State v. BuhlState v. Buhl
Following a protracted jury trial, defendant was found guilty of first degree kidnapping (
On appeal, defendant contends that (1) the trial court abused its discretion by finding good cause for continuance of the trial under the Interstate Agreement on Detainers (IAD) (
At the outset, we note that the State‘s evidence against defendant was overwhelming. The trial record shrieks of defendant‘s guilt. According to the victim, N.K., she first met defendant on the evening of August 5, 1988, at the Carousel Lounge in Long Branch, New Jersey. After buying N.K. a drink and engaging in innocuous conversation, defendant requested a ride to his home which he said was located several miles from the bar. N.K. acceded to defendant‘s request after one of her friends agreed to follow them in his automobile. According to N.K., her friendly gesture ultimately resulted in a terror-filled odyssey through New Jersey and Pennsylvania during which she was brutally beaten and repeatedly raped and sodomized.
N.K. testified that defendant initially appeared friendly and non-threatening. Pursuant to defendant‘s instructions, N.K. took a meandering course ultimately returning to the Carousel Lounge. N.K.‘s friend apparently lost interest and ceased following the victim‘s automobile. While in the parking lot, defendant briefly exited from N.K.‘s car. When N.K. attempted to close the car door, defendant‘s demeanor suddenly changed. According to N.K., defendant jumped into the automobile, placed a knife to her chest, and threatened “to cut [her] fucking heart out.” After a brief struggle, defendant gained control over the automobile. While driving, defendant repeatedly struck N.K.‘s face with his fist, telling her that he was “going to kill [her].”
The two ultimately wound up at a gasoline station off the Garden State Parkway. As the attendant approached the automobile, defendant pretended to kiss N.K. while actually biting her lips and cheeks. When N.K. attempted to escape, defendant grabbed her and threw her into the passenger seat. As the automobile pulled out of the station, N.K. managed to “scream.” Although initially stunned by these events, the attendant contacted the police. At trial, he testified that he noticed “bruises” and “marks” on N.K.‘s face.
After leaving the parking lot, the two drove to a desolate dirt road in Pennsylvania, where defendant again forced N.K. to perform oral sex. They then walked to a garbage-strewn house where they met defendant‘s nephew, David Morgan. When N.K. told Morgan that she had been kidnapped, Morgan responded by laughing. Defendant‘s other nephew, Bobby (Burl) Morgan, then appeared but he was no more helpful than his brother.
Suffice it to say that N.K.‘s nightmare continued at the Morgan residence. Defendant and David Morgan sadistically “played” with various weapons, including “guns and knives[,]” while N.K. watched in horror. Defendant preyed upon N.K.‘s fear by taunting her with a firearm. Defendant told the victim he intended to “sell” her to the Morgans so that they could “keep her.” When Bobby Morgan left the house, defendant told N.K. it was because he knew she would be killed. Later in the evening, defendant again raped N.K. vaginally.
At approximately 8:00 p.m. that evening, defendant and N.K. left the house. Sensing that her survival depended upon gaining defendant‘s confidence, N.K. ingested a small amount of “speed” and advised defendant to conceal his portion in his boot. At some
Defendant was apprehended by FBI agents when he returned to the Morgan residence more than one month after the incident. He was taken into federal custody on September 28, 1988. While awaiting trial, defendant wrote a series of letters to a fellow inmate who was soon to be released, asking him to kill N.K. so that she could not testify against him. In these letters, defendant noted that, without N.K., the prosecution had no evidence, and therefore “the dame got to go ... [and] never be found.” After apprising the inmate of N.K.‘s general schedule, defendant instructed him to “sit,” “wait” and “snatch” her. For murdering N.K., defendant promised the inmate that he would kill someone for him, noting that he would “off anybody” and “return [the favor] a thousand times if necessary.”
Prior to the prosecution in New Jersey, defendant was tried and convicted of kidnapping by transporting the victim across state lines under the Federal Kidnapping Act (
II.
