                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4915-16T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ZARIK ROSE,

     Defendant-Appellant.
_____________________________

                   Submitted October 24, 2018 – Decided April 24, 2019

                   Before Judges Koblitz, Ostrer and Currier.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 06-04-
                   0377.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (David A. Gies, Designated Counsel, on the
                   briefs).

                   Charles A. Fiore, Gloucester County Prosecutor,
                   attorney for respondent (Staci L. Scheetz, Assistant
                   Prosecutor, on the brief).

                   Appellant filed pro se supplemental briefs.
      The opinion of the court was delivered by

OSTRER, J.A.D.

      In this post-conviction relief (PCR) appeal, one novel issue merits in-

depth discussion: may a defendant waive a previously asserted right to represent

himself by acquiescing in his representation by counsel. Federal courts have

addressed the issue, but our state courts have not. We conclude that a defendant,

by his or her conduct, may waive the right of self-representation. But, whether

a defendant has done so is a fact question. To conclude that a defendant has

waived an asserted right of self-representation, the evidence must clearly

demonstrate that the defendant intentionally relinquished the known right of

self-representation. We remand for an evidentiary hearing so the court can

determine whether defendant waived his right.

      The trial court also rejected multiple claims of ineffective assistance of

counsel, concluding they failed to meet the two-pronged Strickland test of non-

professional assistance and prejudice. See Strickland v. Washington, 466 U.S.

668, 687, 694 (1984). We address those below, following our discussion of the

self-representation issue, and conclude that one of those claims also warrants

exploration at an evidentiary hearing. In all other respects, we affirm the trial

court's denial of PCR.


                                                                        A-4915-16T2
                                       2
                                         I.

                                        A.

      After a 2007 trial, a jury found defendant guilty, as an accomplice, of

purposeful murder of Charles Mosley. The State's case rested largely on the

testimony of two criminal offenders. Larry Graves confessed to killing Mosley,

but testified that he did so at defendant's request, made when they were both in

jail together. Graves said he killed Mosley to prevent him from testifying

against defendant in an upcoming trial for attempted murder of Mosley. The

other witness was Salvatore Puglia, a drug dealer, who elicited statements from

defendant about the homicide in a covertly recorded conversation. We assume

the reader's familiarity with these and other underlying facts, which the Supreme

Court reviewed in detail in affirming defendant's conviction on direct appeal.

State v. Rose, 206 N.J. 141, 146-52 (2011). We focus here on defendant's

assertion of the right to represent himself.

      Defendant declared he wanted to "go pro se" after he unsuccessfully

sought to replace his assigned counsel. In a June 14, 2006 letter to Judge Walter

L. Marshall, Jr., defendant asked that his attorney "be removed from [his] case"

because the attorney had not met with him or requested information about

witnesses. Eight days later, having "not heard anything" from the court or


                                                                         A-4915-16T2
                                         3
counsel, defendant wrote again, asking the court "to appoint another attorney to

represent" him.

      At a bail review hearing on July 24, 2006 before a different judge,

defendant renewed his complaint about counsel. The judge informed defendant

that he did not have a right to choose his appointed attorney. Defendant then

asserted his right to represent himself. The court deferred a response, insisting

that defendant present his request in writing.

      The colloquy between the court and defendant was as follows:

            Mr. Rose: For the record – so it's on the record, I
            don't want [my defense counsel] on my case.

            The Court: Sir, –

            Mr. Rose: He hasn't interviewed a witness. I haven't
            had one witness interviewed. I haven't had an
            interviewer come to see me. He could have had
            people that could have cleared my name already, –

            The Court: Okay. Sir – Sir

            Mr. Rose: – and we still haven't done that. I don't
            want him on my case.

            The Court: Sir

            Mr. Rose: That's all I'm asking, your honor, that you
            remove him from my case. I'll go pro se. I'll put in a
            motion to go pro se. I'm not going to court with him
            purposely trying to sell me out.


                                                                         A-4915-16T2
                                        4
                  ....

            The Court: Okay. Let me suggest to you, sir, that you
            –

            Mr. Rose: I understand.

            The Court: Notwithstanding the application which
            you've made verbally. You've not made it in writing
            yet, which will be considered by the Court if you want
            to do that, to proceed pro se, the Court would, in any
            event, appoint an attorney to be your advisor.

            Mr. Rose: Yes, sir. Okay.

      Two days later, defendant presented his request in a letter to the judge.

The State does not dispute that defendant sent the following letter:

                  Your Honor please except this letter in Lieu of a
            formal Motion, to dismiss . . . my Defense Counsel,
            and to proceed to Trial Pro-se.

                  Your Honor on July 24, 2006, I made a Verbal
            Application before you to dismiss . . . my Defense
            Counsel, and to Proceed to Trial Pro-Se. [Defense
            counsel] said, I must make my request in writing. So
            im [sic] making my Application to the court, with a
            copy being sent to [defense counsel], to remove him
            as my Defense Counsel, and to Proceed to trial Pro-se.
            Defense Counsel has continued to ignore my request
            for Discovery, to interview witnesses, or come to my
            County Jail to meet with me, to discuss the status of
            my up coming trial.

                  So please allow this letter to act as a formal
            motion to dismiss . . . my Defense Counsel and to
            proceed to trial pro-se.

                                                                       A-4915-16T2
                                        5
      There is no record that the judge responded, or forwarded the letter to

Judge Marshall, who later presided over the trial. Defendant did not thereafter

renew his request to represent himself. In a certification supporting his PCR

petition, defendant asserted, "The Court and trial counsel failed to address my

Motion and it was my understanding that it was denied." He contended he was

entitled to a new trial because the court deprived him of his right to represent

himself.

