STATE OF NEW JERSEY VS. OTIS L. WILLIAMS (15-10-2271 AND 16-10-2966, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5249-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OTIS L. WILLIAMS,
Defendant-Appellant.
Submitted October 3, 2018 – Decided November 26, 2018
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 15-10-2271
and 16-10-2966.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore Stephens II, Acting Essex County Prosecutor,
attorney for respondent (Tiffany M. Russo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Otis L. Williams appeals from his conviction for first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), following his guilty plea,
arguing:
POINT I
THE COURT ERRED BY DENYING THE MOTION
TO DISMISS THE SUPERSEDING INDICTMENT.
1. BECAUSE THE ADDITIONAL
EVIDENCE DISCOVERED BY THE PROSECUTOR
BETWEEN THE TWO GRAND JURY
PRESENTATIONS WAS NOT PROBATIVE OF
WHETHER WILLIAMS HAD A MORE CULPABLE
MENTAL STATE, THE SUPERSEDING
INDICTMENT SHOWS ACTUAL
VINDICTIVENESS.
2. AFTER THE FIRST GRAND JURY
FOUND PROBABLE CAUSE TO BELIEVE THAT
WILLIAMS ACTED WITH A MERELY RECKLESS
MENTAL STATE, IT VIOLATED THE GRAND
JURY'S ESSENTIAL DECISION-MAKING
FUNCTION, AS WELL AS WILLIAMS'S RIGHT TO
DUE PROCESS, FOR THE PROSECUTOR TO GIVE
THE SECOND GRAND JURY A PURPOSEFUL-
INTENT-OR-NOTHING INSTRUCTION.
3. PROPOSED REMEDIES.
POINT II
ALTERNATIVELY, THIS COURT SHOULD
REMAND FOR A NEW PLEA COLLOQUY,
BECAUSE THE DEFENDANT'S FACTUAL BASIS
DID NOT ESTABLISH ANY CULPABLE MENTAL
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2
STATE, LET ALONE THE EXTREME
INDIFFERENCE TO HUMAN LIFE REQUIRED TO
SUSTAIN AN N.J.S.A. 2C:11-4(A)(1) CONVICTION
FOR AGGRAVATED MANSLAUGHTER.
POINT III
ALTERNATIVELY, THIS COURT SHOULD
REMAND FOR A NEW HEARING ON THE
MOTION TO WITHDRAW THE PLEA, BECAUSE
WILLIAMS WAS DENIED HIS RIGHT TO PLEAD
HIS OWN CAUSE.
We are unpersuaded by any of these arguments and affirm.
After the State presented charges of first-degree murder, N.J.S.A. 2C:11-
3(a) – and lesser included offenses of first-degree aggravated manslaughter and
second-degree manslaughter, N.J.S.A. 2C:11-4(b) – in connection with the
asphyxiation death of Le'lia Whatley, the grand jury returned an indictment
charging defendant with a sole count of second-degree manslaughter. Over
fifteen months later a New Jersey State Police forensic laboratory report1
identified defendant as the major DNA profile that was found on the victim's
vaginal and cervical area and the DNA source of dry secretions found around
her neck; his DNA also matched the profile taken from a watch found at the
1
The date of the New Jersey State Police forensic laboratory report is taken
from the State's merits brief and its trial court brief defending against defendant's
motion to dismiss the superseding indictment. The forensic laboratory report
was not provided in the record on appeal.
A-5249-16T4
3
doorway of the victim's apartment where her body was found. The State
included that evidence when it sought and obtained a superseding indictment
from a second grand jury charging defendant with one count of first-degree
murder, which was the subject of defendant's motion to dismiss. Subsequent to
the denial of that motion, defendant pleaded guilty to an amended charge of first-
degree aggravated manslaughter but preserved his right to appeal the denial of
the motion to dismiss the indictment. 2
Defendant reprises his argument before the trial judge: the second
indictment should be dismissed because the State vindictively presented the
newly-obtained DNA evidence that provided only a link between defendant and
the homicide, but did not provide proof that justified the second grand jury's
finding of the more culpable mental states of knowing and purposeful conduct,
which were rejected by the first grand jury.3 Judge Michael L. Ravin rejected
defendant's contentions, presciently finding: no law prevented re-presentation;
2
The plea agreement also included charges on an unrelated matter.
