STATE OF NEW JERSEY v. TROY KELLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4794-06T44794-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY KELLEY,

Defendant-Appellant.

___________________________

 

Submitted May 5, 2009 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-06-0644.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Troy Kelley appeals from an order entered on January 17, 2007, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows. Tried to a jury in 2001, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On April 5, 2002, defendant was sentenced to an aggregate term of eighteen years.

Defendant appealed, and we affirmed his convictions and sentence in State v. Kelley, No. A-5761-01 (App. Div. November 13, 2003) (slip op. at 2). In that decision, we summarized the pertinent trial evidence as follows:

[D]efendant, then age twenty-five, forced intercourse on a young girl whom he was babysitting. The girl was approximately six or seven years old at the time. Throughout trial defendant displayed angry, erratic, and disruptive conduct. He apparently attempted suicide during the trial by taking an overdose of pain pills. Defendant's treating psychiatrist subsequently reported to the court that defendant was alert, oriented, and not currently being treated for depression. In the doctor's opinion defendant's suicide attempt was not a serious one. The trial court postponed trial for a week pending receipt of further information about defendant's condition. On the next scheduled trial date another doctor reported that defendant had been transferred from one hospital to another because of a threat he made against a nurse. The doctor said she was not sure if defendant was psychotic or manipulative and malingering. Defendant denied any suicidal ideation, and expressed a desire to retain another attorney. The trial court again adjourned trial until it was determined whether his commitment would continue. Defendant was subsequently released from the hospital following a commitment hearing. Trial resumed.

For the remainder of trial defendant was evidently unhappy with his attorney's trial tactics. For example, defendant wanted his family to be called as witnesses. Defense counsel explained to the court that he was not calling the family as witnesses because on cross-examination they might incriminate the defendant. When defendant was asked what he thought the family witnesses would testify to he responded, "I don't know what my family would say." The trial judge patiently explored defendant's concerns and defense counsel's rationale for not calling defense witnesses. At one point defendant said, "I would like another attorney. I could go out and get a private lawyer. I have $4,000 in the bank and I'll get me an attorney." Defendant then declined to testify unless his family also testified. The trial court specifically found that defense counsel's decision not to call the witnesses was "a reasonable strategy."

Defendant frequently interrupted the trial with unsolicited comments. For instance, during the jury's deliberation it requested a replay of the victim's videotaped testimony. During that replay defendant interrupted:

THE DEFENDANT: Oh, my god, I would like to take the stand and testify.

THE COURT: Stop the tape.

THE DEFENDANT: I cannot believe this.

THE COURT: All right. Stop the tape. Ladies and gentlemen, would you step inside and please do not discuss Mr. Kelley's remarks.

THE DEFENDANT: I want to take the stand and testify. Oh, my god, I can't believe this, I don't believe it.

(The Jury is being excused.)

THE DEFENDANT: '96, '97, '98, I wasn't living at my mother's house.

THE COURT: Mr. Kelley --

(The Jury is excused at 12:20 p.m.)

THE DEFENDANT: I can't believe this.

THE COURT: All right. Mr. Kelley, you are to remain quiet while this tape is played. If you don't remain quietly I'll remove you from the courtroom, you had an opportunity to testify, you waived that opportunity I took great pains to tell you --

THE DEFENDANT: And, your Honor, in '96, '97, I wasn't living at my mother's house I was in Orange, New Jersey, and I got proof.

THE COURT: Mr. Kelley, if you want to tell your side of the story you had an opportunity to do so it's too late now, the jury is listening to the tape. If you disrupt this jury again I will remove you from the courtroom; do you understand that?

THE DEFENDANT: I'll stay out of the courtroom, do you understand that?

THE COURT: Mr. Kelley, come back.

THE DEFENDANT: I'm going --

THE COURT: I'm ordering you to come back.

THE DEFENDANT: I don't believe this.

THE COURT: Sit at counsel table and I'll talk to you if you want to waive your presence and sit outside.

