STATE OF NEW JERSEY v. LESTER DENMON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3433-04T43433-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LESTER DENMON,

Defendant-Appellant.

_______________________________________

 

Submitted May 23, 2006 - Decided July 21, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-812-98.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

This is an appeal of the Law Division's denial of an application for post-conviction relief (PCR). Defendant Lester Denmon was convicted after a January 2000 jury trial of various crimes, the most serious of which were accomplice liability for first-degree kidnapping in violation of N.J.S.A. 2C:13-1b and first-degree armed robbery in violation of N.J.S.A. 2C:15-1.

The underlying offenses arose out of the gunpoint robbery of an elderly couple at their home on March 1, 1997, after which the husband and wife were handcuffed to a chair by defendant's accomplice, James Chester, while defendant waited outside in a red Cadillac getaway car. Defendant had been at the couple's home a few weeks beforehand and supplied information to Chester that led to the robbery. Following the crime, the two men then made several purchases with the victims' credit cards. Chester, who was a co-defendant in the indictment, testified against defendant at trial after reaching a plea bargain with the State.

Defendant received an aggregate extended sentence of forty years in custody, with a twenty-year period of parole ineligibility to run consecutively to a sentence that defendant was already serving. We affirmed the conviction in a reported decision, State v. Denmon, 347 N.J. Super. 457 (App. Div. 2002), but remanded for resentencing because of the imposition of two concurrent extended terms. Certification was denied. State v. Denmon, 174 N.J. 41 (2002). On remand, defendant was resentenced to the same term, applied to only one of the two kidnapping convictions.

Defendant, still represented by counsel, then filed a petition with the trial judge for post-conviction relief pursuant to R. 3:22-1. After a hearing on March 1, 2005, the judge denied the PCR petition without a plenary hearing, for reasons articulated in an oral opinion and thereafter embodied in an order dated March 4, 2005.

Thereafter, defendant appealed the March 4, 2005 order to this court, submitting two successive pro se briefs in addition to the brief filed by his appellate counsel. Having examined the numerous arguments presented in those briefs and the copious record, we have determined that only one contention, involving the garb of co-defendant Chester when he testified, is of sufficient merit to warrant a plenary hearing. Accordingly, we affirm the order denying PCR relief on all grounds, except to the extent that we order a limited remand on the issue regarding Chester's physical appearance when testifying before the jury.

I.

Defendant specifically raises the following arguments through his attorney:

POINT I

THE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE COURT DENIED THE DEFENDANT'S POST-CONVICTION RELIEF APPLICATION FOR AN EVIDENTIARY HEARING

POINT II

AN IMPROPER STATEMENT MADE BY THE PROSECUTOR DURING HER SUMMATION WAS PREJUDICIAL TO THE DEFENDANT (NOT RAISED BELOW)

POINT III

THE TRIAL COURT ERRED WHEN IT FAILED TO QUESTION THE JURY ON THE POSSIBILITY OF SEEING THE DEFENDANT SHACKLED IN HANDCUFFS AND LEG IRONS DURING TRANSPORTATION FROM THE SHERIFF'S OFFICE (NOT RAISED BELOW)

Additionally, defendant presented the following arguments in his initial pro se supplemental brief:

POINT I

THE TRIAL COURT ERRED IN PRESENTING THE ACCOMPLICE LIABILITY CHARGE (NOT RAISED BELOW)

POINT II

THE TRIAL JUDGE'S VOIR DIRE OF THE PROSPECTIVE JURORS WAS CONSTITUTIONALLY INADEQUATE

POINT III

THE POLICE LACKED VALID CONSENT TO SEARCH THE IMPOUNDED RED CADILLAC. ACCORDINGLY THE EVIDENCE FOUND IN THAT CAR MUST BE SUPPRESSED. U.S. CONST. AMEND. IV; XIV; NJ CONST. (1947), ART.1, PAR.7

POINT IV

THE DEFENDANT WAS PREJUDICED BY THE LACK OF ALL THE CIRCUMSTANCES REGARDING CHESTER'S OFFER TO TESTIFY AGAINST DEFENDANT IN EXCHANGE FOR FAVORABLE TREATMENT

POINT V

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF.

Following the submission of the State's responding brief, defendant submitted a letter to the Court dated May 18, 2006 raising yet another issue, namely that his counsel was ineffective for failing to object to, and to appeal from, co-defendant Chester's alleged appearance at trial in clothing identifying him as a prisoner. After preliminarily reviewing the trial record on this point, we agreed to consider its merits, nunc pro tunc, and requested and received briefs on the issue from the State and defendant's counsel.

For reasons we express hereafter, we conclude that a remand for further proceedings is warranted on the question of witness Chester's clothing, but deem all other points raised by defendant, or on his behalf, to lack merit. Accordingly, we shall address the issue of Chester's clothing first.

II.

