approached the decoy and grabbed his tie; the decoy pulled away. The perpetrators returned to the street and looked around. Codefendant next picked up a large brush and defendant took the rock. The two attempted to strike the officer in the head as they demanded his money. The officer fell to the ground and his backups responded and lifted the two off. The assailants broke free and ran but were captured in short order. Defense counsel's cross-examination of the decoy sought to undermine his credibility by demonstrating many discrepancies.

The codefendant was the sole defense witness. He testified that he did not know defendant prior to the night in question. They had met in a park and spent several hours drinking and talking. As they walked down the street a man called over a question which codefendant could not hear, so he crossed the street to find out what he wanted. The man appeared intoxicated and asked for cocaine. Codefendant said he did not have any. He asked the man if he could have the beer which was on the car hood but was told no as it was his last.

Defendant wanted to leave but codefendant wanted to stay. Codefendant asserted that he tried to sell the officer some fake hash and that after he was unsuccessful he grabbed the officer's tie and reached for the money sticking out of his pocket. The decoy allegedly grabbed his arm and pulled him to the ground. Defendant walked over as the other police came and both were arrested.

Defendant, who is black, argues that his Sixth Amendment right to a representative jury has been violated by the "invidious discrimination in jury panel selection...." He asserts that his pro se motion challenging the array should have been deemed timely and that State v. Ronald Long, 204 N.J.Super. 469, 499 A.2d 264 (Law Div.1985), should be applied retroactively despite its holding that the decision is prospective only.

The trial judge noted on the record that 12 to 15% of the petit jury array were black and that defendant did not use all of his peremptory challenges. The judge denied defendant's motion for several reasons. As to the timeliness aspect of defendant's challenge he asserted:

... when persons are represented by Counsel, ... it is not proper for pro se motions to be filed by defendants; ... it must be filed by Counsel. If Counsel--if the defendant-client is not satisfied with his or her attorney with respect to willingness or an agreement to file such a motion, then other Counsel should be sought promptly by that defendant.

Since defendant's motion through counsel was made more than 30 days after the arraignment and the court had rejected defendant's otherwise timely pro se challenge, it ruled that the motion was out of time. The court then quoted from State v. Ronald Long, supra, concerning its prospective application, indicated agreement, and held that "this Petit Jury array has a composition, which will allow this defendant a fair trial."

R. 3:6-2 requires a motion challenging the grand jury to be made within 30 days of the entry of the plea or the service of the complaint, whichever is later, "or within such further time as the court permits." In Long, the court likewise held that a challenge to the petit jury should be made within the 30 day limit unless the court extends the time for good cause shown. 204 N.J.Super. at 482-483, 499 A.2d 264. Here, defendant's pro se motion was "received" within seven days of the plea and counsel's formal motion was made within 63 days of the entry of the plea.

The pro se attempt to file the motion should have been honored under these circumstances. Hybrid representation, i.e., pro se representation and that by counsel, is left to the court's discretion. State v. McCleary, 149 N.J.Super. 77, 79-80, 373 A.2d 400 (App.Div.), certif. den. 75 N.J. 26, 379 A.2d 257 (1977). "The subject is one relating to the function of the trial judge to conduct an orderly trial--a matter traditionally left to his discretionary judgment." Id. at 80, 373 A.2d 400. It is apparent that "[s]uch joint action is to be avoided wherever possible." State v. Pratts, 145 N.J.Super 79, 89, 366 A.2d 1327 (App.Div.1975), aff'd 71 N.J. 399, 365 A.2d 928 (1976). Where defendant moves to dismiss assigned counsel, he may file a pro se merits brief. State v. Smith, 43 N.J. 67, 72-73, 202 A.2d 669 (1964), cert. den. 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed.2d 706, reh'g den. 380 U.S. 938, 85 S.Ct. 945, 13 L.Ed.2d 826 (1965).

We deem a blanket direction to the clerk that no pro se motions are to be filed where a defendant is represented by counsel to be unacceptable. Such an absolute ban leaves no opportunity for the exercise of judicial discretion necessary to dispense justice and afford due process in individual cases. At a minimum defendant and his counsel should have been advised of the clerk's action. Here, although the public defender may have entered a plea for defendant, he was only set forth on the docket sheet as representing codefendant. Defendant tried to explain to the trial judge that the public defender...