State v. Davenport, 177 N.J. 288, 300 (2003), considered McKaskle‘s articulation of the role of standby counsel. Proceeding pro se during the guilt phase of a prosecution for drug-related offenses, the defendant contended that standby counsel’s participation in a series of sidebar conferences from which the defendant was excluded violated his Faretta right. The Court disagreed, explaining that a “fact-sensitive analysis,” id. at 308, revealed that neither prong of the McKaskle limitations had been breached, id. at 303-07. As noted, the trial court may obtain standby counsel’s participation, even though the defendant does not request it, “through minimal use of standby counsel as a conduit, by sending the jury to the jury room and having the discussion in open court . . . or even through advances in courtroom technology.” Id. at 309.
B. Unlike McKaskle and Davenport, Charles Reddish’s prosecution resulted in a death sentence. Far from being a harmless oversight, an inadequate and incompetent presentation by a pro se defendant in a penalty trial unacceptably poses a risk to the state of executing a defendant whose individual character and record do not warrant the ultimate punishment. Honoring an incautious defendant’s choice to exercise his self-representation right does not mean a court must fulfill his death wish. That observation may overstate the dilemma in situations where the defendant sincerely believes that he can adequately represent himself. Yet, it is at least true, in some cases, that a well-intentioned defendant who proceeds pro se helps to execute his own death warrant.
C. The right to a fair trial in a capital proceeding is paramount to the right of self-representation, and the trial court has the responsibility to ensure that fairness. It is incumbent on a trial court, therefore, to intercede in the proceedings if it becomes apparent that the defendant’s representation of himself falls below minimal standards of acceptability.
D. Held: In accordance with the court’s duty to ensure fairness and reliability in the administration of the death penalty, whenever a trial court permits pro se representation in a capital case, whether in the guilt phase, the penalty phase, or both, it also must appoint standby counsel, who will be available and must be prepared to assist the defendant with his defense. Standby counsel may be called on at times to provide unsolicited guidance to the defendant and the trial court.
A pro se defendant’s egregious lapses in judgment may necessitate more active participation by standby counsel. For example, the failure of a pro se defendant to present mitigating evidence has constitutional ramifications. Imposing a sentence of death requires that mitigating evidence be presented to the sentencers so that they may make an individualized determination that the defendant indeed deserves death. Although a pro se defendant is entitled to maintain control over his defense strategy, waiver of the presentation of mitigating evidence is simply not subject to the defendant’s discretion. State v. Koedatich, 112 N.J. 225, 331-32 (1988) (Koedatich I). Should standby counsel become aware that defendant does not intend to present exculpatory or mitigating evidence, counsel should bring that lapse to the attention of the pro se defendant and the court in order to ensure the fairness of the proceeding.
At least one federal appellate court has concluded that standby counsel may not present mitigating evidence over the pro se defendant’s objection. See United States v. Davis, 285 F.3d 378, 385 (5th Cir.), cert. denied, 123 S.Ct. 618 (2002). However, it is difficult to square that conclusion with the Supreme Court’s mandate in Gregg v. Georgia, 96 S.Ct. 2909, 2921 (1976), and Eddings v. Oklahoma, 102 S.Ct. 869, 875 (1982), that to constitutionally impose a death sentence, the sentencing jury cannot be deprived of an opportunity to make an individualized judgment based on a fair presentation of mitigating evidence.
The trial court should not hesitate to “inform[] and repeatedly remind[] the jury that defendant [is] representing himself.” Davenport, 177 N.J. at 306. Further, if it becomes necessary, the court should consider dismissing the jury in order to confer with both the defendant and standby counsel in order to avoid affecting the jury’s perception of the defendant’s control over his defense. Should a pro se defendant solicit or acquiesce in particular modes of participation by standby counsel, that defendant will have “substantially undermine[d] later protestations that counsel interfered unacceptably.” McKaskle, 104 S.Ct. at 953.
Finally, in the event that the defendant’s conduct unmistakably prevents a fair trial, the court should order standby counsel to undertake the defense.
V. The trial court erred in admitting evidence that defendant was in custody on unrelated charges when he confessed to Rosenthal’s murder. Also, the trial court erred in its instructions on the inability of the police to locate the victim’s body. Those errors warrant reversal of the conviction.
A. As noted above, in October 1995, defendant was arrested in Burlington County for the murder of his girlfriend, and on other charges. After learning of the arrest from a television newscast, detectives from the Cherry Hill Police Department made arrangements with the Burlington County Prosecutor’s Office to interview defendant. On Oct. 11, 1995, defendant confessed to killing Rosenthal, both to the police and, later that day, in an interview with a newspaper reporter.
Defendant moved in limine to preclude the state from introducing in the guilt phase any evidence relating to his killing of Wertz, arguing that the admission of such prejudicial evidence would undermine the rationale for, and benefits of, bifurcating the guilt and sentencing phases of the trial. The state countered that the circumstances surrounding the statements, including the fact that defendant had been in custody for Wertz’s murder when he confessed to killing Rosenthal, were admissible to buttress the credibility of defendant’s confessions by placing them in context. The state wanted the jury to conclude that, as a consequence of being arrested for killing his girlfriend, defendant had “lost everything” and, with “nothing more to lose,” had no reason to lie about killing Rosenthal.
Faced with those arguments, the trial court attempted to effect a compromise. The court ruled that the circumstances of the confessions were relevant in assessing their credibility. To minimize the prejudicial impact of that other-crimes information, the court ruled that evidence of defendant’s incarceration had to be sanitized to eliminate any reference to defendant’s arrest for the murder of Wertz. Consequently, the court allowed the state to present only “evidence indicating that the defendant was in custody for an unrelated charge . . . without reference to the charge or other similar facts.”
At trial, the jury learned that defendant was in custody on unrelated charges when he told both the Cherry Hill police and reporter Knarr that he had killed Rosenthal. Additionally, the prosecutor argued during summation that because defendant was in custody, he “had reached the end of the line. He couldn’t hide from the truth any longer and he couldn’t hide the truth any longer.”
Informing the jury that he had been under arrest for another crime at the time he confessed to the Rosenthal murder resulted in prejudice that outweighed the probative value of that information. Also, the trial court erred in its instructions to the jury on this matter.
Other-crimes evidence thus necessitates a more searching inquiry than that required by N.J.R.E. 403. Under the latter rule, relevant evidence will be precluded only if the risk of undue prejudice substantially outweighs its probative value. N.J.R.E. 403(a). With respect to other-crimes evidence, however, the potential for undue prejudice need only outweigh probative value to warrant exclusion. State v. Cofield, 127 N.J. 328, 338 (1992). Furthermore, under N.J.R.E. 404(b), the party seeking to admit other-crimes evidence bears the burden of establishing that the probative value of the evidence is not outweighed by its apparent prejudice.
Here, the trial court failed to analyze evidence that defendant was in custody at the time of the statements as other-crimes evidence. As a result, it did not apply the proper analysis, as set forth in Cofield; rather, it incorrectly analyzed the issue under the more lenient N.J.R.E. 403 standard. When a trial court fails to employ the Cofield test to analyze the admissibility of other-crimes evidence, no deference is to be accorded the trial court’s decision to admit that evidence; nor is that decision entitled to be reviewed under an abuse-of-discretion standard.
In attempting a compromise by ordering the facts relating to the arrest sanitized, the court failed to account for the concomitant diminution in relevance occasioned by the removal of those details. Once the details underlying the “nothing left to lose” theory were kept from the jury, the fact that defendant confessed while in custody on an “unrelated charge” had a diminished relevance to the credibility of defendant’s statement.
Stripped of the details surrounding the arrest, the custodial nature of defendant’s confession had little relevance. The probative value of that information was outweighed by the risk that the jury would conclude that defendant had a propensity to commit bad acts and, thus, killed Rosenthal.
That conclusion becomes ineluctable when the admission of this evidence is viewed in the fuller context of other information presented at trial. In addition to hearing that defendant had been arrested on “charges unrelated to this case,” the jury heard Detective Long testify that the Cherry Hill police learned of defendant’s arrest in Burlington County through a television newscast. At another point in the trial, the jury also learned that Wertz was deceased. In combination, then, the jury knew that defendant’s girlfriend was dead and that his arrest in Burlington County was of sufficient interest to be carried on television. In view of those circumstances, the risk, if not the likelihood, that a jury would infer that defendant was in custody for another murder foreseeably outweighed the marginal probative value of the custodial nature of his confession.
Moreover, the error in admitting this evidence was compounded by the lack of a proper limiting instruction. The instruction at issue here failed to adequately guide the jury in its consideration of the evidence. The court informed the jury:
The fact that the defendant was in custody at the time of those statements [in Burlington County] may be used by you only as it relates to the giving and taking of those statements and as it relates to your consideration of the statements themselves and the circumstances surrounding those statements. You are not to speculate as to the nature of the charges in Burlington County nor are you to consider that information for any other purpose other than as it relates to defendant’s statements to the Cherry Hill detectives and to Mr. Knarr.
Although that directive addressed the permissible uses of the other-crimes evidence, it failed to explicitly caution the members against inferring from a single instance of bad conduct a propensity on behalf of defendant to commit crimes. An explicit instruction that the jury should not make any inferences about defendant’s propensity to commit crimes is an essential point to be made in the limiting instruction. On these facts � involving the risk that the jury would conclude that defendant committed another homicide � such an omission posed too great a risk that evidence of defendant’s “other crimes” influenced the jury’s verdict.
B. Defendant argues that the trial court’s jury instruction concerning the lack of a body presented an unbalanced and misleading summary of the evidence.
At issue here are the instructions concerning the inability of the state to locate Rosenthal’s body. The court instructed the jury as follows:
The disappearance of Yeda Sharon Dede Rosenthal could support the inference of suicide, natural death, accidental death, or continued life in absentia. It can also support the inference that her disappearance was the result of a criminal act that caused or resulted in her death. As to continuing life in absentia, you may[,] given the facility of worldwide travel and communications technology[,] properly take into account the unlikelihood of such event in view of the evidence you have heard regarding Ms. Rosenthal’s employment, her family relations, the failure of investigative efforts of the police, family, and friends to locate her, and any other evidence adduced during the course of the trial. []As to a cause of death other than by a criminal act, the fact that Ms. Rosenthal’s body was never found can justify an inference that her death was in fact caused by a criminal act. It is highly unlikely that a person who dies from suicide or from natural causes will successfully dispose of her own body. While such a result may be a theoretical or hypothetical possibility, it is contrary to the normal course of human affairs. Therefore, in order for you to find the defendant guilty of murder and/or felony murder, the State must prove beyond a reasonable doubt that Yeda Sharon Dede Rosenthal was the victim of a homicide and is, therefore, dead. It is not necessary for the State to produce the body of Yeda Sharon Dede Rosenthal in order to establish her death[,] provided that you are satisfied from all the evidence in the case that she was the victim of a homicide. In fact, her disappearance alone is circumstantial evidence entitled to weight equal to that of any other circumstantial evidence. The successful concealment or destruction of Ms. Rosenthal’s body does not prevent or preclude you finding defendant guilty of murder and/or felony murder so long as proof of Ms. Rosenthal’s death and Mr. Reddish’s guilt are established beyond a reasonable doubt.
