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NOT FOR PUBLICATION WITHOUT THE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-4875-06T44875-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LESTER DENMON,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 15, 2008 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 98-04-0812.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ingrid A. Enriquez,

Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi,

Assistant Prosecutor, of counsel and on

the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

This is an appeal from a remand hearing ordered by us as a result of defendant's petition for post-conviction relief. (PCR). The narrow issues presented on the remand and for our consideration are whether defendant Lester Denmon's co-conspirator James Chester was dressed in prison garb at the time he testified for the State at defendant's trial and if so, whether that circumstance was so prejudicial that it necessitates a reversal and a new trial. We conclude that the answer to the first question is in the affirmative, Chester was dressed in prison garb, but because the failure to object to Chester's appearance was part of defendant's trial strategy, we answer the second question in the negative. Accordingly, we affirm.

We have previously set forth the relevant facts describing the criminal offenses at issue, and we incorporate our earlier comments by reference to our opinion in State v. Denmon, 347 N.J. Super. 457, 461-63 (App. Div. 2002), certif. denied, 174 N.J. 41 (2002). We only note that this case involved a kidnapping and armed robbery with a handgun (together with related offenses) of an elderly couple resulting in the theft of cash and credit cards. Defendant and Chester then embarked on a buying spree utilizing the credit cards, signed by defendant who was easily identified as the credit card purchaser.

After his unsuccessful direct appeal (except for a remand for resentencing), defendant filed his PCR. That, too, was generally unsuccessful except for the remand for consideration of the issue of Chester's clothing while a witness.

On remand, the judge, who was the original trial judge, conducted a hearing including defendant and his attorney at the original trial. He first reviewed the relevant portion of the transcript of the original trial which stated:

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 cloth[e]s for him. I don't care what he has on. He has to come up here. Now, if he comes up here with a jumpsuit, I mean they know he is incarcerated.

[THE PROSECUTOR]: They will know.

THE COURT: Do you have a position on that?
 
[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.

. . . .

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).]

At the remand hearing, the judge then heard testimony from defense counsel and defendant. After hearing that testimony, the judge made the following findings:

This is the matter of Lester Denmon. It's a PCR that was reviewed by the Appellate Division, but the one issue of whether Mr. Chester testified in prison garb was sent back to this Court to decide whether or not his testifying in prison garb, if that be the case, would brand his attorney ineffective, and whether that ineffectiveness affected the outcome of this trial under the appropriate case law, the Strickland [v. Washington] case, 466 U.S. [668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1966)] and even State v. Preciose, [ 129 N.J. 451 (1992)] where I need to have a further plenary hearing to determine whether there's ineffectiveness of counsel.

For the purposes of this hearing, I judicially notice, more or less, that Mr. Chester didn't testify in civilian clothes, testified in prison garb, so that we could have the plenary hearing that I thought would be necessary in accord with the Appellate Division's decision, and ordered [defense counsel] to be here as a Court's witness. He testified as an experienced attorney admitted to the bar in the last [sic] 70s, and then he had tried a number of cases prior to this case, jury cases involving criminal defendants, more than he could even estimate.

And with that proviso, indicated that though he had no specific recollection of Mr. Chester testifying in prison garb or not, taking the Court's position that he did testify in prison garb, and even though he had no specific recollection of whether or not he testified in that prison garb manner, he did have some recollection, even though it may not have been a direct one, of the reasons why based on the assumption that he testified in prison garb.

I don't find there to be any merit to the fact from defendant's argument that because he doesn't have a specific delineated recollection that his recollection should be discounted. His position was that I would have done that based up X, Y and Z, as he testified, and the strategy being that Mr. Chester was a jailbird, so to speak. He wanted the jury to know that. And that was bolstered by what was read to him from the transcript where I would welcome that or I would like that comment by [defense counsel] when the Court asked him do you have a position on Chester testifying in prison garb.

