State v. Blazas, A-0705-10T3; Appellate Division; opinion by Espinosa, J.A.D.; decided and approved for publication August 26, 2013. Before Judges Graves, Espinosa and Guadagno. On appeal from the Law Division, Middlesex County, Indictment No. 08-04-00640. DDS No. 14-2-1111 [31 pp.]

Defendant was convicted of offenses arising from the robbery of a convenience store on Dec. 12, 2007. The following day, Prafulcha Patel, an employee of the store, identified a photograph of defendant at the Sayreville police station. Patel also identified defendant at trial. On Dec. 14, 2007, defendant's ex-fiancée, Jennifer McHugh, gave a statement to the police regarding a telephone call from defendant on the night of the robbery. McHugh said defendant told her he had done a "caper" at the "Indian store." Later that day, defendant was arrested.

Defendant was indicted and charged with first-degree armed robbery, third-degree unlawful possession of a weapon (a handgun), second-degree possession of a weapon (a handgun) for unlawful purposes, fourth-degree aggravated assault and third-degree theft. In a separate indictment, defendant was charged with second-degree certain persons not to have weapons.

Defendant filed several pretrial motions, three of which are relevant to the appeal. The first two motions concern defendant's request to represent himself. The third motion concerned defendant's allegations that the state substantially interfered with his ability to interview witnesses. In that motion, defendant contended that the state had improperly interfered with his right to prepare a defense and supported his argument with two reports prepared by a defense investigator, Justin Kurland. Kurland stated that, after he placed a telephone call to McHugh, he received a call from Det. Anderson. Anderson "proceeded to tell [Kurland] that he was not permitted to call Ms. McHugh and that he instructed Ms. McHugh not to speak with the investigator." According to the report, Anderson advised Kurland that "Ms. McHugh was a state witness and that any questions regarding Ms. McHugh had to go through the Assistant Prosecutor."

Kurland prepared a second report, regarding his telephone call to Capt. Stukowsky of the Sayreville Police Department. Kurland stated Stukowsky told him that the assistant prosecutor advised against giving a "go ahead" for interviews with five patrolmen as he "did not feel that it would necessarily be beneficial for the prosecution." Two of those patrolmen later testified at trial. Defendant argued that the state's actions were akin to witness tampering.

Defendant proceeded to trial pro se with standby counsel. The judge dismissed the aggravated-assault charge. The jury acquitted defendant of first-degree armed robbery as charged, convicting him of the lesser-included offense of second-degree robbery; convicted him of third-degree theft and acquitted him of the remaining counts.

Held: If true, the allegations that the government conduct resulted in the denial of access to the witness for interview by the defense would be proof of substantial interference with defendant's constitutionally guaranteed right of access to witnesses. Thus, the trial judge erred in failing to conduct an evidentiary hearing. In addition, the trial judge granted defendant's motion to proceed pro se without adequately advising him of the consequences of his decision.

Defendant first argues that the trial judge failed to provide him with specific information necessary for him to make a knowing and intelligent waiver of his right to counsel. The appellate panel agrees. The Supreme Court has provided explicit instructions as to how a trial court must evaluate whether a defendant has made a knowing and intelligent waiver of the right to counsel. The inquiry requires both explicit advice to the defendant and the posing of open-ended questions to ascertain his ability and understanding. The trial judge did not follow the required procedure. Based on defendant's performance at the Wade hearing and without any further advice or inquiry, the judge permitted him to represent himself at trial, with the assistance of standby counsel. Although defendant demonstrated a familiarity with the process of presenting a defense, the record fails to demonstrate that he was adequately apprised of the specific dangers and disadvantages of self-representation. Under the circumstances, the record fails to establish that defendant knowingly and voluntarily waived his right to counsel at trial.

The panel next addresses defendant's argument that his right to present a complete defense was violated by the state's alleged interference with his ability to interview prosecution witnesses.

The right to present a complete defense encompasses access to adverse witnesses during the investigation phase of the defense. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by defense counsel, and there seems to be no reason why defense counsel should not have an equal opportunity to determine, through interviews with the witnesses, what they know about the case and to what they will testify. Although no evidence was suppressed, the court found the prosecutor's advice to the witnesses suppressed "the means by which the defense could obtain evidence." Such interference with a witness' decision to grant or deny an interview to the defense deprives a defendant of his right to present a complete defense. The violation occurs when the prosecution interferes with the witness' voluntary decision to grant or refuse pretrial access.

In this case, Kurland reported that the detective prohibited him from even calling McHugh; stating he had instructed her not to speak to the investigator and that any questions to her had to go through the assistant prosecutor. If these allegations are true, it was the state, and not the witness, who made the decision to deny defendant access. The allegations here presented a genuine factual issue regarding prosecutorial interference with access that could only be resolved by an evidentiary hearing.

In his second report, Kurland stated that a police captain declined his request to interview police witnesses. A defendant's right of access to law enforcement witnesses is the same as that to lay witnesses. The officers have no duty to consent to being interviewed by the defense but the prosecution may not interfere with the law enforcement witness' free choice. Although it was not improper for the assistant prosecutor to convey his assessment that interviews would not benefit the prosecution, the decision regarding interviews had to be made by the individual officers, and not a superior officer.

The appellate panel reverses defendant's convictions and remands.

For appellant — Joseph E. Krakora, Public Defender (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). For respondent — Bruce J. Kaplan, Middlesex County Prosecutor (Joie D. Piderit, Assistant Prosecutor, on the brief).