STATE OF NEW JERSEY v. JAMES KEITT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3974-06T43974-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JAMES KEITT, A/K/A

JAMES PERRY,

Defendant-Appellant.

__________________________________

 

Submitted: October 28, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-07-1499.

Yvonne Smith Segars, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant James Keitt appeals from the denial of his petition for post-conviction relief (PCR). He is serving an aggregate term of fourteen years with a five-year period of parole ineligibility following his 2001 conviction of theft from the person and escape. We affirm.

The theft and escape offenses occurred in an Atlantic City casino. The events of Mother's Day 2000 were captured on surveillance videotapes. Defendant insisted at trial and on direct appeal that his indictment should have been dismissed because the surveillance videotape contained exculpatory evidence, therefore, the prosecutor was obliged to present it to the grand jury, but did not do so. Defendant also argued that the judge, who decided the motion to dismiss the indictment, erred because he failed to view the videotape.

Defendant also argued at trial, on direct appeal, and in his petition for PCR that he should have been permitted to present the defense of duress. The trial judge denied the application to present a duress defense because defendant had not complied with Rule 3:12-1. On direct appeal, defendant argued that the trial judge erred in denying this request. In our opinion, we noted that the request to present the defense was raised on the third and last day of trial and that the request "lacked the specificity required to persuade the trial judge that the defense of duress may have merit." State v. Keitt, A-5014-00 (App. Div. Oct. 9, 2002) (slip op. at 5-6). The Supreme Court denied certification. 175 N.J. 430 (2003).

In his petition for PCR, defendant argued that trial counsel provided ineffective assistance of counsel because he failed to conduct an adequate investigation to support a duress defense. Defendant also argued that trial counsel failed to present any evidence at sentencing of defendant's extensive gambling, alcohol and substance addictions and his prospects for rehabilitation. Defendant also argued that the prosecutor never offered him a plea agreement and his conduct did not provide a basis for an extended term of imprisonment.

Judge Garofolo held defendant presented a prima facie case of ineffective assistance of counsel on the issue of the presentation of the duress defense and ordered an evidentiary hearing on that issue. He denied relief on all grounds.

At the evidentiary hearing on January 18, 2007, the State presented the testimony of Charles Jurman, an Assistant Deputy Public Defender, and Lee Hughes. Both had represented defendant at the trial level; Hughes served as trial counsel. Defendant testified in support of his petition. Defendant testified that he spoke with Jurman and "presented to him information to prepare a motion to dismiss and I laid out the foundation on which issues I wanted to raise and . . . he raised pretty much all of it, but none of it about the duress issues. . . ." Defendant testified that he presented the duress issue to Hughes when Hughes first visited him at the justice facility. The next time he discussed the issue with Hughes was at trial.

Jurman testified that he could not recall whether defendant spoke to him about the duress defense. He had no recollection of defendant advising him that troopers had used force against him when he was returned to the casino, detained and questioned by them. Nevertheless, he would have reviewed the file, made a note in the file and notified the prosecutor, if he believed it was a viable defense.

Hughes, defendant's trial counsel, testified that defendant did not mention the defense to him prior to trial. When presented to him during trial, he did not believe the facts of the case presented a situation that warranted presentation of the defense. Defendant insisted vehemently during trial that the defense should be raised and Hughes did so at defendant's request.

Judge Garofolo found defendant's testimony unbelievable and found the testimony of Jurman and Hughes credible. The judge stated "the testimony on its face . . . is sufficient to cause this court to have serious doubt that the defendant's claim of having told his attorneys these things is a truthful claim," and the judge denied the petition.

On appeal defendant raises the following argument:

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION.

Defendant is entitled to the effective assistance of counsel at all stages of the proceedings, including the first petition for PCR. State v. Velez, 329 N.J. Super. 128, 132-33 (App. Div. 2000); R. 3:22-6(a). Here, defendant contends that the attorney who represented him during the PCR proceedings provided ineffective assistance of counsel because she was unfamiliar with the file compiled by trial counsel. Defendant also contended PCR counsel failed to urge that appellate counsel was ineffective for omitting an argument that the State withheld the alleged exculpatory surveillance evidence from the grand jury.

