SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5587-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SALVATORE J. ORTISI,
Defendant-Appellant.
_________________________________________________________________
Submitted: January 22, 1998 - Decided: March
5, 1998
Before Judges Baime, Wefing and Braithwaite.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County.
Ivelisse Torres, Public Defender, attorney
for appellant (Albert D. Barnes, Designated
Counsel, of counsel and on the brief).
Peter Verniero, Attorney General, attorney
for respondent (Linda A. Rinaldi, Deputy
Attorney General, of counsel and on the
brief).
The opinion of the court was delivered by
BRAITHWAITE, J.A.D.
Following a jury trial, defendant was convicted of two
counts of terroristic threats, N.J.S.A. 2C:12-3b (counts one and
two); two counts of aggravated assault, N.J.S.A. 2C:12-1b(5)(a)
(counts three and four); and one count of resisting arrest,
N.J.S.A. 2C:29-2a(1) (count five). At sentencing, the judge
merged count five with counts three and four and imposed
concurrent probationary terms of five years with conditions,
including 364 days incarceration in the Passaic County Jail.
Defendant now appeals and contends:
POINT I
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL WHEN THE COURT REFUSED TO DIRECT
TIMELY ASSIGNMENT OF COUNSEL THROUGH THE
OFFICE OF THE PUBLIC DEFENDER OR BY PRO BONO
ASSIGNMENT.
A. Court Improperly Denied Defendant's
Continuing Motion for Assignment of
Counsel.
B. Court Improperly Ruled that the
Defendant had Waived his Right to
Counsel.
C. Court Denied Defendant Effective
Assistance of Counsel When It
Failed to Appoint Standby Counsel
in a Timely Manner. [Not Raised
Below]
POINT II
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL, A MEANINGFUL TRIAL BY JURY AND
DUE PROCESS OF LAW DURING TRIAL HELD IN HIS
ABSENCE WHEN COURT-APPOINTED STANDBY COUNSEL
FAILED TO INTERPOSE ANY DEFENSE AND WHEN THE
TRIAL COURT FAILED TO COMPEL STANDBY
COUNSEL'S ACTIVE PARTICIPATION IN THE TRIAL
[Not Raised Below]
POINT III
PROSECUTORIAL MISCONDUCT DENIED THE DEFENDANT
A FAIR TRIAL AND VIOLATED THE DEFENDANT'S
RIGHT TO DUE PROCESS AND PRIVILEGE AGAINST
SELF INCRIMINATION. [Not Raised Below]
POINT IV
COUNTS ALLEGING TERRORISTIC THREATS SHOULD
NOT HAVE BEEN SUBMITTED TO THE JURY.
[Partially Raised Below]
A. Claimed Victims Never Testified
They Even Knew That the Alleged
Threats Had Been Made.
B. Directed Verdict Should have Been
Entered on Counts Alleging
Terroristic Threats Since the
State's Evidence Conclusively
Established That There Was No
Belief in the Immediacy of the
Alleged Threats or in the
Likelihood that They Would Be
Carried Out.
POINT VI
TRIAL COURT COMMITTED PLAIN ERROR IN THE
SENTENCE IMPOSED ON THE DEFENDANT. [Not
Raised Below]
In a Supplemental Brief defendant urges:
POINT V
SEARCH SHOULD BE SUPPRESSED SINCE JUDGE WHO
ISSUED SEARCH WARRANT IMPROPERLY FAILED TO
RECUSE HIMSELF FROM ISSUING SEARCH WARRANT.
[Not Raised Below]
We reject defendant's contentions and affirm.
On September 9, 1992, Mary Guynn, an employee of the Appellate Division Clerk's office, received a telephone call from defendant who was inquiring about the status of an unrelated appeal. Guynn informed him that his brief was overdue and that the court was prepared to dismiss his case for failure to file a brief. Defendant told Guynn that when the Appellate Division dismissed his case, he was
gonna take the law into my own hands. I'm going to start serving Sal's law against all the assholes that have violated my rights and who have committed a crime against my person
. . . . I'm taking all my tapes, all the
transcripts I have and all the motion papers
that I have; I am sending those out to the
media so when Sal Ortisi starts doing all
these bad negative things which on the
surface would appear to be criminal in
nature, everybody will know why I did, what I
did . . . .