I am satisfied that the comment and the testimony under oath by Mr. Denmon are self-serving. They add nothing to this case, especially in light of the fact that the admission was placed on the record by Mr. Denmon that he was concerned and the only reason he testified was because he wanted to refute (indiscernible) testimony that they were in jail together, which very frankly would have no bearing on whether Chester testified in prison garb or in a business suit. Because if he testified they were in prison together and that was the reason why Denmon testified, then he would have testified anyway.

Having been the trial judge in this trial, I can say conclusively that Mr. Denmon took the stand in this case without having the benefit of whatever discussions were between him and his attorney to refute the charges, which he did do on the stand under oath at a lengthy period of time. My recollection is clear that his taking the stand was to testify. It had nothing to do with the circumstance of the breaking into the house in Teaneck involving he and Mr. Chester, with respect to the Scotts (phonetic), I believe their names were.

His testimony today that he testified solely to indicate that he was in jail because of child support and for no other reason other than the fact it was mentioned by Chester has about as much merit as my having lunch tomorrow at 12 noon with Frank Sinatra, who the record should note has been dead for about six years. No merit whatsoever. It's self-serving. It adds nothing to this case other than the fact that Mr. Denmon, to use the phraseology of his attorney, who did a good job in this case, welts [sic] to Monday morning quarterback and that is not what a PCR is about.

In this particular case, I am satisfied clearly, without any doubt that [defense counsel] represented Mr. Denmon in a workman-like manner, did a yeoman's job for him, tenacious is not the word from my own recollection of this trial, which took a month. But that with respect to the issue of having Chester testify in prison garb, showing the jury that this man, who I believe had convictions back to the late 40s for confidence schemes -- that's what was on his rap sheet when he was cross examined by [defense counsel] -- that having him testify in prison garb would demonstrate to this jury that his strategy was to show that Mr. Chester was not telling the truth, that Mr. Chester was a liar, that Mr. Chester was not somebody who they should believe.

Because Mr. Chester -- and I want counsel to bear this in mind. I'm going to read now or state now -- Mr. Chester was such an essential witness here at Mr. Denmon's trial that he appeared before the jury in prison garb, which I judicially noticed that he did -- there could be a spill over of prejudice to the defendant. That's true. That's the reason we're here.

On the other hand, having Chester testify in prison garb could have worked to defendant Lester Denmon's strategic advantage in his effort to portray Mr. Chester as a lying felon. Defendant's own counsel, and that would be [defense counsel], clearly wanted Chester to be attired in prison garb, as reflected by the quote that I read into the record before, "Yeah, I like the idea."
 
Of course, we wouldn't be here if Mr. Chester testified in civilian clothing because the only issue for today is whether or not [defense counsel] failed as a prudent attorney and becomes ineffective because of that. And what I just read you, by the way, is not my words. They were -- that's a quote form the Appellate Division decision of Justice Payne and Judge Sabatino on Page 9, word for word.

For purposes of this particular hearing, I am satisfied that [defense counsel] functioned as a prudent attorney, that he is not in any way, shape or form ineffective by having Mr. Chester testify in prison garb. And that as a result of that, it was a strategy decision. As I read a case in another matter earlier this afternoon, State v. Castagna, 187 N.J. 293 [2006], attorney's performance will be assessed not on the facts relating to a single issue, but on the totality of his performance in combating the State's evidence.

Strategies are often created and modified on the fly such as this one because [defense counsel] certainly would have had no pre-notice that Mr. Chester wasn't going to come dressed as a civilian because of the fact that the clothing he was given apparently were five sizes too small. So talk about on the fly, underscored in this case. And neither strategic miscalculations nor trial mistakes are sufficient to warrant reversal, except in rare instances where they are of such a magnitude as to thwart the fundamental guarantee to a fair trial. That is so far distant from this case that you can't see it.