      The PCR court denied defendant's petition without an evidentiary hearing

stating, "Petitioner chose to move forward with trial while being represented by

trial counsel, and Petitioner was convicted by the jury. Petitioner cannot now

argue that his right to self-representation was violated because he was not

pleased with the outcome of the trial."

      In his appeal, defendant contends, "The PCR Court erred where it did not

determine whether the trial court erroneously required defendant's waiver of

counsel request to be made in writing." In a pro se reply brief, defendant argues:

            Defendant Zarik Rose, clearly and unequivocally
            notified the trial court and trial counsel that he desired
            to proceed pro se, however the court refused to hold a
            Faretta hearing and refused to allow him to proceed
            pro se, thereby violating his constitutional right to
            counsel and his rights to due process of law and a fair
            trial; if the court finds this issue should have been
            raised on direct appeal, then direct appeal and PCR

                                                                         A-4915-16T2
                                          6
            counsels rendered ineffective assistance of counsel
            was ineffective [sic].

      The State argues that defendant's argument "is not cognizable via post-

conviction relief," noting that PCR is "neither a substitute for direct appeal, R.

3:22-3, nor an opportunity to relitigate cases already decided on the merits, R.

3:22-5." (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). The State also

contends defendant never clearly and unequivocally asserted the right to

represent himself. Thus, as we understand the argument, we have no cause to

reach the issue of the right's waiver.

      We review de novo the PCR court's factual findings without an evidentiary

hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no deference

to the trial court's conclusions of law. Ibid. "A defendant shall be entitled to an

evidentiary hearing" before a PCR court if he or she establishes a "prima facie

case in support of post-conviction relief," there are "material issues of disputed

fact that cannot be resolved by reference to the existing record," and a "hearing

is necessary to resolve the claims for relief." R. 3:22-10.

                                         B.

      As a threshold matter, we reject the State's contention that defendant's

claim that he was denied his self-representation right is procedurally barred. A

defendant may seek PCR upon a showing of a "[s]ubstantial denial in the

                                                                          A-4915-16T2
                                         7
conviction proceedings of defendant's rights under the Constitution of the

United States or the Constitution or laws of the State of New Jersey." R. 3:22-

2(a). As a corollary to the right to counsel, the right to represent oneself enjoys

constitutional protection. See Faretta v. California, 422 U.S. 806, 813-14, 821

(1975); State v. King, 210 N.J. 2, 16 (2012).

      As a procedural matter, defendant's claim that his right was denied stands

on similar footing with a claim of ineffective assistance of counsel. "Our courts

have expressed a general policy against entertaining ineffective-assistance-of-

counsel claims on direct appeal because such claims involve allegations and

evidence that lie outside the trial record." Preciose, 129 N.J. at 460. Likewise,

the issue whether defendant waived by conduct his right to represent himself

requires, in this case, a review of evidence outside the trial record. That may

include evidence of discussions between defendant and his appointed counsel.

Those discussions may reflect how defendant perceived the court's non-response

to his self-representation request, and whether defendant intentionally

relinquished it thereafter. Consequently, defendant's claim is appropriate for

PCR review because it could not have been fully considered on direct appeal.

      In any event, the court shall not bar a defendant's claim in a first PCR

proceeding if it "would result in fundamental injustice." R. 3:22-4(a)(2). In


                                                                          A-4915-16T2
                                        8
State v. Coon, 314 N.J. Super. 426 (App. Div. 1998), the defendant contended

in a petition for PCR that he waived his right to appellate counsel without the

required searching inquiry to confirm whether he did so knowingly and

voluntarily. Id. at 431-33. Even if defendant could have raised the claim earlier,

we declined to bar it because doing so "would result in a fundamental injustice."

Id. at 437 (quoting R. 3:22-4(b)).       On the same basis, we decline to bar

defendant's claim that the trial court denied him his right of self-representation. 1

                                         C.

      Our substantive analysis involves consideration of two questions: (1) did

defendant effectively assert his right to represent himself; and (2) if so, did he

subsequently waive that right by conduct or acquiescence. To address the first

question, we review well-settled principles regarding self-representation.

      The United States Supreme Court held in Faretta that a defendant has a

Sixth Amendment right to represent oneself at trial, so long as the defendant has

"voluntarily and intelligently" waived the right to counsel. 422 U.S. at 807; see



1
  Given our view of the procedural bar, we need not address defendant's
alternative claim that his appellate attorney was ineffective by failing to raise
on direct appeal the deprivation of his right to self-represent. But see Orazio
v. Dugger, 876 F.2d 1508, 1513 (11th Cir. 1989) (holding that the failure to
raise a Faretta claim on direct appeal constituted ineffective assistance of
counsel).
                                                                            A-4915-16T2
                                         9
also Godinez v. Moran, 509 U.S. 389, 400 (1993) (stating the waiver must be

"knowing and voluntary"); State v. Crisafi, 128 N.J. 499, 509 (1992) (stating the

waiver must be made "knowingly and intelligently"); State v. Thomas, 362 N.J.

Super. 229, 243 (App. Div. 2003) (stating the waiver must be "voluntary,

knowing and intelligent"); Wayne R. LaFave et al., 3 Criminal Procedure §

11.3(a), at 775 and n.7 (4th ed. 2015) (stating that the waiver must be "knowing,

intelligent, and voluntary" and that various similar formulations do not mean to

suggest "a difference in content"); cf. State v. Wessells, 209 N.J. 395, 402 (2012)

(stating that the waiver of right to counsel by a suspect in custody must be

"knowing, voluntary and intelligent").

      Mindful that defendants are usually better off with counsel than without,

the Court has required that a defendant "be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with eyes open." Faretta, 422

U.S. at 434 (citation omitted); see also State v. Reddish, 181 N.J. 553, 592

(2004). The court "should 'indulge [in] every reasonable presumption against

waiver.'" King, 210 N.J. at 19 (quoting State v. Gallagher, 274 N.J. Super. 285,

295 (App. Div. 1994)); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).