He continued:
I'm gonna go out and buy shotguns in New York
State and 38 [sic], 30's and 308's. I'm
taking the law into my own hands now. I'm
gonna start with those jackasses in the
Prosecutor's Office, Fava and Murphy and
that's who I'm gonna start with. . . . I'm
not playing by the rules anymore. The Order
is coming out next week; things are gonna
start happening the week after that.
After the conversation, Guynn reported the incident to Emille
Cox, the Appellate Division Clerk.
George Metzler, an investigator in the Passaic County
Prosecutor's Office, was informed of the incident and was
assigned to investigate. Metzler went to defendant's home, in
Wayne, with two detectives from the Wayne police department, John
Reardon and Edward Ruzicka. Defendant, who knew Metzler and
Reardon from prior encounters, called them by name when they
entered his home. Metzler told defendant that they had
information that he made a telephone threat against Prosecutors
Fava and Murphy. Defendant asked the investigators to accompany
him upstairs to his bedroom, where they could speak without his
parents hearing the conversation. In the bedroom, defendant
admitted that he made the call and the threats. Metzler told him
that if he made any more threats he would be arrested. Defendant
informed the investigators that he taped the conversation, and
asked if they would like to hear it. They agreed to hear the
tape. Defendant sat in a chair at his desk and began rummaging
through many cassette tapes in and around the desk. As he was
looking for the tape, he again threatened to get a gun and "take
care" of Fava and Murphy. Metzler then told defendant that he
was under arrest for making terroristic threats. Defendant
became upset and said that he would resist if they tried to
handcuff him. He then lunged from his chair, yelled something in
Italian, and attacked Reardon, tackling him to the bed. After
Reardon pinned back defendant's hands, defendant bit Reardon on
the left shoulder. Metzler was also injured in the scuffle.
Defendant was handcuffed. On the way out of the house, he
apologized to Reardon, saying that he "just wanted to make this
case stick." Both Reardon and Metzler received medical treatment
for their injuries.
Because defendant never produced the tape containing the
threat, Metzler applied for a search warrant, which was issued by
the Wayne Municipal Court Judge. Metzler and several other law
enforcement officials searched defendant's home and recovered the
tape containing the threat. It was played for the jury during
trial.
After many pre-trial proceedings, the trial judge ruled that
defendant had knowingly and voluntarily waived his right to
counsel and elected to proceed pro se. The judge appointed
standby counsel to assist defendant. Defendant participated in
selecting the jury, after which he expressed his satisfaction
with the panel. He also pre-marked exhibits, participated in a
motion to suppress and a hearing pursuant to State v. Driver,
38 N.J. 255 (1962). Thereafter, defendant announced that he was not
going to participate "in this mockery of justice any further."
He advised the judge that he would not make an opening or closing
statement, nor would he present any witnesses. He told the judge
that he was taking this position to protect his "right to counsel
of choice." Defendant further told the judge that the things he
had done were not done willingly, but out of necessity "because
the attorneys, the members of the New Jersey Bar that the court
has assigned to me had absolutely no regards for the Code of
Ethics of the field, of their occupation."
After advising the judge that he would not participate,
defendant said the following about his standby counsel:
For the record, I just want to indicate[,] I
want to make it clear that Mr. Soto has been
assigned to me by the Court simply to advise
and in my absence to record notes, but should
the prosecutor in my absence ask questions
that would be objectionable by the defense
normally, that Mr. Soto will not raise
objections, that he won't do anything other
than record notes for me. He won't cross-examine witnesses or anything like that.
He then left court, and did not participate in his trial.
In his first point, defendant claims that he was denied effective assistance of counsel when the judge improperly denied his motion for assignment of counsel, improperly ruled that he had waived his right to counsel, and failed to appoint standby counsel in a timely manner. We disagree.
Defendant's history with various counsel was long and
tortuous. Shortly after he was arrested, he appeared with
private counsel at a bail motion. When defendant appeared for
his arraignment in January 1993, he told the judge that he had
dismissed his private counsel because he could not afford his
services and that he intended to proceed pro se. The judge
"strongly suggested" that defendant make an application for a
public defender, then set a trial date for March 29. On March
29, defendant appeared and said he would proceed pro se. The
trial, however, was adjourned.