For reasons apparent from our prior opinion in this case, see State v. Denmon, 347 N.J. Super. at 461-63, co-defendant Chester was an important witness for the State against defendant. His testimony established that he had met defendant in 1986 when they were in prison together, that the two of them had planned and carried out the robbery of the victim's home, and that the two of them subsequently made purchases with a credit card taken from one of the victims. Id. at 463. Defendant testified on his own behalf and denied wrongdoing. Ibid. In his own testimony, defendant claimed that Chester had taken the stand against him as revenge for defendant previously informing jail authorities that Chester had smuggled illegal drugs into the jail. Ibid.

In his pro se letter to us, defendant contends that Chester testified at his trial in prison garb. That assertion cannot be confirmed from the trial transcript. The transcript reflects that there had been some difficulty in the courthouse with outfitting Chester in civilian clothing. Specifically, his suit pants were ill fitting. When this difficulty was made known to the trial judge, the following colloquy ensued with counsel immediately prior to Chester's trial testimony on March 15, 1999:

THE COURT: One of the delays here is the clothing for Mr. Chester. So apparently he is on his way up. . . .

Ms. Prosecutor, this is like going from bad to worse here. My law clerk relates he just gets a call, Mr. Chester's family came down and dropped off a new suit and took back his old cloth[e]s, unfortunately the new suit isn't tailored and doesn't fit him.

My suggestion is, I am not waiting for them to drop off new clothes for him. I don't care what he had on. He has to come up here. Now, if he comes up here with a jumpsuit, I mean they know he is incarcerated.

MS. GOOTENBOER [THE PROSECUTOR]: They will know.

THE COURT: Do you have a position on that?

MR. DE BLIS [DEFENSE COUNSEL]: Yeah, I like the idea.

THE COURT: I thought that you would like. I mean, I would rather see him come up in civilian clothes. I want to keep the case as clean as possible.

Look, what do you mean, it doesn't fit or it is to short? Just tell him -- he is on the line?

. . . .

THE COURT: The record should note I called, the officer told me that the gentleman telling me that the suit doesn't even get on Mr. Chester, he can't put the pants on.

I told him, I said, just get the suit on him. If you can't if it's tight fitting, as long as you get it on, get him up here, otherwise the jumpsuit. So he is coming up. I don't know what he is going to be wearing, but he is coming up at a quarter to three.

[Emphasis added.]

Neither the State nor the defendant's present appellate counsel confirms or denies whether Chester appeared before the jury in prison garb, and Chester's transcribed testimony does not shed light on that question. We also were not supplied with certifications from either of the trial counsel to resolve this factual uncertainty.

The clothing actually worn by Chester at the time of his testimony might very well have legal significance to defendant's claim of ineffective assistance.

Our Supreme Court has held that defense witnesses can no longer appear at trial in prison garb because the practice advances no essential state interest. State v. Artwell, 177 N.J. 526, 530 (2003). A prisoner testifying in prison garb implies a defendant's guilt by association. Id. at 539. "When a risk exists that the jury will render its decision on a basis other than the evidence . . . 'defendant's right to a fair trial requires that the risk be justified by an essential state interest.'" State v. Russell, 384 N.J. Super. 586, 599 (App. Div. 2006) (quoting State v. Artwell, supra, 177 N.J. at 538). In State v. Russell, we applied the holding in Artwell to a scenario in which a prosecution witness, an alleged co-conspirator with the accused, had testified in prison garb, along with handcuffs and shackles. Ibid. We noted that similar guilt-by-association concerns were implicated from that prosecution witness' appearance. Ibid. We thus required that in any future trial of the matter, the State's witness should not appear in prison garb. Ibid.

Because Chester was such a central witness here in defendant's trial, we appreciate the distinct possibility that, if he indeed appeared before the jury in prison garb, there may have been spillover prejudice to defendant. On the other hand, such clothing could have worked to defendant's strategic advantage in his effort to portray Chester as a lying felon. Defendant's own counsel clearly wanted Chester to be attired in prison garb, as reflected by the colloquy quoted above. Of course, the issue becomes academic if Chester was in fact able to fit in the civilian clothing and appeared in normal attire. We simply cannot tell from the record, and are loathe to reach a definitive conclusion without more fact-finding.

Even if it is established that Chester did appear in prison garb, that would not end the analysis of defendant's constitutional claim of ineffectiveness. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Assuming that it is confirmed on remand that Chester did testify in prison garb, these twofold considerations of deficiency and prejudice should be examined in more detail in a plenary hearing. As to deficiency, it may well have been a reasonable tactical decision for defense counsel to not object to Chester appearing in prisoner garb. In that vein, we do not decide here the unbriefed issue of whether the principles announced in Artwell, supra, three years after defendant's trial and further extended to certain prosecution witnesses this year in Russell, supra, would apply retroactively to a trial conducted in 2000.

Second, the presence or absence of actual prejudice to defendant under the Strickland test can not be readily determined on this record. For instance, defendant's own trial testimony, which followed that of Chester, acknowledged that the two of them had been incarcerated together prior to the subject offenses. We cannot tell whether defendant would have elected to testify and volunteer that information anyway had Chester testified in civilian clothing.

In sum, we find it prudent to remand this matter to the PCR judge for findings, after an appropriate plenary hearing, on the limited issues of whether (1) Chester testified in prison garb and, if so, (2) whether that unobjected-to-circumstance rises to the level of ineffective assistance under Strickland. We suggest that the PCR judge attempt to resolve the first issue expeditiously, as that may obviate the need for additional testimony or argument on the second issue.