3
In order to prove murder, the State must prove a defendant purposel y or
knowingly caused the victim's death or serious bodily injury that resulted in
death. N.J.S.A. 2C:11-3(a)(1),(2). The State must prove that a defendant
recklessly caused the victim's death to sustain a manslaughter conviction.
N.J.S.A. 2C:11-4(b)(1).
A-5249-16T4
4
the State's new DNA evidence justified the re-presentation of the case; and the
State's re-presentation was not vindictive.
In reviewing the judge's decision to dismiss the indictment, we "must
ensure that the correct legal standard was employed by the trial court." State v.
Abbati, 99 N.J. 418, 436 (1985); see also State v. Shaw, 455 N.J. Super. 471,
481 (App. Div. 2018). We review legal questions de novo. Shaw, 455 N.J.
Super. at 481. The review of the dismissal, however, is for abuse of discretion,
State v. Hogan, 144 N.J. 216, 229 (1996), and recognizing that the judge's
exercise of discretion will not be disturbed on appeal unless there is a clear abuse
of discretionary authority, State v. Saavedra, 222 N.J. 39, 55-56 (2015), we
affirm Judge Ravin's dismissal of the indictment substantially for the reasons set
forth in his comprehensive and cogent written decision.
We recently concluded – subsequent to Judge Ravin's decision – "no New
Jersey statute or common law precedent . . . categorically bars a prosecutor from
choosing to submit a case to a new grand jury after one has previously voted a
no bill, or requires the State to present new evidence as a condition of
resubmission." Shaw, 455 N.J. Super. at 484. We surmised, however,
considering the pitfalls of boundless re-presentations, that our Supreme Court
"would place some limits on successive resubmissions, in order to respect the
A-5249-16T4
5
grand jury's screening function to shield the innocent; control the abusive
exercise of prosecutorial discretion; and assure defendants fundamental
fairness"; we, however, did not set those limits. Id. at 488. Nor need we fix
those limits in this case.
Judge Ravin recognized that the State's witness, when asked by a grand
juror during the first proceedings if there was any forensic evidence that linked
defendant to the victim's strangulation, responded there was not. The only DNA
evidence that existed at that time indicated defendant was a match to some of
the seminal fluids collected from the victim's body, not from her neck. We agree
with Judge Ravin that "[b]y testifying before the second grand jury that DNA
evidence linked [d]efendant to the victim's neck, [the State's witness] presented
new evidence that went directly to the issue of [d]efendant's culpability with
respect to the strangulation of the victim, which caused her death." We also
agree with his finding that the newly-confirmed DNA evidence from the watch
found at the crime scene was also material to the second panel's return of a first-
degree murder indictment. Inasmuch as the new evidence not only provided a
more solid link between defendant and the homicide, but also connected
defendant to the neck compressions that caused the victim's death, we see no
A-5249-16T4
6
abuse by the State's resubmission of the case to the second grand jury, nor any
abuse of discretion by Judge Ravin in denying defendant's motion to dismiss.
We also agree with Judge Ravin's conclusion that defendant failed to show
the State was vindictive in seeking the second indictment. The State resubmitted
the case during the pretrial stage. A presumption of vindictiveness, therefore,
was not justified. State v. Gomez, 341 N.J. Super. 560, 574 (App. Div. 2001).
In Gomez, we observed:
Trial preparation or continuing investigation may well
lead the prosecutor to the reasonable conclusion that
additional or substituted charges are appropriate. The
fact that a prosecutor seeks or obtains additional
charges after a defendant seeks and asserts a right prior
to trial should not result in a per se presumption of
vindictiveness. Rather the issue is whether the
prosecutor's action was solely retaliation against
defendant for the exercise of a legal right.