In December 1993, defendant appeared with John Schadegg, an
Assistant Public Defender, who advised the judge that defendant
was proceeding pro se, but that Schadegg had been assigned to
advise him. Defendant told the judge that he was familiar with
the facts and law of the case, the rules governing the courts,
and the Rules of Evidence. The judge read the indictment to him
and explained the prison term exposure on each count. Defendant
stated that he had previously represented himself in municipal
court and the Chancery Division. Additionally, he recognized
that if he took the stand "things would get tricky" and that he
would "have to separate testimony from argument."
In February 1994, defendant appeared with Schadegg,
initially claiming he was appearing pro se, but ultimately
calling Schadegg his "public defender." He also mentioned that
previously he had been represented by another Public Defender,
Peter Collier, but Collier was discharged because he did not
follow defendant's wishes.
On July 5, 1994, defendant advised the judge that he
discharged Schadegg on June 15, because Schadegg had used an
obscenity when defendant requested that he make a motion to
suppress. He then informed the judge that whether or not he
represented himself depended on the outcome of his suppression
motion. Schadegg maintained that defendant had always been pro
se and that the Public Defender's office represented him only on
that basis. Defendant told the judge that he and Schadegg had
"gone over the issues in the case on more than one occasion, I'm
telling him to do this, he's telling me no, I'm not going to do
this." At the end of the appearance, defendant told the judge
that he was releasing the Public Defender's office from
representing him and further releasing them from their status as
"legal advisers if he goes pro se at trial."
On July 15, defendant appeared pro se on a bail reduction
motion. He told the judge he still wanted to have assigned
counsel from the Public Defender's office, but he did not want
either Collier or Schadegg. The judge told him to appear on
August 1, 1994 and further stated:
Now, I will do one further thing with respect
to counsel, you're coming back here on August
1st in the afternoon, on August 1st in the
afternoon I will get and talk to the Office
of the Public Defender and see whether or not
their policy, what it is or whether they can
assign outside counsel, what they can do. If
they do not, if they will not assign other
counsel and you are unhappy with that, you
can appeal that to the Appellate Division. I
can't force them to do what they won't do.
On August 1, the judge heard defendant's motion for
assignment of counsel. He told the judge he did not want to be
represented by the Public Defender's office because it did not
recognize his "federally protected right of counsel of choice,"
or his right to a speedy trial, and assigned counsel and he
disagreed on how to handle the case. The judge told defendant
that he could not order the Public Defender's office to keep
assigning someone to defendant until he got an attorney with whom
he felt compatible. The judge ruled that since the Public
Defender's office had supplied counsel who was ready, willing and
able to represent defendant, he received what he was entitled to.
The judge advised defendant of his right to appeal the decision.
Although defendant indicated that he intended to file an
interlocutory appeal, he did not do so.
On October 3, 1994, defendant appeared pro se and requested
a "try or dismiss date," which was granted. The assigned date
was January 9, 1995.
On November 4, 1994, defendant told the judge that he had
been through three public defenders, and he wanted counsel to be
assigned from outside the Public Defender's office. A
representative of the Public Defender's office explained that
because defendant had dismissed Schadegg, he had dismissed the
entire Public Defender's office, and if he wished to have counsel
assigned to him, he had to make another application. The court
advised defendant that if he wanted counsel, he should apply that
day, as the January 9 trial date was a "try or dismiss date."
On January 9, 1995, defendant appeared pro se and told the
judge he was ready to proceed to trial. Judge Reenstra told
defendant that he had taken it upon himself, through the Public
Defender, to employ outside counsel to assist in the trial.
Defendant asked for a thirty-day postponement in order to confer
with appointed counsel, Franklin Soto. The judge denied his
request, citing the "try or dismiss order." After defendant met
with Soto, defendant asked for a ninety-day postponement in order
to allow Soto to represent him.
The judge reviewed the history of defendant's counsel
situation, and the rights of defendants to be represented by
counsel. The judge noted that defendant did not know that
standby counsel had been appointed and therefore defendant
appeared ready to proceed pro se with the trial. Given the
history of the case and defendant's failure to seek counsel from
October 10 until the date of the trial, January 9, the judge
refused to grant an adjournment. The judge reiterated that Soto
would be there throughout the trial and defendant had the right
to confer with him any time he wished.