THE DEFENDANT: Your Honor, no evidence and stuff con --

THE COURT: Mr. Kelley, Mr. Kelley. I would note you started to walk out of the room. Mr. Kelley, if for whatever reason --

THE DEFENDANT: It's not fair, I'm not getting a fair trial, I see this right now, I'm not.

And on it went until defendant decided he was leaving to get something to eat. The replay of the tape was completed and the jury resumed deliberations. Defendant walked back into the courtroom, but left again and did not return. When the jury came back with its verdict a bench warrant was issued for defendant's arrest.

[Id. at 2-6.]

The Supreme Court denied defendant's petition for certification on January 29, 2004. State v. Kelley, 178 N.J. 455 (2004).

On October 11, 2005, defendant filed a PCR petition. Counsel was assigned and filed an amended PCR petition on July 27, 2006. Defendant alleged ineffective assistance of trial counsel for: (1) refusing to present his family members as witnesses, which in turn caused defendant himself to decline to testify; (2) waiving an evidentiary hearing under N.J.R.E. 803(c)27 on the suggestibility of statements made by the victim without first consulting the defendant; (3) waiving a Miranda hearing regarding defendant's statements without first consulting the defendant; and (4) ineffectively conducting cross-examination of the victim. Defendant also raised two sentencing arguments: (1) his sentence was "in excess of what was form[er]ly known as the presumptive sentence[]"; and (2) the court should have considered mitigating factors number eight (defendant's conduct was the result of circumstances unlikely to recur) and number nine (the defendant's "character and attitude . . . indicate that he is unlikely to commit another offense)[.]" N.J.S.A. 2C:44-1(b)(8) and (9).

Defendant's PCR petition was heard by the same judge who had presided over his trial. On January 10, 2007, after hearing oral argument, the judge denied defendant's petition and entered an order to that effect on January 17, 2007.

First, regarding trial counsel's waiver of an N.J.R.E. 803(c)27 hearing, the judge stated:

I would note that [defense counsel] had seen the videotape of the child, that was with [the] investigator . . . . He did not . . . feel that he could put forward any reasonable theory that it had been suggestible or overly suggestible or not trustworthy, and he did not feel that he would have any chance of prevailing, and he's right, because I viewed the tape and it was done appropriately. Indeed [trial counsel] did indicate that when [the] investigator . . . in essence congratulated the child at the end of the tape, he felt that that would be prejudicial in front of the jury. He did raise that, and both sides agreed, and I so ordered that the end of the tape be not played, the last minute or so, . . . where the investigator congratulated the child.

. . . .

That was redacted. . . . And then I told the jury that the last minute or two of the tape contained discussion that had nothing to do with the case. I gave a limiting instruction, so [defense counsel] correctly pointed out that . . . those comments at the end might have been somewhat excessive, and we . . . took that out, so he did challenge that.

Defendant also claimed that he was prejudiced by not having an N.J.R.E. 803(c)27 hearing because "[t]he hearing itself despite the outcome may have resulted in a more favorable plea deal tha[t] would [have] been acceptable to the State and the [d]efendant." The PCR judge responded to this point as follows:

"[I]f you want to plead guilty you have to tell the [j]udge . . . that I did commit this crime, because you don't let anybody plead guilty unless they give you enough information to satisfy the [j]udge that this is a fair plea . . . . So you would have had to tell me you committed the crime, and you have never done anything but adamantly deny it. That's fine if that's your position, but you can't plead guilty, and say I didn't do it.

Regarding defendant's complaint that trial counsel failed to object to replaying the victim's videotaped statement to the jury upon its request during deliberations, the judge stated:

[T]he jury certainly had a right to see the videotaped statement of this child, as the case law has indicated, when the child initially gives the statement. It's very important that the jury see the videotape of the child right around the time that the disclosure happened, because we all know that a year or two years down the line when it goes to court, a child can forget, a child can become confused, and very often a child can grow and be much bigger . . . than the child who was actually giving the statement two years earlier.

The judge then addressed defendant's claim that counsel's waiver of a Miranda hearing constituted ineffective assistance, stating:

I note [defense counsel] . . . noted that most of the Miranda statement is, "I love my niece dearly, and I didn't do anything. I would never do anything[,]" . . . so it was largely exculpatory to begin with, so those portions, if anything, would have given the jury his adamant denial, and I basically said to the prosecutor, if you want to use this at all, and he said, "I'd only use it, if at all, on cross examination, if he takes the stand."