Defendant first contends that the trial court erred when it granted the State‘s motion for a continuance of the trial pursuant to the IAD. The salient facts underlying this claim can be briefly summarized.
On May 7, 1990, defendant, while in federal custody at the United States Penitentiary in Marion, Illinois, requested disposition of the New Jersey detainer. This request was received by the Monmouth County Prosecutor‘s Office on May 18, 1990. On August 21, 1990, the prosecutor requested temporary custody of defendant for the week of September 10, with the trial to begin on September 24, 1990. Apparently, defendant was on trial in Pennsylvania during the summer months of 1990. In any event, after completion of the Pennsylvania proceedings, defendant was returned to the Federal Penitentiary in Illinois. Federal prison officials initially refused to release defendant to the transport service the prosecutor‘s office had retained. The record does not disclose the reason for this refusal. We note parenthetically that defendant had a lengthy history of incarceration and had attempted to escape on several occasions. It is possible that the federal authorities’ refusal to release defendant to the transport service provided by the prosecutor was somehow related to these incidents. In any event, the record is largely uninformative on this point and we find it irrelevant to our disposition of the issues raised.
Defendant was transported to New Jersey on October 5, 1990. Although less than 180 days had elapsed from the date of defendant‘s request for disposition of the charges, the prosecutor was granted a continuance on November 2, 1990. The trial was scheduled to commence in January 1991. However, defendant
Under the IAD, a defendant must be brought to trial within 180 days after he has “caused to be delivered” to the prosecutor and the court a request for final disposition of charges pending against him.
Here, we are entirely satisfied that the trial court did not abuse its discretion in finding the presence of good cause and granting a continuance. In reaching this conclusion, we recognize that the prosecutor made no attempt to gain custody of the defendant until August 21, 1990, approximately three months after receiving the demand for final disposition of the New Jersey charges. However, this delay must be considered in the context of the normally reduced trial calendar generally attendant to the summer months. In all probability, defendant would have languished in the county jail had he been transported to New Jersey at an earlier date.
Other circumstances militated in favor of granting a continuance. As we noted previously, criminal proceedings in other jurisdictions were pending against defendant when he sent his request for disposition of the New Jersey indictment. A defendant should not be able to evade or delay pending prosecution or proceedings in one state by seeking disposition of charges in another jurisdiction under the IAD. State v. Binn, 208 N.J. Super. 443, 449, 506 A.2d 67 (App.Div.), certif. denied, 104 N.J. 471, 517 A.2d 452 (1986). The IAD was designed to help persons incarcerated in other jurisdictions to secure a speedy trial in the
Beyond this, the record plainly indicates that defendant was not prepared to proceed to trial within the statutory time period. Indeed, defendant later requested an adjournment of the trial. Thus, defendant “affirmative[ly] request[ed] to be treated in a manner contrary to [the IAD]” and waived his right to have the trial commence within 180 days of his request for final disposition of the pending charges. United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979); see also Yellen v. Cooper, 828 F.2d 1471, 1474 (10th Cir.1987); Gray v. Benson, 608 F.2d 825, 827 (10th Cir.1979).
III.
We next turn to defendant‘s claim that he was denied the constitutional right to represent himself. Defendant contends that the trial court‘s inquiry into whether his waiver of the right to counsel was “knowing and intelligent” was wholly inadequate. He asserts that he should have been permitted to proceed pro se.