Defendant appeared throughout jury selection, the pre-marking of exhibits, and two pre-trial motions. The judge noted
that defendant had conducted himself "competently and
expeditiously." The judge also found the defendant had
"extensive experience in conducting himself in a criminal court."
Noting that he had read the briefs and heard the arguments set
forth by defendant, the judge found defendant to be "articulate,"
"intelligent" and "knowledgeable of the law." Defendant had a
"much better than average working knowledge of the court rules,
the Rules of Evidence and criminal procedure. His points that
were raised were relevant, basically on point and his arguments
supported his cited sources." The judge concluded that defendant
was "capable of presenting his defense in a competent and
professional manner."
Defendant told the judge that he "never, never ever waived
legal representation." He further stated that he intended to
raise that as an issue on appeal. He said that he was "going
through this pro se not because I want to, because I want to get
it over with." The judge again stated his reasons for denying
defendant's request for counsel. The judge noted that
defendant's manipulation of the system was another reason to deny
his request.
After a break, defendant announced that he was not going to
participate "in this mockery of justice." He advised the court
that he was not going to make any opening or closing statements,
present any witnesses, or cross-examine any witnesses. He said
he made this decision to protect his right to counsel of his
choice. He said that the things he had done were not done
willingly, but out of necessity due to the inferior counsel
appointed to him.
Soto, the standby counsel, informed the judge that he had
advised defendant that he would not waive his right to appeal on
that issue if he stayed and participated in the trial. The judge
told defendant he was delaying the trial until 1:30 p.m. the
following afternoon to give defendant a chance to seek emergent
relief in the Appellate Division. Defendant told the judge there
was no need to delay the trial because he had no intention of
appealing. Nevertheless, the judge allowed him the opportunity
to appeal. The next day, defendant advised the judge that he
intended to stick with his decision not to participate at trial.
The judge explained, step-by-step, how the trial would proceed.
Defendant stated that he understood that Soto would take notes
but that he would not make objections or cross-examine witnesses.
The Sixth Amendment of the United States Constitution and article 1, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to counsel at trial. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense.
The New Jersey Constitution is virtually identical.
Defendants also have the right to dispense with counsel and to proceed pro se. Faretta v. California, 422 U.S. 806, 95 S.
Ct. 2525,
45 L. Ed.2d 562 (1975). 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); State v. Crisafi,
128 N.J. 499, 509 (1992). However,
because of the importance of trial counsel to the criminal
justice process, the courts must indulge in every reasonable
presumption against waiver. State v. Gallagher,
274 N.J. Super. 285, 295 (App. Div. 1994).
In Crisafi, our Supreme Court set forth the areas of inquiry
that a trial judge must explore to determine whether a defendant
has made a knowing and voluntary waiver. The defendant should be
advised of the: (1) dangers and disadvantages of self-representation; (2) nature of the charges against him, the
statutory defenses to those charges, and the possible range of
punishment; (3) technical problems he may encounter in acting as
his own counsel and of the risks he takes if the defense is
unsuccessful; (4) necessity that he conduct his defense in
accordance with the relevant rules of criminal procedure and
evidence, that a lack of knowledge of the law may impair his
ability to defend himself, and that his dual role as attorney and
accused might hamper the effectiveness of his defense; and (5)
difficulties in acting as his own counsel and the court should
specifically advise the defendant that it would be unwise not to
accept the assistance of counsel. Crisafi, supra, 128 N.J. at
510-12. "The purpose of giving a defendant an extensive warning
is to ensure that he or she understands the consequences of the
waiver," and thus, "the ultimate focus must be on the defendant's
actual understanding of the waiver of counsel," not just the
judge's strict compliance with the requirements. Id. at 512.
A defendant cannot be permitted to "manipulate the system by
wavering between assigned counsel and self-representation . . .
." Id. at 517-18. When the alternative is representation by the
Public Defender, choosing to proceed pro se constitutes a
voluntary waiver of counsel. Id. at 517. A defendant does not
enjoy an unencumbered right to counsel of his or her choice.