. . . .

The State was not seeking to put it in in [its] case in chief. [Defense counsel] was not challenging it, except for the reference to [a prior] Texas investigation [of other charges against defendant] which I indicated would not be permitted . . . . As it turned out, the prosecutor did not seek to put this in, the defendant never testified, and we never really got that far.

Regarding defendant's claim that counsel failed to call his family members as witnesses, the judge stated:

With respect to not calling the other witnesses [defense counsel] explained that he was very concerned that the other witnesses would establish [defendant's] opportunity to be alone with the child on a number of occasions. He felt that they would do more harm than good, and he also alluded to in the transcript, "and other problems that they could cause." [Defense counsel] indicated he did not believe that these witnesses would be helpful, and quite possibly, or probably could be hurtful, and therefore he did not call these witnesses.

The judge rejected defendant's complaint about the manner in which trial counsel cross-examined the victim, finding:

With respect to cross examining . . . the child, this child was approximately 7 or 8 when she disclosed that it had happened when she was approximately 6. She was approximately 9-1/2 or 10 when she testified. . . . This child did very well in school. . . . This is a child that was involved in many, many activities, and I believe I said at the time of the sentence that this was probably the most articulate child witness of a similar age that I had ever seen in my career. The child was . . . age appropriate articulate, . . . was firm. [Defense counsel] did cross examine her, that she had not said anything for a long time, pointed out a couple [of] little inconsistencies, but quite honestly, watching that child testify, it was clear to me . . . that [defense counsel] wanted to ask some questions, but wanted to get that child off the stand, because that child was an immensely appealing witness to the jury, that was obvious, and was extremely articulate in indicating what had happened to her. The more the child remains on the stand, the more a cross examination question could bring out some answer that almost seals [defendant's] fate.

. . . .

As far as the cross examination of [the child] was concerned, I believe this child, from a defense cross examination point of view, was questioned properly.

Finally, the judge addressed defendant's sentencing arguments:

With respect to the sentence, I found nature and circumstances, I took pains to indicate that I did not -- was not double counting elements, that I noted that this was an offense of penetration of a child under the age of 13. However, when a child is approximately 6, the child is so young and so vulnerable that I believed without double counting, I could find nature and circumstances which I did. The Appellate Division affirmed that.

In terms of risk of committing another offense, I . . . noted at the time that the defendant in the P[re-]S[entence] I[nterview] admitted to five marijuana cigarettes a day. In the Anne Klein report which was attached, he said, "I smoked thirty marijuana cigarettes a day for many, many years[,]" and it talked about the many difficulties with his mental condition. He indicated, "Sometimes I hear voices", his erratic behavior. I felt this defendant was an enormous risk to commit another offense, and I so stated, and I still believe that today.

As far as need to deter, it's no question, the defendant needs to be deterred, as does the general community in terms of any offenses of this nature.

As far as the mitigating factors, the hardship on his own dependants, he indicated he had a daughter and a son. I found that . . . he had very little prior record. That was absolutely noted. However, I felt the aggravating factors qualitatively were so strong in this case, and this offense was so heinous, that I was going to sentence him to the higher end of the first degree range. The first degree range is 10 to 20. I sentenced him to the 18 years.

On appeal, defendant raises the following contentions for our consideration.

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL AND POST-CONVICTION RELIEF ATTORNEY IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS

A. TRIAL COUNSEL IMPROPERLY WAIVED THE EVIDENTIARY RULE 803(c)27 HEARING WITHOUT CONSULTING WITH AND OBTAINING THE CONSENT OF HIS CLIENT. (Partially Raised Below)

B. TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PLAYBACK OF A.C.'S VIDEOTAPED PRE-TRIAL INTERVIEW DURING JURY DELIBERATIONS AND PCR COUNSEL'S FAILURE TO RAISE THIS ISSUE IN THE PCR COURT BELOW CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised below)

C. TRIAL COUNSEL'S DEFENSE STRATEGY WAS DEFICIENT BECAUSE HE FAILED TO CALL WITNESSES AND PRESENTED NO DEFENSE FOR HIS CLIENT.