We commence our analysis by reviewing the applicable constitutional principles. Although the right of self-representation has deep roots in the common law, see 3 Halsbury‘s Laws of England § 1141 at 624-25 (4th ed. 1973), it was first held to be of federal constitutional dimension in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). While recognizing that “in most criminal prosecutions defendants [can] better defend with [an attorney‘s] guidance than by their own unskilled efforts,” Faretta v. California, 422 U.S. at 834, 95 S.Ct. at 2540, 45 L.Ed.2d at 581, the Court stressed that the notion of compulsory counsel was foreign to the founders of the Constitution and that “those who
A defendant can exercise the right to self-representation only by first knowingly and intelligently waiving his right to counsel. McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122, 130 (1984); Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581. We have consistently required trial judges to engage in a searching inquiry with defendants seeking to proceed pro se. See, e.g., State v. Slattery, 239 N.J. Super. 534, 547, 571 A.2d 1314 (App.Div. 1990) (requiring searching and painstaking inquiry, including legal elements of crimes and possible lesser-included offenses); State v. Kordower, 229 N.J. Super. 566, 577-79, 552 A.2d 218 (App.Div. 1989) (requiring penetrating and comprehensive inquiry when informing defendant of incarceration exposure and technical difficulties he or she might encounter in acting as his or her own attorney); State v. Lach, 213 N.J. Super. 466, 470-71, 517 A.2d 882 (App.Div. 1986) (court must explain range of allowable punishments, possible defenses and circumstances in mitigation, and dangers and disadvantages inherent in defending oneself); State v. Guerin, 208 N.J. Super. 527, 535, 506 A.2d 743 (App.Div. 1986) (court must advise defendant of advantages and disadvantages of self-representation); State v. Cole, 204 N.J. Super. 618, 624-25, 499 A.2d 1030 (App.Div. 1985) (searching inquiry should include statutory offenses included within charges, the range of allowable punishments
Because of the importance of trial counsel, our Supreme Court has “imposed the most rigorous [requirements] 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 [an attorney].” State v. Crisafi, 128 N.J. 499, 510, 608 A.2d 317 (1992) (quoting Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261, 276 (1988)). “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. 128 N.J. at 511, 608 A.2d 317 (citing United States v. Padilla, 819 F.2d 952, 957 (10th Cir.1987); United States v. McDowell, 814 F.2d 245, 251 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987)). The defendant should be informed of the technical problems he may encounter and of the risks he takes if his defense is unsuccessful. Id. 128 N.J. at 511-12, 608 A.2d 317 (citing United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982)). The court should apprise the defendant that he will be bound by procedural and evidentiary rules, and that his lack of knowledge of the law may impair his ability to defend himself. Id. 128 N.J. at 512, 608 A.2d 317 (citing McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir.1987)). The colloquy envisioned by the Court “will test the defendant‘s understanding of the implications of the waiver, and will provide [the] appellate [tribunal] with an objective basis for review.” Id. at 511, 608 A.2d 317 (citing Strozier v. Newsome, 926 F.2d 1100, 1104 (11th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991); People v. Sawyer, 57 N.Y.2d 12, 21, 453 N.Y.S.2d 418, 423, 438 N.E.2d 1133, 1138 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983)).
It is against this constitutional background that we examine defendant‘s claimed violation of Sixth Amendment rights. Defendant‘s argument must be considered within the procedural context in which it was raised in the Law Division. Because of the serious nature of the crimes charged in the indictment, defendant‘s case was assigned to a highly experienced Public Defender attorney. However, defendant was incarcerated in Trenton State Prison and it is apparent that he experienced difficulty in communicating with his lawyer. On December 14, 1990, defendant moved to dismiss his attorney and represent himself. In his accompanying affidavit, defendant expressed dissatisfaction with his lawyer‘s investigation and claimed that the attorney was “incompetent.”