III.

The remainder of defendant's assorted grounds of appeal are unpersuasive. We address them briefly, seriatim:

A.

Defendant argues through counsel that the PCR court was obligated to conduct an evidentiary hearing on various claims of ineffectiveness unrelated to Chester's alleged prison garb, including counsel's failure to investigate a supposed alibi defense pertaining to defendant's post-robbery presence at a Bradlee's department store, failure to request a probable cause hearing, and failure to raise certain identification issues. We disagree.

For the reasons ably stated by the PCR judge, the defendant's so-called alibi claim -- that he had gone to Bradlee's to visit a girlfriend and not to purchase merchandise with a stolen credit card -- was adequately presented through defendant's own trial testimony, and there is no corroborating certification from the girlfriend supporting the defendant's version of why he was present at the store. Additionally, we note that defendant was captured on a security camera entering the store with Chester, and a cashier identified defendant at trial as a participant in the credit card purchase. No genuine issue is present to warrant a post-conviction evidentiary hearing on these matters. R. 3:22-10; State v. Preciose, 129 N.J. 451 (1992); State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).

With respect to counsel's failure to demand a probable cause hearing, we agree with the PCR judge that such an inherently tactical decision was of little or no consequence here. At a probable cause hearing the State need only produce a "reasonable basis" in the evidence to support a prima facie case adequate for the issuance of defendant's arrest warrant. State v. Burnett, 42 N.J. 377, 386 (1964). The strong proofs of defendant's guilt would more than support the issuance of the arrest warrant and defendant's indictment. Again, no evidentiary hearing on this issue was necessary.

The identification issue now raised by defendant is equally unavailing. One of the victims, James Scott, had identified defendant from a police photograph. Defendant now posits that the victim made that identification out of improper motives connected with defendant's adverse relationship with the victim's son, Kenny Scott. Defendant also emphasizes that the victim had referred to defendant by the alias names of "Sam" or "Sam Bostick," which was consistent with the way the person the victim had previously seen on the premises had identified himself. Our review of the record satisfies us that these identification issues were amply explored before trial in an admissibility hearing pursuant to United States v. Wade, 388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149 (1967) and through defense counsel's vigorous cross-examination of the victim at trial about his identification. No further hearing on this issue is warranted.

B.

Defendant next asserts that the prosecutor made improper statements in her summation. Since that criticism was not raised, and easily could have been raised, on direct appeal, it is barred under R. 3:22-4. Even so, we further note that the argument utterly lacks merit.

Defendant insists that the prosecutor's remark in the last sentence of her summation, specifically, "Don't let him [the defendant] deceive anyone anymore" was an unfair emotional appeal to the jury. We disagree. The remark was within the bounds of permissible comment, particularly given the credibility issues pointedly raised by defendant's conflicting trial testimony, and was not so egregious as to deprive defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999).

C.

Defendant also contends that the trial court erred by failing to question the jury, as requested by his trial counsel, on the possibility that one or more of them may have seen defendant in handcuffs and shackled in leg irons while he was being transported out of the courthouse as the building was cleared because of a gas leak. Again, this is an issue that easily could have been presented on direct appeal and is barred under R. 3:22-4. Further, the claim is substantively based upon conjecture and speculation. There is no certification before us or other evidence demonstrating that any juror in this case ever observed defendant in handcuffs and shackles. Indeed, had the question sought by defense counsel been posed to the jurors, the jury might have been tainted by the very suggestion that defendant could have been handcuffed. The argument clearly lacks merit, and we affirm the PCR judge's recognition of that insufficiency.

D.

Apart from the prison garb issue we have already discussed, we have carefully examined the remaining issues presented in defendant's pro se submissions and conclude that they all lack sufficient merit to warrant discussion. R. 2:11-3(e)(2); State v. King, 372 N.J. Super. 227, 231 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005).

We very briefly note that we are satisfied that the accomplice liability charge was properly issued consistent with the Model Jury Charge (Criminal) 2C:2-6 (rev. 5/22/95); that the jury voir dire was constitutionally adequate under State v. Fortin, 178 N.J. 540, 575 (2004) and that the four additional voir dire questions proposed by defense counsel were redundant and unnecessary; that the warrantless search of the Cadillac was not procured with invalid consent because the vehicle was not registered to him, particularly in light of defendant's acknowledgment, during his cross-examination at trial that he owned the vehicle; and that there is no demonstrable discovery violation by the State under Brady v. Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963) regarding its turnover of materials related to Chester's past criminal history.

Remanded for a plenary hearing on the questions relating to witness Chester's courtroom attire; affirmed on all other issues.

 

Defendant's pro se brief inadvertently did not include a specific point heading with this initial argument. See R. 2:6-2(a)(5) (requiring point headings). We have considered the substance of the argument nonetheless.

This particular item was not shown to the jury, but it does bear upon defendant's ineffectiveness claim concerning his alibi.

(continued)

(continued)

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A-3433-04T4

July 21, 2006