Ibid. A defendant also does not have a right to counsel who will
blindly follow his instructions. Ibid. A defendant may
substitute counsel for good cause, but a disagreement over trial
strategy does not rise to the level of good cause. State v.
Buhl,
269 N.J. Super. 344, 362 (App. Div.)(citations omitted),
certif. denied,
135 N.J. 468 (1994). The determination of
whether the motion for substitution of counsel should be granted
is within the discretion of the trial judge and the judge is
entitled to take into account the countervailing state interest
in proceeding on schedule. See Morris v. Slappy,
461 U.S. 1, 13,
103 S. Ct. 1610, 1617,
75 L. Ed.2d 610, 620-21 (1983).
The defendant in Crisafi is much like the defendant here.
Crisafi was experienced in court proceedings, and "fully
appreciated the risks of proceeding without counsel." Crisafi,
supra, 128 N.J. at 513. His background and experience supported
the conclusion that he knew the difficulty of trying his own
case. Ibid. He sought to manipulate the system by wavering
between assigned counsel and self-representation and "by
asserting violations of his right to counsel while rejecting
every attorney assigned to his case." Id. at 517. For these
reasons, the Court found that the defendant had knowingly and
voluntarily waived his right to counsel, despite the fact that
the judge "failed to inform defendant of the charges against him,
the sentencing alternatives, and the specific pitfalls of
proceeding pro se." Id. at 515.
To determine whether defendant knowingly and voluntarily
waived his right to counsel, the Crisafi factors must be
explored. Defendant advised the judge that he had previously
represented himself in municipal court and in the Chancery
Division. Defendant also informed the judge that he was familiar
with the court rules and the Rules of Evidence. Defendant
understood that he would have to separate testimony from argument
if he took the stand and that it could get "tricky." The judge
advised him that he would be responsible for the same conduct as
a lawyer. The judge also told him that he would "be far better
off with the assistance of a trained criminal defense attorney
than [he] would be by representing [himself]." In fact, the
judge "urge[d] him not to represent [him]self." Defendant also
told the judge that he was familiar with the adage, "A person who
represents himself has a fool for a client."
In December 1993 the judge read the charges to defendant and
explained the prison-term exposure on each count. The State
concedes that the judge did not review the statutory defenses to
the charges, but claims that the record amply demonstrates that
defendant was well aware of those defenses because disagreements
between defendant and his various assigned counsel led to their
discharge by defendant. We agree.
In 1994 Schadegg told the judge that he and defendant had
"many, many discussions about what is [sic] intelligent ways to
proceed with trial," and that he and defendant "had many
disagreements." At the outset of Soto's assistance he told the
judge that he and defendant "were not in agreement as how to
proceed in this case" and that they did not see "eye to eye on
how to handle this matter. He has a certain way that he wants
this case to go." Defendant told the judge that at one point, he
thought that perhaps he "didn't understand the defense of the
alibi" but "Mr. Soto and a few others have explained it to me."
We conclude that all of the Crisafi factors were satisfied.
Given defendant's history and familiarity with the legal system,
his admitted and demonstrated knowledge throughout the pretrial
proceedings, his responses to the various warnings given to him
about the dangers and pitfalls of representing himself, and his
continued unwillingness to work with the counsel provided to him
despite the judge's insistence that the choice was the Public
Defender's office or pro se representation, we do not believe
that the judge abused his discretion when he found that defendant
knowingly and voluntarily waived his right to counsel.
Defendant also claims that the judge improperly denied his
continuing motion for counsel outside of the Public Defender's
office. This argument is without merit. R. 2:11-3(e)(2).
Defendant was provided with three different attorneys from the
Public Defender's office, and found fault with each one. He
offers no authority for the right to be represented by someone
outside the Public Defender's office. Given that a defendant is
not entitled to counsel of his choice, nor one who will blindly
apply his trial strategy, defendant had no alternative but to
accept the attorney assigned from the Public Defender's Office or
proceed pro se. That choice did not deny him of any
constitutionally protected right. Crisafi, supra, 128 N.J. at
517.
In a point that was not raised below, defendant argues that
he was denied effective assistance of counsel when his standby
counsel was not appointed until the week before trial, and
defendant did not have the chance to confer with him until the
day of the trial. Defendant offers no authority for his
contention that counsel should have been appointed sooner.