A hearing on defendant‘s motion was conducted on January 22, 1991. We glean from the record that the purpose of the hearing was to determine whether defendant‘s purported waiver of his right to counsel was “knowing” and “intelligent.” Through specific inquiry with the defendant, it became apparent almost at the outset that his principal complaint pertained to his attorney‘s alleged incompetence. Defendant repeatedly expressed his mounting frustration that his case was not being given the attention
In accordance with this arrangement, defendant filed a plethora of pro se motions in addition to those submitted by his attorney. Ultimately, most of these motions were denied and the trial was scheduled to begin on February 25, 1991. On that date, defendant‘s attorney recounted his largely unsuccessful efforts to secure the attendance of various individuals who defendant suggested had relevant information. We need not describe the steps the attorney had taken. Suffice it to say that these efforts were substantial. Dissatisfied with his attorney and frustrated by the trial court‘s denial of his motions, defendant requested to dismiss his lawyer and proceed pro se. This motion was denied. A jury was then selected and the trial commenced. After demanding that the trial judge recuse himself, defendant voluntarily absented himself. The trial proceeded with the defendant being represented by his assigned attorney.
We are convinced that the trial court properly denied defendant‘s requests to represent himself. In reaching this conclusion, we recognize that the choice between proceeding with an attorney with whom the defendant disagrees or proceeding pro se may produce a valid waiver of counsel. See United States v. Grosshans, 821 F.2d 1247, 1251 (6th Cir.) (defendant who disagreed with appointed counsel‘s beliefs regarding legality of tax system not forced to proceed pro se), cert. denied, 484 U.S. 987, 108 S.Ct. 506, 98 L.Ed.2d 505 (1987); United States v. Weninger, 624 F.2d 163, 166-67 (10th Cir.) (refusal of defendant to hire counsel unless lawyer agreed with his views on invalidity of tax laws deemed knowing and intelligent waiver), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980); State v. DeWeese, 816 P.2d 1, 4 (1991) (“[w]hen an indigent defendant fails to provide the court with legitimate reasons for the assignment of substitute counsel, the court may require the defendant to either continue with current appointed counsel or to represent himself.“). So too, “[w]hen the alternative is representation by the Public Defender, choosing to proceed pro se constitutes a voluntary waiver of counsel.” State v. Crisafi, 128 N.J. at 517, 608 A.2d 317 (citing United States v. Robinson, 913 F.2d 712, 715-17 (9th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1006, 112 L.Ed.2d 1089 (1991); United States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir.1988), cert. denied sub nom. Estevez v. United States, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989)).
This much conceded, a defendant cannot “manipulate the system by wavering between assigned counsel and self-representation.” Ibid. “If a defendant has good cause for substituting counsel, the trial court should entertain a request.” Id. 128 N.J. at 518, 608 A.2d 317. However, our Supreme Court has said that “[d]isagreement over defense strategy ... does not rise to the level of good cause.” Ibid. (citing United States v. Padilla, 819 F.2d at 956 (10th Cir.1987)). Moreover, like any other request for substitution of an attorney, a defendant‘s decision to dismiss his lawyer and represent himself must be exercised in a timely fashion. The right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress. Cf. Mayberry v. Pennsylvania, 400 U.S. 455, 468, 91 S.Ct. 499, 506, 27 L.Ed.2d 532, 541-42 (1971) (Burger, J., concurring); State v. Slattery, 239 N.J. Super. at 542, 571 A.2d 1314; State v. Ferguson, 198 N.J. Super. 395, 401, 487 A.2d 730 (App.Div.), certif. denied, 101 N.J. 266, 501 A.2d 933 (1985); State v. Wiggins, 158 N.J. Super. 27, 33, 385 A.2d 318 (App.Div. 1978); State v. White, 86 N.J. Super. 410, 418-19, 207 A.2d 178 (App.Div. 1965). A criminal trial is not a “private matter.” Mayberry v. Pennsylvania, 400 U.S. at 468, 91 S.Ct. at 506, 27 L.Ed.2d at 542. In every trial there is more at stake than just the interests of the accused. Id. at 468, 91 S.Ct. at 506, 27 L.Ed.2d at 541. A defendant cannot be permitted to place the trial judge in the unenviable dilemma where, in managing the business of the court, he appears to be depriving the accused of his right to self-representation.