POINT II

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS POST-CONVICTION RELIEF ATTORNEY IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

A. PCR COUNSEL DID NOT RAISE THE ISSUE OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PLAYBACK OF A.C.'S PRE-TRIAL INTERVIEW TO THE JURY DURING DELIBERATIONS.

B. PCR COUNSEL DID NOT PRESENT THE PCR COURT WITH CERTIFICATIONS FROM THE DEFENDANT'S PROPOSED WITNESSES AS PART OF THE PETITION.

C. PCR COUNSEL FAILED TO RAISE THE ISSUE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT III

THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE AND OTHER ISSUES RAISED IN THE DEFENDANT'S POST-CONVICTION RELIEF PETITION.

POINT IV

THE SENTENCE IMPOSED WAS ILLEGAL AND MUST BE VACATED.

A. COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT ADVOCATE FOR THE DEFENDANT AND FAILED TO ADDRESS THE MITIGATING FACTORS IN THIS CASE.

B. THE SENTENCING COURT GAVE TOO MUCH WEIGHT TO THE AGGRAVATING FACTORS WHILE IMPROPERLY DE-EMPHASIZING THE MITIGATING FACTORS.

POINT V

THE JUDGE WHO DECIDED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION SHOULD HAVE DISQUALIFIED HERSELF BECAUSE SHE HAD PREVIOUSLY PRESIDED OVER THE DEFENDANT'S TRIAL AND HAD IMPOSED SENTENCE UPON THE DEFENDANT THEREBY COMPROMISING THE ABILITY OF THE LOWER COURT TO BE IMPARTIAL. (No[t] Raised Below).

POINT VI

REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS AND INEFFECTIVENESS OF COUNSEL AT THE TRIAL AND PCR PHASES.

Having reviewed these contentions in light of the record, we are convinced they are without merit. We affirm substantially for the reasons stated by Judge Marilyn C. Clark in her decision rendered from the bench on January 10, 2007. R. 2:11-3(e)(2).

Defendant's PCR petition also contained a general complaint that defense counsel was ineffective for failing to discuss trial strategy with him at each stage. On this point, the judge noted:

[T]he entirety of the transcript in my opinion . . . represents an enormously difficult person to deal with in the case of [defendant], and [defense counsel] has indicated in the transcript, "I've tried to explain it to him, I've gone over the case, I've interviewed these family witnesses several times, I've tried to explain to him. In my opinion, this is strategy, that I'm doing the best I can for him."

We are satisfied that the judge's reasons for denying each of defendant's PCR claims are adequately support by the record. We add only the following brief comments.

With respect to the issue involving his family members as witnesses, we note that at no time has defendant proffered any evidence as to what testimony those witnesses would have offered had they been called to testify; nor does he dispute trial counsel's statements regarding concerns that such witnesses would, in fact, prejudice him by their testimony. We further reject defendant's claim that PCR counsel was ineffective for failing to produce certifications from proposed witnesses in his PCR petition; defendant failed to identify any witnesses from whom PCR counsel should have obtained such certifications or how such testimony would have been helpful to his case.

Finally, defendant argues that the PCR judge should have been disqualified because she presided over his trial and sentencing. This issue is raised as plain error. Defendant contends that because he has raised the issue of ineffective assistance of counsel, this "by implication, calls into question the role of the judge who was a vital part of the trial process and who rendered an opinion in the action by imposing sentence upon the defendant." We find this issue to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We are satisfied that defendant has failed to meet the two-pronged test for establishing ineffective assistance of trial or PCR counsel; he has not "show[n] that counsel's performance was deficient," and consequently is unable to demonstrate "that counsel's errors were so serious as to deprive [him] of a fair trial. . . . ." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Having failed to make a prima facie case of ineffective assistance of counsel, defendant was not entitled to a plenary hearing on his claims. State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-4794-06T4

RECORD IMPOUNDED

August 18, 2009