                                                                          A-4915-16T2
                                       10
      A two-step process has emerged. First, a defendant must assert the right

of self-representation "in a timely fashion" so as not to "disrupt the criminal

calendar, or a trial in progress." State v. Buhl, 269 N.J. Super. 344, 362 (App.

Div. 1994).   The request must be made "clearly and unequivocally."           See

Faretta, 422 U.S. at 835 (upholding waiver of counsel where defendant "clearly

and unequivocally declared . . . that he wanted to represent himself" and did so

voluntarily and intelligently); State v. Figueroa, 186 N.J. 589, 593 and n.1

(2006); State v. Harris, 384 N.J. Super. 29, 57 (App. Div. 2006). In making the

request, a defendant need not "recite some talismanic formula." Dorman v.

Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986). Whether "orally or in

writing," a defendant need only make the request "unambiguously . . . so that no

reasonable person can say that the request was not made." Ibid.

      Second, once a defendant asserts the self-representation right, the trial

court must ascertain, in a so-called "Faretta hearing," whether the waiver is

indeed knowing, voluntary, and intelligent after a searching inquiry that

involves advising the defendant of the risks and pitfalls of self-representation.

State v. DuBois, 189 N.J. 454, 468-69 (2007); Figueroa, 186 N.J. at 593;




                                                                        A-4915-16T2
                                      11
Reddish, 181 N.J. at 593-95 (describing the inquiry); Crisafi, 128 N.J. at 510-

12 (describing the inquiry). 2

        Following the hearing, the court generally must permit the defendant to

proceed pro se if it finds on the record that the defendant has knowingly,

voluntarily, and intelligently waived the right to counsel and decided instead to



2
    The Court described the required inquiry as follows:

              Taken together, then, the Crisafi/Reddish inquiry now
              requires the trial court to inform a defendant asserting
              a right to self-representation of (1) the nature of the
              charges, statutory defenses, and possible range of
              punishment; (2) the technical problems associated
              with self-representation and the risks if the defense is
              unsuccessful; (3) the necessity that defendant comply
              with the rules of criminal procedure and the rules of
              evidence; (4) the fact that the lack of knowledge of the
              law may impair defendant's ability to defend himself
              or herself; (5) the impact that the dual role of counsel
              and defendant may have; (6) the reality that it would
              be unwise not to accept the assistance of counsel; (7)
              the need for an open-ended discussion so that the
              defendant may express an understanding in his or her
              own words; (8) the fact that, if defendant proceeds pro
              se, he or she will be unable to assert an ineffective
              assistance of counsel claim; and (9) the ramifications
              that self-representation will have on the right to
              remain silent and the privilege against self-
              incrimination.

              [DuBois, 189 N.J. at 468-69.]


                                                                         A-4915-16T2
                                        12
proceed pro se. Figueroa, 186 N.J. at 593. "[T]he ultimate focus must be on the

defendant's actual understanding of the waiver of counsel." Crisafi, 128 N.J. at

512. In rare cases, a court's failure to engage in the necessary colloquy may be

excused. Id. at 512-513 (finding waiver of counsel knowing and intelligent

despite inadequacy of colloquy).

      However, the right of self-representation is not "absolute." Reddish, 181

N.J. at 587. In exceptional cases, the court may deny self-representation if it

would obstruct the progress of a case, or, it would interfere with "the integrity

of the State's interest in fair trials" and the courts' ability "to ensure that their

judgments meet the high level of reliability demanded by the Constitution."

Reddish, 181 N.J. at 587;3 see also State v. McNeil, 405 N.J. Super. 39, 52 (App.

Div. 2009) (affirming finding that a mentally ill defendant lacked competence

to represent himself though he was competent to stand trial) (citing Indiana v.

Edwards, 554 U.S. 164, 176-78 (2008)); LaFave et al., § 11.5(d), at 865-82

(discussing grounds for denying self-representation, including misconduct and

lack of competence to self-represent).




3
  Although Reddish applied this standard to a capital case, the Court has
invoked this standard in other cases. See, e.g., King, 210 N.J. at 18 (robbery
case).
                                                                            A-4915-16T2
                                         13
      Defendant's oral and written requests to discharge his appointed counsel

and to represent himself were timely – as he made them well in advance of trial.

They were also clear and unequivocal. The record belies the State's contention

that defendant's request was "vague."        Once the court summarily denied

defendant's request for substitute counsel, defendant said, without qualification,

that he wanted to represent himself and he refused to go to court with someone

he believed would "sell [him] out." Rather than hold a Faretta hearing, the trial

court deflected defendant's oral request by inappropriately requiring defendant

to submit his request in writing. See Buhl v. Cooksey, 233 F.3d 783, 792 (3d

Cir. 2000) (stating that the law "does not require that [the] request be written or

in the form of a formal motion"). Defendant responded with an unambiguous

request to represent himself, but the court ignored the letter. 4

      In response to defendant's request, the court was obliged to conduct a

Faretta hearing. A defendant is entitled to a new trial when a court denies a



4
   While the court may have viewed defendant's oral request as conditioned on
his inability to get replacement counsel, his written request was unconditional.
It criticized his appointed counsel, but did not request a substitute. In any
event, "[a] request to proceed pro se is not equivocal because it is an
alternative position, advanced as a fall-back to a primary request for different
counsel." Johnstone v. Kelly, 808 F.2d 214, 216 n.2 (2d Cir. 1986); see also
United States v. Hernandez, 203 F.3d 614, 621-22 (9th Cir. 2000) (finding
request so conditioned unequivocal).
                                                                          A-4915-16T2
                                        14
defendant the right to self-representation without determining whether a timely

and unequivocal request was knowingly, voluntarily, and intelligently made.