As the courts have so often said in the past and I underscore here the defendant is only guaranteed a fair trial, not a perfect one, Mr. Denmon got more than a fair trial here. The application with respect to this last portion of the PCR, I render the decision at this point that [defense counsel] was not ineffective by virtue of Mr. Chester testifying in prison garb. Therefore, the PCR is denied on that issue.

[(Emphasis added).]

On appeal, from this determination, defendant argues:

I. NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

a. Trial Counsel Was Ineffective In Allowing Co-Defendant "Chester" To Testify At Trial While Wearing Prison Garbs.

b. Defendant Was Prejudiced By The Ineffective Assistance Rendered By Appellate Counsel.

II. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

Defendant in a pro se supplemental brief also argues:

I. ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER- [1] PARAGRAPH (a) CONFERS UPON THE CLIENT THE ULTIMATE AUTHORITY TO DETERMINE THE PURPOSE TO BE SERVED BY LEGAL REPRESENTATION, WITHIN THEE [sic] LIMITS IMPOSED BY LAW AND THE LAWYER'S PROFESSIONAL OBLIGATION.
 
II. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
 
III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
 
IV. THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

Our standard of review of PCRs is dominated by not only determining whether the factfindings were supported by sufficient credible evidence, State v. Arthur, 184 N.J. 307, 320 (2005); State v. Locurto, 157 N.J. 463, 471 (1999); State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003), but our consideration of the trial judge's determinations of witness' credibility. State v. Lasane, 371 N.J. Super. 151, 162 (App. Div. 2004). "We are obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses, an opportunity that we appellate judges are not afforded." State v. Sheika, 337 N.J. Super. 228, 238-39 (App. Div.), certif. denied, 169 N.J. 609 (2001).

Our review does not end there, for in specifically reviewing ineffective assistance of counsel cases, we must be highly deferential and must not allow hindsight to influence our decision. Arthur, supra, 184 N.J. at 318-19; State v. Norman, 151 N.J. 5, 37 (1997). See also Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984). Further, since it is inherently difficult to evaluate "defense counsel's tactical decisions from his or her perspective during trial, 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955))). In other words, "'the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."'" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95 (quoting Michel, 350 U.S. at 101, 76 S. Ct. at 164, 100 L. Ed. at 93)).

The first issue, of whether Chester was wearing prison garb while he testified is settled, as the judge took judicial notice that Chester was in fact wearing prison garb during his testimony before the jury. The issue of whether or not failing to object to Chester wearing prison garb on the stand constitutes ineffective assistance of counsel dominates our consideration of this appeal.

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, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, 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), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

In assessing the first prong, a court must determine whether counsel's conduct falls outside of the parameters of competency considered in light of all of the circumstances of the case. State v. Castagna, 187 N.J. 293, 314 (2006). Defendant must demonstrate that counsel's action "did not amount to sound trial strategy." Ibid. As the Supreme Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule,, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).]

The thrust of defendant's argument is he did not receive a

fair trial because the State's witness' prison garb unfairly influenced the jury in that it implied guilt by association with defendant. Defendant argues he received ineffective assistance of counsel because defense counsel failed to object to the State's witness taking the stand in prison garb.
As we previously noted, "[f]irst, the defendant must show counsel's performance was deficient." Fritz, supra, at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The judge held defense counsel did indeed provide adequate assistance.

The issue of effectiveness in the judge's decision focused on whether the decision to object to the prison garb was trial strategy. We are satisfied that trial strategy was the dominant consideration in allowing Chester to testify wearing prison clothes. In order to satisfy the first prong under Strickland, defendant must show "'that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting Castagna, supra, 187 N.J. at 314). Although the parameters of such conduct are not easily defined, "'there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and that, to rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy.'" Ibid. (quoting Castagna, supra, 187 N.J. at 314) (emphasis added). Critically important to the analysis is that the conduct must be judged "on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 366-67 (quoting Castagna, supra, 187 N.J. at 314).

The Court's language in Allegro is noteworthy in the context of this case.