Standby counsel is appointed for two main purposes: to act as a
"safety net" to insure that the litigant receives a fair hearing
and to allow the trial to proceed without the undue delays likely
to arise when a layperson represents his own case. United States
v. Bertoli,
994 F.2d 1002, 1018-19 (3d Cir. 1993). Neither of
these reasons requires an early appointment. Had Soto been
appointed two months earlier, he could not have done anything to
aid defendant, as he was there only to guide defendant during
trial and not to represent him. We find no merit to defendant's
argument. R. 2:11-3(e)(2).
Defendant next contends that by permitting the trial to proceed without requiring standby counsel to defend, the judge denied him effective assistance of counsel, a meaningful trial by jury, and due process of law. The State responds that defendant ordered standby counsel not to participate in the trial, and thus defendant should not be heard to complain. We conclude that defendant's contentions are without merit, R. 2:11-3(e)(2), and that his reliance on State v. Wiggins, 158 N.J. Super. 27 (App. Div. 1978), and State v. McCombs, 81 N.J. 373 (1979), is misplaced.
After defendant advised the judge that he would not be participating at trial, he said:
For the record, I just want to indicate[,] I want to make it clear that Mr. Soto has been assigned to me by the Court simply to advise and in my absence to record notes, but should the prosecutor in my absence ask questions that would be objectionable by the defense normally, that Mr. Soto will not raise objections, that he won't do anything other than record notes for me. He won't cross-examine witnesses or anything like that.
Here, unlike Wiggins and McCombs, defendant waived his right to counsel and elected to proceed pro se. Further, during his pro se representation he made certain decisions, such as voluntarily absenting himself from trial and instructing his standby counsel only to take notes. When a defendant elects to
represent himself, he cannot assert that his representation
amounts to ineffective assistance of counsel. Faretta v.
California, supra, 422 U.S. at 834 n.46,
95 S. Ct. 2525, 45 L.
Ed.
2d at 581 n.46 (1975).
Moreover, although defendant told standby counsel to only
take notes, counsel did more. He objected to the admission into
evidence of the tape containing the threat, which required a
hearing. Further, when questioned by the judge on the
admissibility of a certain exhibit, he considered the issue and
responded to the judge. Counsel also requested and obtained an
instruction that the jury not draw any adverse inference from
defendant's absence from the trial.
Defendant was repeatedly advised of his options. He
deliberately manipulated the judge trying to gain an advantage.
He persisted in absenting himself from trial when he knew he had
a right to be there, and instructed standby counsel to do nothing
on his behalf but take notes. We are satisfied that it was
defendant's intent to challenge whatever the judge did. If the
judge had ordered standby counsel to participate, defendant would
be urging that the judge's order, contradicting his instructions
was error. He cannot have it both ways. Defendant did
everything he could to make the orderly proceeding of this trial
next to impossible. He knew what he was doing when he made the
choice to proceed pro se, voluntarily absented himself from the
trial, and instructed his standby counsel not to participate. To
reward him for his manipulative behavior would encourage other
defendants to engage in similar conduct, thereby causing
disruptions in the trial process.
Although we are satisfied that defendant voluntarily waived
his right to counsel, and deliberately told standby counsel not
to participate in the trial, we must also consider the integrity
of the trial process. As we noted in Wiggins, supra,
In every trial there is more at stake
than just the interests of the accused; the
integrity of the process warrants a trial
judge's exercising his discretion to have
counsel participate in the defense even when
rejected. A criminal trial is not a private
matter; the public interest is so great that
the presence and participation of counsel,
even when opposed by the accused, is
warranted in order to vindicate the process
itself.
[Wiggins, supra, 158 N.J. Super. at 32
(quoting Mayberry v. Pennsylvania,
400 U.S. 455, 467-68;
91 S. Ct. 499,
27 L. Ed.2d 532
(1971)).]
Here, we conclude that the integrity of the trial process
was preserved. Defendant was present and participated in jury
selection and certain pre-trial proceedings. After he absented
himself, he instructed standby counsel to do nothing but take
notes. Despite that admonition, counsel objected when he
believed it was appropriate, and made requests on defendant's
behalf. This was not a long or complicated factual trial
necessitating much intervention. This was unlike Wiggins, where
counsel did nothing on defendant's behalf.