            [I]f the court fails to fulfill its obligation to inform the
            defendant [of the nature of the charges, the possible
            penalties and the dangers of self-representation] and
            then denies his request to represent himself, it violates
            the defendant's Sixth Amendment right of self-
            representation. . . . Were the rule otherwise, the Sixth
            Amendment right to self-representation would be
            severely weakened. . . . If the judge failed to perform
            his duties properly – if he failed, for example, to
            explain adequately the dangers of self-representation
            and the consequences the defendant faced – the
            defendant would be penalized: his right to self-
            representation would be forfeited by virtue of the
            court's error.

            [United States v. Hernandez, 203 F.3d 614, 625 (9th
            Cir. 2000) (reversing conviction based on wrongful
            denial of right of self-representation).]

See also Buhl, 233 F.3d at 800, 806-07 (reversing conviction where court denied

a timely and unequivocal request on the ground that the defendant was motivated

by his dissatisfaction with counsel); Figueroa, 186 N.J. at 596.

      The failure to rule on a defendant's request has been treated the same as

an explicit denial. In Moore v. Haviland, 531 F.3d 393, 401-04 (6th Cir. 2008),

the trial court declined to rule on the defendant's self-representation request and

directed defense counsel to call his next witness. The Court of Appeals grant ed

habeas corpus relief, stating that "[b]y failing to rule on [the defendant's]

                                                                           A-4915-16T2
                                        15
unequivocal requests to proceed pro se, the trial court deprived him of his Sixth

Amendment right to self-representation." Id. at 404.

      Violation of the right is not "amenable to 'harmless error' analysis. The

right is either respected or denied; its deprivation cannot be harmless."

McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); see also King, 210 N.J. at

22 (reversing conviction where trial court erred in denying defendant's motion

to represent himself).

      Although the record does not clearly demonstrate that defendant's

assertion of the right to represent himself was knowingly, voluntarily, and

intelligently made, that lack of clarity results from the trial court's failu re to

engage in the searching inquiry our case law requires. The trial court did not

explicitly deny defendant's request. Nonetheless, as in Hernandez, defendant

should not be "penalized" for the court's error in failing to address defendant's

request in a Faretta hearing. Unless defendant's failure to persist in his request

constitutes a waiver of his self-representation right, the court's failure to act is

tantamount to a denial, inasmuch as defendant could only proceed pro se with

the court's affirmative approval. See Haviland, 531 F.3d at 404. Therefore, we

turn next to the issue of waiver.




                                                                           A-4915-16T2
                                        16
                                        D.

      Waiver of a constitutional right, as with waiver generally, requires proof

of the "intentional relinquishment or abandonment of a known right or

privilege." Zerbst, 304 U.S. at 464. Whether a defendant has waived the right

to counsel "must depend, in each case, upon the particular facts and

circumstances surrounding that case, including the background, experience, and

conduct of the accused." Ibid. We conclude this standard also applies to the

waiver of the right to self-representation, once asserted. Furthermore, "'waiver

of constitutional rights in any context must, at the very least, be clear.'"

Mazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J. 482, 505-06

(2012) (quoting Fuentes v. Shevin, 407 U.S. 67, 95 (1972)).

      We recognize that, although the right of self-representation is a

"corollary" to the right to counsel, the rights are treated differently. "While the

right to counsel is in force until waived, the right of self-representation does not

attach until asserted." Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)

(en banc). A defendant is routinely advised of the right to counsel at the outset

of criminal proceedings. See R. 3:4-2(c)(3) (requiring a judge, at the first

appearance of a defendant charged with an indictable offense, to inform the

defendant of the right to retain counsel, and the right to appointed counsel if


                                                                           A-4915-16T2
                                        17
indigent). As we have discussed above, before a court may properly accept a

defendant's waiver of the right to counsel, the court must engage in a searching

inquiry after informing the defendant of the nature of the right and the

consequences of waiver.

      By contrast, our rules do not require the court to inform a defendant of his

or her right to proceed without counsel, and we are unaware of any New Jersey

case that recognizes such an obligation. Nor must a court engage in a colloquy

with a defendant about the risks and pitfalls of eschewing the right of self -

representation before a defendant may proceed with counsel after asserting the

right to proceed pro se.        A defendant may also forego the right of self -

representation without knowing it exists.       In such cases, it would appear

inappropriate to say that such a defendant waived that right, that is, intentionally

relinquished a known right. 5




5
   Some rights can be waived by simple inaction. For example, following "the
majority view," our Court held that "a defendant who does not affirmatively
request the right to participate in voir dire sidebars should be considered to have
waived the right," although the Court did not predicate such waiver on proof of
knowledge of the right to be present. State v. W.A., 184 N.J. 45, 63 (2005). In
other contexts, however, the court has been "unwilling to equate [a] defendant's
silence with a knowing waiver of a constitutional right." State v. Suazo, 133
N.J. 315, 323 (1993) (involving refusal to object to search).
                                                                           A-4915-16T2
                                        18
      Other courts have held that a trial court is not obliged to inform a

defendant of the right of self-representation. See LaFave et al., § 11.5(b), at

847-48 and n.31 (citing cases). One court has explained that the two rights are

treated differently because the right to counsel is essential to the right to a fair

trial, while the right to self-representation "is grounded more in considerations

of free choice than in fair trial concerns." United States v. Martin, 25 F.3d 293,

295 (6th Cir. 1994). The Martin court cites Schneckloth v. Bustamonte, 412

U.S. 218, 237 (1973) for the proposition that, "[a]lmost without exception, the

requirement of a knowing and intelligent waiver has been applied only to those

rights which the Constitution guarantees to a criminal defendant in order to

preserve a fair trial." Schneckloth identifies the right to counsel, confrontation,

a jury trial, a speedy trial, and freedom from double-jeopardy. Id. at 237-38.