[341 N.J. Super. at 575 (citations omitted).]
The new DNA evidence presented a non-vindictive reason for resubmission of
the case to the grand jury, enfeebling defendant's contention that the vindictive
second presentation was provoked by defendant's refusal to plead guilty. Judge
Ravin's sound decision was not an abuse of discretion.
Defendant's argument that the State's all-or-nothing instruction to the
grand jury, requesting that they return an indictment only for first-degree
A-5249-16T4
7
murder, violated the grand jury's decision-making function and defendant's due
process rights was not raised to the trial court; we will not consider it here. State
v. Robinson, 200 N.J. 1, 20 (2009). If we did, his argument, based on the
inapposite holding in Keeble v. United States, 412 U.S. 205 (1973) – which dealt
with lesser included offenses presented to a trial jury, not a grand jury – would
be without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We
previously held in State v. Pessolano, absent a manifest legislative intent to
prosecute under a single statute,
"[i]n the many situations where criminal statutes
overlap in prohibiting the same basic act, the
[prosecutor] in the sound exercise of the discretion
committed to him may proceed under either act," State
v. Gledhill, 67 N.J. 565, 574 (1975)[,] so long as
judgment is not entered against the defendant "under
more than one statute for the same offense." State v.
Pescatore, 213 N.J. Super. 22, 30 (App. Div. 1986).
[343 N.J. Super. 464, 475 (App. Div. 2001).]
Although defendant moved the trial court to withdraw his plea, his
argument there was based on the Slater4 factors. He presently argues that his
4
State v. Slater, 198 N.J. 145, 157-58 (2009) (holding a judge considering a
defendant's plea withdrawal motion must "consider and balance four factors in
evaluating motions to withdraw a guilty plea: (1) whether the defendant has
asserted a colorable claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4)
A-5249-16T4
8
admissions during the plea colloquy did not establish a factual basis for any
culpable mental state, "let alone the extreme indifference to human life required
to sustain" a plea to aggravated manslaughter. Such a challenge is cognizable
on direct appeal, as we are "in the same position as the trial court in assessing
whether the factual admissions during a plea colloquy satisfy the elements of
the offense." State v. Urbina, 221 N.J. 509, 527-28 (2015). Our review is de
novo. State v. Tate, 220 N.J. 393, 403-04 (2015).
Our review of the record reveals defendant's admissions established a
factual basis for the crime as required by Rule 3:9-2. Defendant's admissions
had to establish that he "recklessly cause[d] death under circumstances
manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). A
defendant acts "recklessly"
when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a
nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances
known to him, its disregard involves a gross deviation
from the standard of conduct that a reasonable person
would observe in the actor's situation.
[N.J.S.A. 2C:2-2(b)(3).]
whether withdrawal would result in unfair prejudice to the State or unfair
advantage to the accused").
A-5249-16T4
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Defendant admitted that after he went to the victim's house, he "put [his]
hands on her neck and [–] a moment [–] minutes later, she was dead." The judge
questioned defendant and the following discussion ensued:
THE COURT: [W]hen you placed your hands around
Le'lia Whatley's neck, . . . did you strangle her? Like,
for example, if somebody put their hands around my
neck, and the next thing I knew I was dead, I guess one
could say I'd been strangled. Somebody . . . choked me.
Did you choke her?
[DEFENDANT]: Yes, yeah, yeah.
THE COURT: (Pause). And the result of you choking
her, she died?
[DEFENDANT]: (Pause). Yeah.
We are guided by our Supreme Court's recognition that defendants are
reticent when faced with "admitting the distasteful reality that makes the
charged conduct criminal" during a plea colloquy, State v. Smullen, 118 N.J.
408, 415 (1990), during which they often exhibit a "natural reluctance to
elaborate on the details," State ex rel. T.M., 166 N.J. 319, 334 (2001). Thus, in
determining if a factual basis exists, courts may draw rational inferences from
the defendant's admissions. State v. Campfield, 213 N.J. 218, 236-37 (2013).