[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Id. at 367 (emphasis added).]

Defendant argues that allowing Chester to take the stand in prison garb "demonstrated that trial counsel failed to take any strategic role to advance his client's position and more importantly, protect his client from undue prejudice," relying on State v. Artwell, 177 N.J. 526 (2003) and State v. Russell, 384 N.J. Super. 586 (2006). Both cases address the issue of witnesses wearing prison garb and/or shackles before a jury in a criminal case.

In Artwell, the Court held that, "[g]oing forward, we . . . require that defense witnesses no longer appear at trial in prison garb because that practice advances no essential state interest." Artwell, supra, 177 N.J. at 530. The Court reasoned that "the right to a fair trial requires that trial courts allow inherently prejudicial practices 'only where justified by an essential state interest specific to each trial.'" Id. at 534 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 1345-46, 89 L. Ed. 2d 525, 534 (1986)). Further, the Court cautioned against creating circumstances where "an unacceptable risk is presented of impermissible factors coming into play." Ibid. (citing Holbrook, supra, 475 U.S. at 570, 106 S. Ct. at 1346-47, 89 L. Ed. 2d at 534 (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 1693, 48 L. Ed. 2d 126, 131 (1976))).

We had previously concluded in State v. Damon, 286 N.J. Super. 492, 498-99 (App. Div. 1996), that "a trial court may not require a defendant to appear before the jury in restraints absent compelling reasons." Artwell, supra, 177 N.J. at 534. In State v. Carrion-Collazo, 221 N.J. Super. 103, 112 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988), we found the right to a fair trial "precludes the State from requiring that a defendant appear at trial in distinctive prison garb." Artwell, supra, 177 N.J. at 534-35. These cases supported the Court's reasoning in Artwell, that "'concomitant to the defendant's right to appear before the jury without physical restraints is his right to have his witness appear that way also.'" Id. at 535 (quoting Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982)). As we noted in State v. Smith, 346 N.J. Super. 233, 239 (App. Div. 2002), "while shackling a defense witness is not the exact equivalent of shackling the defendant, in some circumstances . . . the resulting prejudice can be equally detrimental." Artwell, supra, 177 N.J. at 536.

The Court commented on the impact of the prison garb. "Unlike the use of restraints, requiring a witness to testify in prison clothing furthers no vital State interest. Instead, that practice only prejudices a defendant both by undermining his or her witness's credibility and suggesting a defendant's guilt by association." Ibid. (emphasis added) (internal citation and quotation marks omitted). In essence, the Court raised the critical concern of when strategy must be considered conduct that cannot be tolerated notwithstanding the motivating force. Strategy can be a double-edged sword. While defense counsel may have used strategy to undermine the credibility of Chester to his client's advantage, counsel may have also incidentally allowed the jury to perceive "guilt by association" between defendant and his former co-defendant to his client's disadvantage. While Artwell addressed the concern in the context of a defense witness, the issue was soon expanded to address prosecution witnesses.

In State v. Russell, 384 N.J. Super. 586 (App. Div. 2006), we addressed the issue of a prosecution witness and said:

[W]e find that the appearance before the jury of a witness for the prosecution (defendant's alleged coconspirator) in handcuffs and leg shackles, in the absence of an evidentiary record establishing that security concerns posed by the witness outweighed the potential prejudice caused by his appearance in restraints, denied defendant his right to a fair trial under the Federal and New Jersey Constitutions.

[Id. at 589-90.]

In Russell, defendant and a co-defendant, Muhammad, armed with knives, broke into an apartment occupied by a man and a woman defendant knew. After the break-in, the male tenant was able to visually identify defendant. Shortly thereafter, defendant was arrested. After the arrest, Muhammad confessed to police, entered into a plea agreement and agreed to testify against defendant.