In an unbroken line of decisions, the federal courts have held that a request for self-representation must be made before meaningful trial proceedings have begun. See, e.g., Savage v. Estelle, 924 F.2d 1459, 1463 n. 7 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2900, 115 L.Ed.2d 1064 (1991); United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.1986); United States v. Gillis, 773 F.2d 549, 559 n. 14 (4th Cir.1985); United States v. Lorick, 753 F.2d 1295, 1298 (4th Cir.), cert. denied, 471 U.S. 1107, 105 S.Ct. 2342, 85 L.Ed.2d 857 (1985); United States v. Brown, 744 F.2d 905, 908 n. 2 (2d Cir.), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984); United States v. Denno, 348 F.2d 12, 15 (2d Cir.1965), cert. denied sub nom. Diblasi v. McMann, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966). While it has been said generally that a request to proceed pro se made before a jury is sworn should ordinarily be honored, see, e.g., United States v. Smith, 780 F.2d 810, 811 (9th Cir.1986); Pitts v. Redman, 776 F. Supp. 907, 915 (D.Del. 1991), aff‘d, 970 F.2d 899 (3d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 611, 121 L.Ed.2d 545 (1992), we believe that this proposition has been stated too broadly. The right of self-representation cannot be insisted upon in a manner that will obstruct the orderly disposition of criminal cases. A defendant desiring to exercise the right must do so with reasonable diligence.
Defendant‘s second request was made immediately before the jury was impaneled and was untimely. It is abundantly plain that the trial judge would have been required to continue the trial for a substantial period had he acceded to defendant‘s demand. The prosecutor‘s legitimate demand for stability in the scheduling of cases was properly accorded priority. We thus find no basis to disturb the trial court‘s discretionary determination.
IV.
The remaining arguments advanced by defendant‘s appellate attorney do not require extended discussion.
Defendant‘s letters to a fellow inmate requesting him to kill the victim in order to prevent her from testifying were properly admitted under Evid.R. 55 (now
Equally without merit is defendant‘s argument that the trial court erred by refusing to instruct the jury on the defense of intoxication. Where purposeful or knowing conduct is an element of a crime, evidence of voluntary intoxication is admissible to disprove the requisite mental state. State v. Cameron, 104 N.J. 42, 53, 514 A.2d 1302 (1986);
V.
We next consider the contentions advanced in defendant‘s pro se supplemental brief. We treat separately defendant‘s claim that the New Jersey prosecution was barred by double jeopardy. Defendant‘s other arguments clearly lack merit and do not require comment. R. 2:11-3(e)(2).
In January of 1989, a federal jury found defendant guilty of kidnapping by transporting the victim across state lines. Defendant was sentenced to life imprisonment. In September of 1989, a Pennsylvania jury found defendant guilty of rape, involuntary deviate sexual intercourse, and unlawful restraint. We have not been apprised of the sentences imposed on the Pennsylvania convictions.
Defendant contends that the federal conviction for kidnapping involved the same conduct as that for which he was found guilty in New Jersey. He claims that the New Jersey prosecution for kidnapping was barred by the federal and state prohibitions against double jeopardy and by the restrictions contained in
Initially, we reject defendant‘s claim that the New Jersey prosecution for kidnapping was constitutionally proscribed. The doctrine of dual sovereignty has long been accepted by the United States Supreme Court. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). This doctrine “recognizes that separate governmental jurisdictions have concurrent
More troublesome is defendant‘s contention that the New Jersey prosecution for kidnapping was barred by
The first prosecution resulted in an acquittal or in a conviction, ... and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a
substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began....
It has been said that
Application of the statutory prohibition depends initially upon whether the federal and New Jersey prosecutions are “based on the same conduct.”
Applying that definition here, it is apparent that the federal prosecution involved different conduct than that embraced in the New Jersey indictment. Under
In any event, the result would be no different even if we were to consider the prosecutions as based on the same conduct. That is true because the State and federal kidnapping statutes each “requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.”
Affirmed.