Additionally, the judge was cognizant of protecting
defendant's rights throughout the trial. At one point, the judge
objected to a question posed by the prosecutor on the basis of
relevance, and the prosecutor withdrew the question. The judge
also denied admission of evidence proffered by the State, despite
counsel's following defendant's instructions not to object to the
admission of any evidence.
Based on standby counsel's interventions, and the judge's
obvious protection of defendant's rights, we are satisfied that
the integrity of the trial process was preserved. We therefore
find no basis to conclude that defendant was denied effective
assistance of counsel.
In point III, defendant contends that he was deprived of a fair trial when the prosecutor made improper comments during his summation. After thanking the jury for their participation in the trial, the prosecutor continued:
Ladies and gentlemen, I know some of you have served on a jury before and certainly had a basis to expect how a trial would be conducted and I'm sure all the rest of you also might have an idea what you might expect this past week and I'm sure what you saw this past week did not meet to your expectations.
Now, Judge Reenstra has told you at the
very beginning and I'm sure he's going to
tell you again that a defendant, as we all
know, has a right through an attorney to
represent him and of course has a right to be
present in court to confront the witnesses
against him. That's a right the defendant
has. And if he chooses to waive that right
by instructing his attorney not to do
anything or walking out of the courtroom,
well, that's his privilege. As odd as that
may be, that's his privilege, and you're not
to hold the defendant against -- hold that
against him.
But let me just submit to you very
briefly why I think the defendant conducted
himself this way. I know you've heard the
evidence and I know when you go back in the
jury room you're going to weigh that evidence
And return a verdict that you feel is right.
And I recognize, of course, you're the jury,
you have a right to disagree with me as to
the ultimate conclusion, but just try and be
frank and candid with reasonable people. The
evidence against the defendant is absolutely
overwhelmingly [sic] and I think the
defendant decided not to be in court because
if I'm not here the State can't proceed.
And you could see how we can't allow
that, because any defendant who is guilty
beyond a reasonable doubt against whom the
evidence is overwhelming could simply say I'm
not going to conduct the defense. I'm not
even going to bother showing up. The State
can't prove me [sic] and that man will never
be held accountable for his conduct. And
clearly that's not justice.
The defendant has rights, of course.
They're very valuable, but the State has an
obligation to pursue criminal charges in a
court of law.
Defendant did not object to the summation. "Therefore, to
warrant a reversal such remarks must constitute plain error -
that is, they must so grievously affect the substantial rights of
the defendant as to convince [the court] that they possessed a
clear capacity to bring about an unjust result." State v.
Hipplewith,
33 N.J. 300, 309 (1960)(citation omitted). Counsel's
failure to make an objection creates an inference that he or she
did not find the prosecutor's remarks prejudicial. State v.
Irving,
114 N.J. 427, 444 (1989). Here, however, standby counsel
was instructed not to make any objections.
"The prosecutor is entitled to sum up the State's case
graphically and forcefully as long as his argument is confined to
facts in evidence or upon the reasonable inferences therefrom."
State v. Hill,
47 N.J. 490, 499 (1966). Particular remarks
during the summation must be evaluated in the setting of the
entire trial. State v. Johnson,
216 N.J. Super. 588, 610 (App.
Div. 1987). "Prosecutorial misconduct is not ground for reversal
of a criminal conviction unless the conduct was so egregious that
it deprived defendant of a fair trial." State v. Ramseur,
106 N.J. 123, 322 (1987) (citations omitted), cert. denied,
508 U.S. 947,
113 S. Ct. 2433,
124 L. Ed.2d 653 (1993).
Defendant first argues that the prosecutor improperly stated
his personal belief and opinion that defendant was guilty when he
said, "You're the jury, you have the right to disagree with me as
to the ultimate conclusion, but just try and be frank and candid
with reasonable people. The evidence against the defendant is
absolutely overwhelmingly [sic] and I think the defendant decided
not to be in court because if I'm not here the State can't
proceed." Defendant argues that the comments are improper under
State v. Farrell,
61 N.J. 99 (1972), and State v. Hinds,
278 N.J.
Super. 1 (App. Div. 1994), rev'd on other grounds,
143 N.J. 540
(1996).