During defendant's trial, Muhammad testified while wearing prison garb, leg restraints and hand restraints. Unlike here, defense counsel objected to Muhammad's dress, the objection was overruled, and the judge deferred to the sheriff's officers as to whether or not Muhammad should be shackled inside the courtroom. During Muhammad's direct testimony, his guilty plea, his potential six year prison sentence, the fact the sentence was conditioned upon his testimony and that he was awaiting sentencing were disclosed to the jury.

In Russell we addressed the difference between Artwell and Russell, and observed that despite the fact that Muhammad was a State's witness testifying in prison garb, that fact may not have less of a prejudicial impact than a defense witness in prison garb as in Artwell. We said: "the court as an [sic] legal institution must be concerned when the import of the testimony of any witness, whether on behalf of the defense or the prosecution, can be judged in part by the witness' status, rather than solely by its content and credibility." Id. at 596.

The present case is distinguishable. First, in Russell, defense counsel objected to the witness testifying both dressed in prison garb and shackled. Denmon's counsel never objected and in fact said, "[y]eah, I like the idea," when confronted with the possibility of State's witness testifying against defendant in prison garb. Further, the judge even anticipated that defense counsel would welcome the idea of State's witness testifying in prison garb as he responded by saying "I thought you would like [it]." Finally, no shackles were involved here.

In Russell, we cited a Washington Supreme Court decision and observed:

We note that conclusions similar to ours with respect to prison garb and restraints upon State's witnesses have been accepted by the Washington Supreme Court in its lengthy opinion in Washington v. Rodriguez, 146 Wn.2d 260, 45 P.3d 541 (2001), a case cited favorably in Artwell in connection with its discussion of defense witnesses. 177 N.J. at 536, 832 A.2d 295. In Rodriguez, which like the present matter concerned a participant in the crime who testified pursuant to a plea agreement against the defendant while in prison garb, handcuffs and leg shackles, the Court held that "to fully protect the defendant against being convicted by impermissible factors rather than solely by the evidence, the rule against physical restraints, without a showing of necessity, must apply to all inmate witnesses." 45 P.3d at 545. The Court advanced, as a reason for the prohibition of prison garb and restraints other than the effect on the witness' credibility the fact that:

The witness in this case, while clad in clothing clearly denoting guilt and his status as a prisoner, testified to a criminal association with the defendant. This associated guilt and prisoner status had the potential to prejudice the presumption of innocence to which the defendant was entitled.

[Id. at 544.]

Similarly, Muhammad's appearance undeniably prejudiced defendant, since it provided visual reinforcement to other evidence of his guilt, and suggested to the jury that the State regarded the crime committed to have been of sufficient violence to justify the use of substantial and cumbersome restraints. Reversal is thus required.

[Russell, supra, 384 N.J. Super. at 599-600.]

Critically important, in Rodriguez, counsel did not raise an objection to the witness' prison garb at trial. See Russell, supra, 384 N.J. Super. at 600 n.5 (noting "[t]he Rodriguez Court affirmed defendant's conviction, but only because it found that the defendant did not object to the witness' appearance and failed to demonstrate that only a new trial could have cured the prejudice caused by it"). The Washington Supreme Court anticipated this issue in its decision to affirm Rodriguez' convictions.

In this case, if Rodriguez had objected before Ojeda testified, the court would have had an opportunity to weigh the considerations involved. If the court concluded that the witness was improperly dressed and restrained, it could have corrected the problem and admonished the jury, reducing or eliminating the potential for prejudice arising from the jury's view of Mr. Ojeda in jail garb, handcuffs, and shackles.