Under that lens, defendant's admission that he put his hands on the victim's
neck and choked her until, minutes later, she was dead establishes that he
A-5249-16T4
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disregarded a substantial and unjustifiable risk that choking her for minutes
would cause her death. It can be reasonably inferred that the disregarded risk
from such conduct was a gross deviation from what a reasonable person would
do in defendant's situation. See N.J.S.A. 2C:2-2(b)(3). Although perhaps the
more thorough practice would have been to have defendant admit that he was
aware of and consciously disregarded the risk that his actions would cause the
victim's death, and that his conduct resulted in a probability of her death, his
admission was sufficient to establish the mental state for the crime. Defendant's
admitted-specific facts – choking Le'lia Whatley for minutes until she was dead
– distinguish this case from those where a factual basis was deemed inadequate.
See, e.g., State v. Vasco, ___ N.J. ___ (2018) (adopting Judge Marianne
Espinosa's dissent, State v. Vasco, ___ N.J. Super. ___, ___ (App. Div. 2018)
(slip op. at 19), which observed that defendant, charged with possession of a
weapon for an unlawful purpose, "admitted he knowingly possessed the
weapon" . . . but "admitted little else").
We determine defendant's argument that a remand to the trial court is
required for a new hearing on his plea withdrawal motion because he was denied
the right to make his own arguments lacks merit. Defendant interjected during
Judge Ravin's oral decision after both sides had presented their positions and
A-5249-16T4
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asked, "Do I get a chance to speak to defend myself? Or do I have to . . . fire
my attorney and just go pro se?" Defendant interrupted when the judge
attempted to ascertain if defense counsel had presented "everything [he] needed
to say on behalf of [his] client," and, again during the judge's attempt to
complete his decision, asking if he could "go pro se." The judge ultimately
finished his decision and postponed defendant's sentencing – with which the
judge wanted to proceed immediately after the delivery of his decision. It is
obvious defendant made his oral request to proceed pro se only after it became
apparent the judge was not going to grant his motion to withdraw his plea.
We note, significantly, that defendant never raised the issue again, even
when he had the opportunity to address the court at the next hearing – the last
hearing in this case – when he was sentenced. His outburst during the judge's
ruling on the penultimate issue in the case did not amount to a cognizable request
to represent himself. As we previously determined:
"The right of an accused to represent himself, with or
without the assistance of counsel, is not so absolute that
it must be recognized when to do so would disrupt the
business of the court. . . ." State v. White, 86 N.J.
Super. 410, 418-19 (App. Div. 1965). A defendant
cannot participate in a "cat and mouse game," State v.
Slattery, 239 N.J. Super. 534, 542-43 (App. Div. 1990),
by placing the judge in the "unenviable dilemma"
where, in managing the affairs of the court, he appears
A-5249-16T4
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to be arbitrarily depriving the accused of counsel. State
v. Buhl, 269 N.J. Super. 344, 363 (App. Div. 1994).
[State v. Roth, 289 N.J. Super. 152, 164-65 (App. Div.
1996).]
A defendant's failure to abide by our Rules requiring the filing of a motion
to proceed pro se deprives the court and the State of an opportunity to fully
address the issue. See R. 1:6-2. The searching inquiry now required of trial
judges when a defendant requests self-representation is a lengthy process that
cannot be attended to without preparation. Notice is required to allow the judge
to meet the imposed obligations of ensuring that defendant: is informed of the
consequences of self-representation;5 understands the ramifications; and
5
Court holdings require:
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;
A-5249-16T4
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knowingly and voluntarily waives the right to counsel. Crisafi, 128 N.J. at 512-
13. In that defendant failed to make a proper application to proceed pro se, there
is no cause to grant a remand for a new hearing on the motion to withdra w his
plea.
Defendant's remaining arguments are without sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
(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.
[State v. DuBois, 189 N.J. 454, 468-69 (2007).]
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