In State v. Clark, 260 N.J. Super. 559 (App. Div. 1992), this court set forth the minimum procedure for assigned counsel in a PCR proceeding to follow in representing his or her client. We held that counsel must consult with the client in the early stages of the PCR proceeding. Id. at 563. Counsel must closely inspect the trial record. Ibid. Counsel must also appear at the PCR hearing and inform the defendant of the outcome. Ibid. Counsel is also required to investigate the claims asserted by the defendant and fashion the most effective argument in light of the facts and applicable law. Velez, supra, 329 N.J. Super. at 133; State v. King, 117 N.J. Super. 109, 111 (App. Div. 1971). Furthermore, where the interview with the defendant and review of the trial record yields little to fashion an effective argument for a new trial, counsel must still advance the claims identified by the defendant and fashion the best possible argument in support of those claims regardless of their merit. State v. Rue, 175 N.J. 1, 19 (2002). The Court further directed the procedure counsel must follow at the hearing on the petition as follows:

Thereafter, as in any case in which a brief is filed, counsel may choose to stand on [the brief] at the hearing, and is not required to further engage in expository argument. In no event, however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition.

[Ibid.]

Our review of the record demonstrates that PCR counsel's performance accorded with the requirements for counsel in post-conviction proceedings. PCR counsel was able to fashion an effective argument to establish a prima facie case of ineffective assistance of counsel on the issue of failure to advance a timely and fact-supported duress defense. Judge Garofolo convened an evidentiary hearing. At the hearing, defendant and both attorneys who represented defendant in the pre-trial proceedings and at trial testified.

Defendant's criticism of PCR counsel for presenting defendant as the only witness is unfounded. Defendant must do more than state that counsel should have presented other witnesses. It is incumbent on defendant to identify those witnesses and tender an offer of proof of the testimony and its relevance to the issue at hand. State v. Fritz, 105 N.J. 42, 64-65 (1987). Defendant has not done so.

Furthermore, the transcript of the January 2009 evidentiary hearing belies the contention that PCR counsel was not familiar with the trial record. PCR counsel recognized that to succeed on this claim counsel had to convince Judge Garofolo that defendant's version of the events at trial was credible. While ultimately unsuccessful in convincing the judge that he had communicated information relevant to this defense in a timely manner to allow its development and presentation at trial, the record of this evidentiary hearing demonstrates assigned counsel's recognition of the issue. Defendant testified that he informed trial counsel well before the commencement of trial of the facts of his detention, including the use of force against him and his desire to advance a duress defense. Trial counsel's testimony at the evidentiary hearing and his statements at trial about the timing of defendant's request were to the contrary.

Failure to succeed on the duress defense at the evidentiary hearing does not establish that PCR counsel provided ineffective assistance of counsel. The nature and timing of discussions with pre-trial and trial counsel about the circumstances of his detention and questioning and the defenses suggested by those facts were fact issues to be resolved by Judge Garofolo and turned on his assessment of witness credibility. Finding that defendant's version of events is not credible is not synonymous with ineffective legal representation.

Finally, defendant's contention that PCR counsel was ineffective for not questioning the omission by appellate counsel to raise the failure of the prosecutor to present the casino surveillance tape to the grand jury is also without merit. PCR counsel advanced this argument but the judge correctly found the claim was without legal merit. See State v. Cook, 330 N.J. Super. 395, 411 (App. Div.) (a guilty verdict by a petit jury renders harmless the failure to submit exculpatory evidence to a grand jury), certif. denied, 165 N.J. 486 (2000).

 
We, therefore, affirm the January 2007 order denying defendant's first petition for PCR.

Affirmed.

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A-3974-06T4

December 18, 2009