We believe that requiring a timely objection in the circumstances here is appropriate because in some instances the defense may anticipate some tactical advantage from having a State's witness testify in restraints. In such an instance, the defense should not be allowed to second-guess its own tactical decision by an after-the-fact objection. Here, Rodriguez argues that Ojeda's appearance took him by surprise and that his failure to make a timely objection was justified. Assuming Rodriguez is correct, we nevertheless believe that an appropriate curative instruction, even after Ojeda's testimony, could have ameliorated any prejudice caused by Ojeda's appearance. Ojeda testified that he had pleaded guilty to delivering the cocaine that Rodriguez later allegedly sold to the police informant, Suarez. In exchange for his plea, Ojeda testified, the prosecutor agreed to recommend his deportation instead of a jail sentence. Rodriguez does not dispute the admissibility of this testimony. Thus, the jury knew Ojeda had been convicted and that he would not be sentenced to jail, but deported. Under these circumstanced a caution to the jury regarding Ojeda's appearance would have been sufficient.

We conclude that the defendant has failed to carry his burden of demonstrating that a new trial was mandated in this case.

[Rodriguez, supra, 146 Wn. 2d at 271-72; 45 P.3d at 546-47 (emphasis added).]

This recognition that defendants may tactically benefit from the conduct proscribed by Artwell or Russell gives us pause especially in the factual context of this case. Here, defendant actively agreed to have Chester testify in prison garb. He was staking the decision on the impact of such appearance not on his association with Chester but the impact of such appearance on Chester's credibility. It may not have been a successful strategy, but it has a reasonable basis. Once employed it cannot provide a basis for relief for defendant on this PCR. Even if defendant could prove that defense counsel was deficient during trial, defendant must still prove the second prong of prejudice. That prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52. In order to prove prejudice, defendant must show the "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006) certif. denied, 192 N.J. 66 (2007). "[T]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached." Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 315).

Our analysis requires that we closely and carefully examine what was before the jury as it assessed the guilt of defendant. The State produced the receipts from all of the locations defendant used the stolen credit card; the police found several bottles of liquor and two quarts of oil (items purchased with the stolen credit card) in defendant's car; an employee at one of the stores identified defendant in a photo array as the one who purchased a TV; a locksmith identified defendant as the man she helped several weeks prior when he locked his keys in his car which happened to be parked outside the elderly couple's home; and lastly the State produced Chester, whose entire story corroborated that of the elderly victims. Denmon, supra, 347 N.J. Super. at 462-63. All of this was presented to the jury, with or without Chester in prison garb.

We now examine whether the prison garb influenced the decision so that there is a "probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52. We answer that in the negative. On direct examination, Chester's entire criminal history was presented to the jury by the prosecutor. Further, defense counsel thoroughly cross-examined Chester on all of these charges, and the plea agreement that he struck with the prosecutor's office. The jury knew that Chester was incarcerated, whether in prison garb or not, because the jury heard on direct examination that Chester was still awaiting sentencing and had entered into a plea agreement.

In sum, the proofs against defendant were overwhelming. Even if the judge erred in allowing Chester to testify in prison garb notwithstanding defense counsel's affirmative acquiescence, we are of the view that the result would have been the same.

Lastly, we reject defendant's statement that he testified only because Chester was in prison garb. His concern was that Chester had testified that he and defendant were "locked in the same barracks." Denmon stated "I had no intention of taking the stand until the man mentioned I was in jail with him" and that he would not have taken the stand if he had said that same statement with civilian clothes on. This conclusion makes little sense and as the judge stated, was self-serving. As did the trial judge, we reject defendant's assertion.

Finally, we deem defendant's arguments regarding the ineffectiveness of appellate counsel to be without merit likewise after review of defendant's supplemental pro se brief we find these arguments repetitious and also without merit. R. 2:11-3(e)(2). Our remand was limited to the issue of Chester testifying in prison garb and not an opportunity to raise new issues for the first time. See R. 3:22-4.

Affirmed.

The Supreme Court is examining whether the holding in Artwell should be extended to apply to witnesses for the prosecution. State v. Kuchera, 195 N.J. 417 (2008) (granting certification).

Our disposition makes it unnecessary to address the issue of retroactivity of the rule of law announced in Russell or the issue of ineffectiveness of counsel in not anticipating the new rule of law.

(continued)

(continued)

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A-4875-06T4

March 11, 2009