      Some federal courts have held that even the right to counsel may be

"waive[d] by conduct." United States v. Bauer, 956 F.2d 693, 695 (7th Cir.

1992). The Seventh Circuit in Bauer held that a defendant waived his right to

counsel when he insisted upon appointed counsel but refused to provide

financial information to demonstrate that he qualified, and refused to retain

private counsel. However, the Third Circuit has stated, "'A waiver by conduct'

requires that a defendant be warned about the consequences of his conduct,


                                                                           A-4915-16T2
                                        19
including the risks of proceeding pro se." United States v. Goldberg, 67 F.3d

1092, 1101 (3d Cir. 1995). The Goldberg court reasoned that when a defendant

neither asks nor intends to proceed pro se, but is compelled to do so because of

his obstructive or uncooperative behavior, it is more accurate to say that the

defendant has forfeited rather than waived the right. Ibid.

      We are unaware of any New Jersey case in which a defendant was found

to have waived by conduct the right of self-representation after assertion. 6 Yet,

federal courts have found such waivers by conduct where the defendant did not

press the issue in the face of judicial inaction or indecisiveness.

      The federal courts do not require a defendant to persist in asserting the

right to proceed pro se after a clear denial. See Orazio v. Dugger, 876 F.2d

1508, 1512-13 (11th Cir. 1989) (rejecting finding of waiver); Brown, 665 F.2d

at 612 (stating that, to avoid a waiver, a defendant need not "continually rene w

his request to represent himself even after it is conclusively denied by the trial

court"). However, absent a clear denial, some federal courts have deemed a

defendant's inaction to be a waiver under the circumstances. "Once asserted . . .

the right to self-representation may be waived through conduct indicating that


6
  A defendant may waive the issue of the denial of the right on appeal, by
entering a non-conditional guilty plea. State v. Szemple, 332 N.J. Super. 322,
328-29 (App. Div. 2000).
                                                                         A-4915-16T2
                                       20
one is vacillating on the issue or has abandoned one's request altogether."

Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (quoting Williams v. Bartlett,

44 F.2d 95, 100 (2d Cir. 1994)).

      The Second Circuit held that a defendant waived his self-representation

right when his request was met with judicial equivocation, and he did not renew

his request. Id. at 38. The court noted that defendant was motivated to make

his request by his dissatisfaction with appointed counsel. There were two

subsequent changes in attorneys and defendant expressed no dissatisfaction with

new counsel and did not "reassert his desire to proceed pro se." Id. at 38-39.

The court observed that the defendant's silence starkly contrasted with his

willingness to assert other rights and to challenge the court. Ibid.

      Other federal courts have reached similar conclusions. In Brown, the

court affirmed the district court's denial, after an evidentiary hearing, of hab eas

corpus relief based on the denial of the right of self-representation. 665 F.2d at

612. The trial judge had deferred ruling on the defendant's motion to proceed

pro se. Id. at 609. Defense counsel later informed the court that he and his

client had resolved the difficulties that apparently prompted the defendant's

request. Ibid. Defendant conceded that he told his attorney to "'stay on' as his




                                                                           A-4915-16T2
                                        21
lawyer," but he argued he did so only after he considered his self-representation

request denied. Id. at 610.

      The Fifth Circuit applied a relaxed standard to waiver of the self-

representation right. "The right of self-representation . . . is waived if not

asserted, while the right to counsel is not." Id. at 611. From that premise, the

court concluded, "Since the right of self-representation is waived more easily

than the right to counsel at the outset, before assertion, it is reasonable to

conclude it is more easily waived at a later point, after assertion." Ibid. "A

waiver may be found if it reasonably appears to the court that [the] defendant

has abandoned his initial request to represent himself."       Ibid.   The court

acknowledged that "in some cases a personal dialogue between the court and

defendant may be advisable." Id. at 612. But, it was unnecessary when "all

circumstances indicate[d] [the] defendant ha[d] abandoned his request to

conduct his own defense." Ibid.

      In Cain v. Peters, 972 F.2d 748 (7th Cir. 1992), the Seventh Circuit

rejected a habeas corpus challenge to a state court finding that the defendant

waived by conduct, or, in the Circuit's view, forfeited self-representation. The

defendant had expressed dissatisfaction with his attorney, stating "he had

nothing to lose [in representing himself] because he was not 'getting adequate


                                                                        A-4915-16T2
                                      22
representation'" from his appointed counsel. Id. at 749. The trial judge told the

defendant that he was entitled to represent himself, but ordered a psychiatric

examination.    Ibid.   That led the judge to appoint a new attorney for the

defendant, who did not raise the issue of self-representation again.

      The Circuit held that the defendant "had only to speak up." Id. at 750.

The court assumed he did not because he got what he wanted, a different lawyer.

Ibid.; see also United States v. Johnson, 223 F.3d 665, 669 (7th Cir. 2000)

(concluding that "[t]he only plausible inference from the defendant's conduct is

that he acquiesced in the denial by judicial inaction of his motion and thereb y

deliberately relinquished his right of self-representation"); Walker v. Phelps,

910 F.Supp.2d 734, 742-43 (D. Del. 2012) (finding that defendant abandoned

his asserted self-representation right by acquiescing to counsel's representation).

      Although our State Supreme Court has not addressed the issue, we are

convinced the Court would find that a defendant may waive by conduct an

asserted right of self-representation. In other contexts, a trial court may infer

the waiver of a constitutional right by conduct. For example, a court may infer

the "knowing waiver of the right to attend trial" by the defendant's absence, so

long as the court has provided defendant "adequate notice of the date, time and

place of trial and of the right to be present," and informed defendant of the


                                                                          A-4915-16T2
                                       23
"consequences of the failure to appear." State v. Hudson, 119 N.J. 165, 179-80,

182 (1990); R. 3:16(b) (stating a defendant may waive the right to be present by

"the defendant's conduct evidencing a knowing, voluntary and unjustified

absence after (1) the defendant has received actual notice in court or has signed

a written acknowledgment of the trial date, or (2) trial has commenced in

defendant's presence").