The Supreme Court in Farrell, supra, 61 N.J. at 103, stated
that it was "error to permit the prosecutor to declare his
personal belief of a defendant's guilt in such a manner that the
jury may understand that belief to be based upon something which
the prosecutor knows outside the evidence." That sentiment was
echoed in Hinds, supra, 278 N.J. Super. at 18. Here, the
prosecutor's comments did not rise to the level prohibited in
Farrell and Hinds. The prosecutor did not intimate that he knew
defendant was guilty based on some evidence unknown to the jury.
Next, defendant asserts that certain remarks asked the jury
to draw an inference of guilt from his exercise of his right not
to be present or to conduct a defense. The prosecutor said that
defendant's non-appearance at trial could not be held against
him, but then told the jury: "Let me submit to you very briefly
why I think the defendant conducted himself this way." He then
made the above comment that the evidence was so overwhelming that
defendant chose not to be in court in the hopes that the trial
could not proceed. The prosecutor continued, saying that such
behavior could not be allowed or else
any defendant who is guilty beyond a
reasonable doubt against whom the evidence is
overwhelming could simply say I'm not going
to conduct the defense. I'm not even going
to bother showing up. The State can't prove
me and that man will never be held
accountable for his conduct [sic]. And
clearly that's not justice.
The State concedes that the prosecutor's comment was
improper, but argues that "when the prosecutor's summation as a
whole is reviewed, and considered in context with the entire
trial, there is no doubt the brief comment on defendant's absence
at the very beginning of the summation in no way diverted the
jurors' attention from a fair assessment of the evidence." The
State argues that the jury needed "some kind of explanation for
defendant's absence," and by "briefly commenting on defendant's
absence, the prosecutor was able to put to rest a juror's natural
inclination to speculate on why defendant was not present after
jury selection."
We agree with the State and conclude that any error was
harmless beyond a reasonable doubt, State v. Macon,
57 N.J. 325,
336 (1971), and was not "clearly capable of producing an unjust
result." R. 2:10-2. Perhaps the prosecutor's phraseology could
have been more clear. This brief comment at the beginning of the
prosecutor's summation, however, did not have the capacity to
prejudice the jury against defendant. Further, the judge
instructed the jury that defendant had the right to remain
silent, the right not to testify or present a defense, and
further that it could not draw any inference from defendant's
failure to participate at trial. There is nothing in this record
from which we could conclude that the jury did not follow these
instructions. State v. Manley,
54 N.J. 259, 271 (1969).
Defendant next argues that a judgment of acquittal on both terroristic threat charges should have been entered because the State failed to produce evidence that the victims actually knew the content of the threats or even that the threats had been made. We need not dwell on this point at length, but simply observe that the State's evidence was sufficient to allow the jury to draw the inference that both victims were aware of the threats made by defendant.
Here, after defendant was arrested, Metzler met with
Detective James Gannon of the Morris County Prosecutor's Office
and, at his request, gave him a photograph of defendant. Metzler
also spoke with a detective assigned to a special investigative
unit at the New Jersey State Police that investigates threats
made to judges and prosecutors throughout the State. Metzler
also testified that he "distributed photographs of Mr. Ortisi
throughout the Prosecutor's Office" "so that the staff would be
aware that if Mr. Ortisi was to come to the Prosecutor's Office
that he had threatened the prosecutor and to use extra caution."
A jury may draw an inference from a fact
whenever it is more probable than not that
the inference is true; the veracity of each
inference need not be established beyond a
reasonable doubt in order for the jury to
draw the inference. Nevertheless, the
State's right to the benefit of reasonable
inferences should not be used to shift or
lighten the burden of proof, or become a
bootstrap to reduce the State's burden of
establishing the essential elements of the
offense charged beyond a reasonable doubt.
[State v. Brown,
80 N.J. 587, 592 (1979)
(citations omitted).]
We are satisfied that the evidence would permit a jury to
infer that both victims were aware of defendant's threats. We
find it inconceivable that Metzler, Gannon, and the State Police
detective did not advise the victims of defendant's threats. We
leave for another day the issue of whether victims must be made
aware of the threat because here the inference was highly
probable and supported by the evidence.
Defendant's arguments concerning his sentence and the search warrant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed