When defendant’s options are representation by the
Public Defender, or choosing to proceed pro se, choosing
the latter constitutes a voluntary waiver of counsel. State
v. Crisafi, supra; State v. Ortisi, supra. The choice between
proceeding with an attorney whom defendant disagrees
on trial strategy or proceeding pro se can produce a valid
waiver of counsel. State v. Crisafi 128 N.J. at 518; State
v. Coon, 314 N.J. Super. at 438; State v. McCombs, 81 N.J.
373, 378 (1979); State v. Buhl, 269 N.J. Super. at 361-
- See United States v. Grosshans, 821 F.2d 1247, 1251
(6th Cir), cert. denied 484 U.S. 987 (1987).
A pro se defendant’s right to self-representation
encompasses the right “to control the organization and
content of his own defense, to make motions, to argue
points of law, to participate in voir dire, to question
witnesses, and to address the court and the jury at
appropriate points in the trial.” At the core of the
defendant’s “Faretta right” to conduct his own defense is
the entitlement “to preserve actual control over the case
he chooses to present to the jury.” State v. Cook, 330 N.J.
Super. 395, 414-15 (App. Div. 2000), quoting McKaskle
v. Wiggins, 465 U.S. 174, 178.
Defendant’s request of self-representation must be
made clearly and unequivocally, and his request to do so
on day jury selection was beginning was not untimely,
where defendant had already filed timely written motion
seeking right to proceed pro se. Buhl v. Cooke, 233 F.3d
at 795.
Defendant is not constitutionally entitled to “hybrid
representation.” The opportunity for defendant to act as
co-counsel with his attorney may be foreclosed and
should normally be avoided. State v. Roth, 289 N.J.Super.
152, 165 (App.Div.), certif. denied 146 N.J. 68 (1996);
accord, State v. Long, 216 N.J. Super. 269, 275 (App. Div.
1987); State v. McCleary, 149 N.J. Super. 77, 78-80
(App. Div.), certif. denied 75 N.J. 26 (1977).
When a defendant validly elects to proceed through
trial pro se, the “prudent course” for the trial court to take
is to appoint “stand by counsel” for defendant. United
States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982).
Standby counsel has two purposes: to “act as a safety net
to insure defendant received a fair hearing of his claims
and to allow the trial to proceed without undue delay
likely to arise when a layperson present his [or her] own
defense.” These two purposes include, but are not
limited to, at least four functions:
- to be available if and when the accused requests
help; - to be ready to step in if defendant wishes to
terminate his own representation; - to explain and enforce the basic rules of courtroom
protocol to defendant; - to overcome routine obstacles that may hinder
effective pro se representation. See United States v. Bertoli,
994 F.2d 1002, 1018-19 (3d Cir. 1993), and cases cited
therein; State v. Ortisi, 308 N.J. Super. at 591. See also
United States v. Salemo,80 F.3d 1453, 1456 n.2 (9th
Cir.), cert. denied 519 U.S. 982 (1996).
Defendant may not use his or her right to counsel to
play “cat-and-mouse” games with the court, ”or by ruse
or stratagem fraudulently seek to have the trial judge
placed in a position where, in moving along the business
of the court, the judge appears to be arbitrarily depriving
the defendant of counsel.” Kates v. Nelson, 435 F.2d
1085, 1088-89 (9th Cir. 1970); State v. Crisafi, 128 N.J.
at 518.In a case where defendant was deliberately and
obviously doing everything in his power to “make the
orderly proceeding of ... trial next to impossible,” State.
Ortisi, supra, the Appellate Division reaffirmed what it
had said two decades earlier: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 [or her] 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.Id., 308 N.J. Super. at 593, quoting State v. Wiggins, 158
N.J. Super. 27, 32 (App. Div. 1978).II. RIGHT TO SPEEDY TRIAL
A. Constitutional Provisions“[I]n all criminal prosecutions, the accused shall
enjoy the right to a speedy ... trial....” This provision is
binding on the states through the Fourteenth
Amendment. N.J. Const. 1947 , Article I, ¶ 10; U.S.
Const., Amend VI.