      Although the right to self-representation may be waived by conduct, the

conduct must clearly establish that the defendant intentionally relinquished a

known right.    See Mazdabrook, 210 N.J. at 505-06 (stating a waiver of a

constitutional right must at least be clear). Even assuming differences between

the right to counsel and the right of self-representation, once a defendant has

clearly and unequivocally requested permission to proceed pro se, the right of

self-representation should be treated more like the right to counsel. That is

because once a defendant exercises the right of self-representation, it "must be

scrupulously respected through all critical stages of his criminal prosecution and

cannot be revoked without affirmative action by the defendant to rescind his

waiver [of counsel] and reinstate his right to counsel." State v. Ayer, 834 A.2d

277, 289 (N.H. 2003).




                                                                         A-4915-16T2
                                       24
      Faretta requires the court to respect the defendant's invocation of the right.

Even if a defendant is unaware of a right to self-representation, once a defendant

requests to proceed pro se, and the court takes the issue under advisement, a

defendant may be presumed to know at least that there was a possibility he could

represent oneself. Waiver should require proof that he or she intentionally

relinquished that known right. It may arise from the defendant's acceptance of

the court's inaction in refusing to address such a request. However, mere

acquiescence through silence in representation by counsel is not proof enough.

      We acknowledge that in none of the federal waiver-by-conduct cases cited

did the court expressly address whether the defendant's conduct evidenced an

intentional relinquishment of a known right. However, we are persuaded that

our State Supreme Court would apply the test, consistent with Johnson v. Zerbst,

as well as the general principle that we must "'indulge every reasonable

presumption against waiver' of fundamental constitutional rights and . . . 'do not

presume acquiescence in the loss of fundamental rights.'" State v. Buonadonna,

122 N.J. 22, 35 (1991) (quoting Zerbst, 304 U.S. at 464). In Schneckloth, the

Supreme Court held that proof of knowledge of the right to refuse consent was

not essential to prove voluntary consent to a search. 412 U.S. at 248-49. In

contrast to the Sixth Circuit's approach in Martin, our State Supreme Court has


                                                                           A-4915-16T2
                                       25
declined to apply Schneckloth's reasoning to the New Jersey Constitution. Our

State Supreme Court held that under Art. I. par. 7, voluntary consent to a search

requires a knowing and intelligent waiver, which includes "knowledge of the

right to refuse consent." State v. Johnson, 68 N.J. 348, 353-54 (1975).

         We find persuasive the reasoning of the several dissenters in Brown, who

would have applied the Johnson v. Zerbst principle requiring proof of an

intentional relinquishment of a known right. Brown, 665 F.2d at 613 (Hill, J.,

dissenting). The dissenters noted that "[s]elf-representation, as a constitutional

right, is valuable per se and should not be held lightly waived once it attaches."

Ibid.7

         Also persuasive is the Ninth Circuit's rejection of the government's

argument that a defendant waived his motion for substitute counsel because he

did not reassert it after the court inadvertently failed to rule on it. Schell v.

Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc). The defendant stated that h is

attorney told him that the request must have been denied "because she was still

his attorney." Id. at 1021. The Court of Appeals held that the defendant "did


7
   The dissenters went on to contend that once the self-representation right
attaches, "the defendant ought not be found to have waived it until and unless
there is a dialogue between the judge and the defendant showing a knowing and
intelligent voluntary waiver." Ibid. As we accept the possibility of waiver by
conduct, we conclude that a dialogue, although preferred, is not essential.
                                                                          A-4915-16T2
                                        26
not voluntarily, knowingly and intelligently waive [his] motion that he

reasonably believed was denied." Id. at 1024. The same test should apply to a

case where a defendant does not reassert a request to proceed pro se after the

trial court inadvertently failed to rule, especially if the defendant understood

that the request was denied.

      The critical question here is whether defendant clearly intended to

relinquish a known right. The court must consider the "facts and circumstances

surrounding th[e] case, including the background, experience, and conduct of

the accused." Zerbst, 304 U.S. at 464. As in Brown, 665 F.2d at 616, we

conclude that an evidentiary hearing is necessary to explore communications

between counsel and defendant, and other circumstances that would reflect

defendant's knowledge and intent.

      Defendant may have resolved his differences with his attorney, and

decided to abandon his request to proceed pro se.       In Brown, the defense

attorney's testimony that he had patched things up with the defendant was

probative of the defendant's intent to abandon his request. However, unlike in

Cain and Walker, defendant here did not receive a new appointed attorney,

which might have obviated defendant's motivation to proceed pro se.




                                                                        A-4915-16T2
                                      27
      Alternatively, defendant may have reasonably understood the court's

inaction to be tantamount to a denial. Indeed, his attorney may have advised

him to consider it as such, as in Schell. If defendant did not intend to relinquish

his request, it may well have been prudent for him to inquire whether the court

intended to respond to his letter. However, we are not prepared to hold that his

failure to inquire is conclusive proof of waiver. It takes some measure of

temerity even for practicing attorneys to nudge a judge who has reserved

decision on a motion. Here, the court insisted that defendant submit his reque st

to proceed pro se in writing. If defendant reasonably believed his request was

denied, he was not obliged to continually renew it. Cf. Orazio, 876 F.2d at 1512.

      Defendant's reasonable interpretation of the court's inaction is a fact

question. We therefore remand for an evidentiary hearing and a determination

whether defendant waived his right to proceed pro se. Unless the court finds

that defendant waived his right, the court's failure to address defendant's request

is a structural error that entitles defendant to a new trial.

      We conclude by observing that trial courts must timely address a

defendant's expressed desire to proceed pro se. While we have no reason to

believe the court in this case deliberately ignored defendant's request in the hope

that he would drop the matter, the court failed to promptly address defendant's


                                                                          A-4915-16T2
                                         28
request. It serves both the interests of justice and judicial economy to address

Faretta issues promptly when they arise.

                                       II.

      Defendant presents multiple other claims of ineffective assistance of trial

counsel. In his counseled brief, he contends:

            POINT ONE

            DEFENDANT'S TRIAL ATTORNEY WAS
            CONSTITUTIONALLY INEFFECTIVE WHERE HE
            FAILED TO FORMULATE A DEFENSE
            STRATEGY INVOLVING THIRD PARTY GUILT
            AND WHERE THE RECORD REVEALED THAT
            HE WAS NOT FULLY FAMILIAR WITH THE
            MATERIAL FACTS OF THE CASE.

            POINT TWO

            THE PCR COURT ERRED WHERE IT FOUND
            THAT THE DEFENDANT DID NOT ESTABLISH A
            PRIMA FACIE CASE WHICH WARRANTED AN
            EVIDENTIARY HEARING.

            POINT THREE

            THE PCR COURT ERRED WHERE IT DID NOT
            DETERMINE WHETHER THE TRIAL COURT
            ERRONEOUSLY REQUIRED DEFENDANT'S
            WAIVER OF COUNSEL REQUEST TO BE MADE
            IN WRITING.




                                                                        A-4915-16T2
                                      29
            POINT FOUR

            THE PCR COURT ERRED WHERE IT DID NOT
            DECIDE DEFENDANTS REQUEST FOR RELIEF
            BASED ON THE TRIAL COURT'S ADMISSION OF
            THE GUILTY PLEA OF THE STATE'S CHIEF
            WITNESS, A PERSON IT ALLEGED DEFENDANT
            COAXED INTO MURDERING THE VICTIM.

            POINT FIVE

            THE PCR COURT'S REJECTION OF THE
            DEFENDANT'S PRO SE POST-TRIAL MOTION
            REGARDING JURY MISCONDUCT FOR LACK OF
            GOOD CAUSE UNDER R. 1:16-1, WHICH THE
            TRIAL COURT DID NOT ADDRESS, WAS
            HARMFUL TO THE INTEGRITY OF THE JURY
            PROCESS.

Rose added the following arguments in his pro se supplemental brief:

            POINT ONE

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION BECAUSE THE TRIAL
            COURT ERRED IN NOT SUA SPONTE
            INSTRUCTING THE JURY ON AGGRAVATED
            MANSLAUGHTER, MANSLAUGHTER AND
            PASSION-PROVOCATION AS A LESSER-
            INCLUDED OFFENSE TO MURDER THEREBY
            DEPRIVING DEFENDANT OF THE RIGHT TO A
            FAIR TRIAL.

            POINT TWO

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION BECAUSE TRIAL
            COUNSEL PROVIDED INEFFECTIVE

                                                                       A-4915-16T2
                                     30
            ASSISTANCE OF COUNSEL THEREBY
            PREJUDICING DEFENDANT. IN THE
            ALTERNATIVE, BECAUSE DEFENDANT
            PRESENTED AT LEAST PRIMA FACIE PROOF
            THAT HE HAD BEEN DEPRIVED OF THE
            EFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
            THE PCR COURT ERRED BY FAILING TO HOLD
            A FULL EVIDENTIARY HEARING.

            POINT THREE

            TRIAL COUNSEL WAS INEFFECTIVE WHEN HE
            FAILED TO PROPERLY CROSS-EXAMINE
            STATE'S WITNESS SALVATORE PUGLIA.

            POINT FOUR

            CUMULATIVE ERRORS BY COUNSEL
            AMOUNTED TO INEFFECTIVE ASSISTANCE OF
            COUNSEL AND THE DENIAL OF A FAIR TRIAL.

            POINT FIVE

            THE PCR COURT ERRED IN FAILING TO
            CONDUCT A FULL EVIDENTIARY HEARING ON
            DEFENDANT'S CLAIMS.

      With respect to these points, we affirm the PCR court's denial of relief

substantially for the reasons set forth in its extensive written opinion, with one

exception. We remand for an evidentiary hearing on defendant's claim that his

trial counsel was ineffective because he failed to call several witnesses, about

whom he was aware before trial, to undermine Graves's credibility and the

reason he confronted Mosley.

                                                                         A-4915-16T2
                                       31
      These witnesses contended, in certifications, that Graves knew Mosley

before the homicide; Graves discussed robbing Mosley; and Graves exonerated

defendant. One witness contended in a March 2006 letter to defendant before

trial that Graves told him that defendant was not involved in the homicide.

Rather, Graves admitted that he used to get high with Mosley; Mosley caught

him during an attempted burglary; they fought; Graves killed Mosley; and then

stole $3000 to $4000 from Mosley.

      Another potential witness, a former employee of Mosley, stated in a

certification written in 2007, after defendant's trial, that he tried to inform trial

counsel that he saw Graves at Mosley's property many times, but counsel refused

to speak to him. The witness said Graves once worked part-time for Mosley;

and the last time he saw the two men, they got into a dispute in which Graves

claimed that Mosley owed him money; and he conveyed this information to

prosecutor's office detectives.

      Defendant's sister certified in 2013 that she advised trial counsel in court

that Graves was lying about not knowing Mosley; she lived near Mosley and

saw Graves and him together numerous times. The sister's partner also certified

in 2013 that he too saw Mosley and Graves together and dispatched defendant's

sister to tell trial counsel he was prepared to testify. A fifth witness told a public


                                                                             A-4915-16T2
                                        32
defender's office investigator two years before trial that he went to Mosley's

home with Graves on three or four occasions where they would obtain "drugs,

alcohol and women for Mosley." This witness said that Graves would bring up

the idea of robbing Mosley because he kept large amounts of cash in his home. 8

      These witnesses would have provided an independent motive for Graves

to enter Mosley's home and to commit the homicide. It would also undermine

Graves's credibility, which was already subject to challenge based on his

inconsistent statements to police and his criminal record. Graves said he did not

know Mosley before the incident.

      The PCR court held that trial counsel was not deficient in failing to present

these witnesses because the testimony would have been at odds with the defense

strategy. The court noted that the trial strategy, as argued on appeal, was to

persuade the jury that defendant "merely asked Graves to try to persuade Mosley

to drop the [attempted murder] charges against him; that Graves had intended to

do nothing more, but had killed Mosley in self-defense when Mosley had

attacked him . . . ." Rose, 206 N.J. at 152. This strategy involved asking the




8
   It is unclear whether defendant's trial counsel represented defendant in 2005
or that he reviewed the investigator's memorandum about the interview before
trial.
                                                                          A-4915-16T2
                                       33
jury to credit Graves's first statement to law enforcement, and not his second

statement or his trial testimony.

      To demonstrate that he was deprived of his constitutional right to effective

assistance of counsel, defendant must satisfy the two-part Strickland test by

demonstrating that (1) his trial counsel was deficient and (2) the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687. To satisfy the

second prong, a defendant must demonstrate "a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have be en

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694.

      As for the first prong, there is a "strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance." Id. at 689.

"[D]efendant must overcome the presumption that . . . the challenged action

'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana,

350 U.S. 91, 101 (1955)).

      We recognize that "[d]etermining which witnesses to call to the stand is

one of the most difficult strategic decisions that any trial attorney must confront"

based on a variety of factors, including the witnesses' likely testimony, their

credibility, and their impact on other witnesses' testimony. State v. Arthur, 184


                                                                           A-4915-16T2
                                        34
N.J. 307, 320-21 (2005).       However, strategy must not be confused with

inattention. LaFave et al., § 11.10(c). "[S]trategic choice made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable," but "strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation." Strickland, 466 U.S. at

690-91.

      "An ineffective assistance of counsel claim may occur when counsel fails

to conduct an adequate pre-trial investigation." State v. Porter, 216 N.J. 343,

352, 357 (2013) (remanding for an evidentiary hearing where the defendant

alleged his trial counsel failed to investigate an alibi defense); see also Wiggins

v. Smith, 539 U.S. 510, 534-36 (2003) (noting that where counsel failed to

discover and present mitigating evidence regarding defendant's history, counsel

was "not in a position to make a reasonable strategic choice" during sentencing);

Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (holding that trial strategy

that was "uninformed" by pretrial investigation was not entitled to a presumption

of deference).

      The record does not reflect that trial counsel ever interviewed the

witnesses, or investigated their susceptibility to challenge. If those witnesses


                                                                          A-4915-16T2
                                       35
could credibly testify that Graves knew Mosley and Graves acted on his own, it

is unclear why defense counsel would choose not to call them, and instead only

ask the jury to credit Graves's initial statement, which still implicated defendant

in a scheme with Graves – albeit not as serious as the actual one Graves

described at trial. Further challenging Graves's credibility would move the jury

to question any and all of the versions of events presented by Graves.

      We shall not defer to a strategy that was uninformed by a reasonable

investigation.   If trial counsel's strategy was based on inattention or an

inadequate investigation, then counsel performed deficiently.         "Whether a

counsel's action or inaction was based on a strategic choice is a factual

question." LaFave et al., § 11.10(c), at 1133. The issue should be explored at

an evidentiary hearing.

      Defendant has also presented a prima facie case of prejudice that warrants

a hearing. "In addressing an ineffective assistance claim based on a counsel's

failure to call an absent witness [or witnesses], a PCR court must unavoidably

consider whether the absent witness's testimony would address a significant fact

in the case, and assess the absent witness's credibility." State v. L.A., 433 N.J.

Super. 1, 15 (App. Div. 2013). However, the absent witnesses' credibility is not

the sole criterion in assessing the prejudice prong. Rather, "it is a factor in the


                                                                          A-4915-16T2
                                       36
court's determination whether there is a reasonable probability that, but for the

attorney's failure to call the witness, the result would have been different – that

is, there would have been reasonable doubt about the defendant's guilt." Id. at

15-16. The court should consider "the credibility of all witnesses, including the

likely impeachment of the uncalled defense witnesses" and "the strength of the

evidence actually presented by the prosecution."          Id. at 16-17 (quoting

McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996)).

      The PCR court must assess whether the uncalled witnesses may have

raised reasonable doubt about the truthfulness of Graves's testimony that he

killed Mosley at defendant's behest. The testimony would not be cumulative,

nor would it pertain to insignificant issues. The testimony would provide a

reason for Graves's presence in Mosley's home other than to do defendant's

bidding. We do not minimize the weight of Puglia's testimony. Yet, if the jury

had a reasonable doubt about the truth of Graves's testimony, that might have

tainted Puglia's testimony as well. Defendant's recorded statement may well

have been just talk, reflecting his satisfaction that Mosley met his demise.

      Analysis of the prejudice prong should await an evidentiary hearing, at

which the strength of the proposed testimony of the absent witnesses could be

weighed.


                                                                          A-4915-16T2
                                       37
                                       III.

      In sum, we affirm in part and reverse in part. We remand for a hearing on

the issue of trial counsel's failure to call the five witnesses; and remand for a

hearing on whether defendant waived by conduct his assertion of the right to

represent himself. We do not retain jurisdiction.




                                                                         A-4915-16T2
                                      38
