STATE OF NEW JERSEY v. DONALD KAYHART

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4327-07T44327-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DONALD KAYHART,

Defendant-Respondent.

_____________________________________

 

Submitted November 10, 2008 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 02-08-1005.

Robert A. Bianchi, Morris County Prosecutor, attorney for appellant (Paula Jordao, Assistant Prosecutor, on the brief).

Mitchell Melnikoff, attorney for respondent.

PER CURIAM

By leave to appeal granted, the State appeals from the March 15, 2008 order issued by Judge John J. Harper granting defendant's petition for post-conviction relief (PCR). We affirm.

The salient facts presented at trial that led to defendant's conviction, following jury trial, of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and the imposition of a five-year probationary sentence, are set forth in our earlier opinion, which we recite below:

Eleanor VanHouten, a neighbor of defendant's, testified that as she and her eight-year-old daughter Melissa were walking to her car, defendant took an entrenching tool from the hatchback of his car and began to quickly walk towards them, stating, "I'm going to show you f-ing people I mean f-ing business." He looked angry and seemed ready to hit them with the tool. Fearing an attack, Ms. VanHouten went into the bus company office where she worked and called the police.

Minutes later, Ms. VanHouten and her daughter related the incident to the responding officer, Patrolman Christopher Keezer. The officer went to defendant's apartment where he was invited in. When asked if he had been in the parking lot earlier, defendant said, "[Y]es, and that crazy b- threatened me," identifying Ms. VanHouten. He was also asked if he had brandished an entrenching tool and replied that he had the right to defend himself. Patrolman Keezer asked where the entrenching tool was. Defendant pointed to the tool, which was leaning in the corner of his kitchen.

Defendant testified that the entrenching tool, which he used as a "pooper scooper" and a gardening tool at the cemetery, was kept in the back of his car. The tool became entangled in his golf bag when he placed a package into his car and could not close the door of his hatchback. When he tried to grab the handle of the tool, he fell backwards with it. He denied raising the shovel above his head or directing any words towards Ms. VanHouten or her daughter. He then, however, indicated that he "didn't have any fear of [Ms. Houten] [sic] until she opened her mouth that I was waving a shovel in the air and that I was trying to attack her and her child. . . ."

[State v. Kayhart, No. A-661-03T4 (App. Div. November 3, 2004) (slip op. at 7).]

On appeal, we affirmed the conviction and sentence imposed. Ibid. The Supreme Court denied certification. State v. Kayhart, No. A-661-03T4 (App. Div. November 3, 2004) (slip op. at 7), certif. denied, 183 N.J. 592 (2005). Defendant filed a pro se PCR petition on June 23, 2005 and, with counsel, filed an amended PCR petition on October 24, 2006. An evidentiary hearing was conducted over two days on March 13 and 27, 2007. Thereafter, the State and defendant's PCR counsel submitted written summations.

In a written decision, Judge Harper agreed that most of the asserted bases for PCR lacked merit and reflected "merely second guesses" at pre-trial and trial strategy but found that defendant's contention that his trial counsel was ineffective in "failing to request the [trial court] to conduct a competency hearing, prior to trial, to determine if [defendant was] competent to stand trial or assist in his own defense" merited consideration. The court observed that there was a substantial amount of evidence in the record that revealed defendant's mental state prior to trial. This evidence included defendant's bizarre behavior at the time of his arrest, his admission to the psychiatric ward at Mountainside Hospital sixteen days following his arrest, and conflicting medical opinions concerning defendant's ability to effectively defend himself against the charges either alone or with an attorney. The court concluded:

After consideration of the testimony presented in the evidentiary hearings on this matter, and all of the evidence presented, this Court finds that [defendant] has demonstrated that he received ineffective assistance of counsel under Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] where his trial counsel failed to request the Court to conduct a competency hearing, prior to trial, to determine if [defendant] were competent to stand trial or assist in his own defense.

The State contends that [defendant's] own testimony at the evidentiary PCR hearing supports the position that [defendant] was well oriented to time and space at the time of trial, understood the trial judge's role in the proceeding, and appreciated all the other threshold matters as required under N.J.S.A. 2C:4-4. However, this Court finds that [defendant's] mental state during these recent hearings does not adequately demonstrate the nature of [defendant's] mental state at the time of trial, nor is it sufficient to declare that [defendant] was competent to stand trial nearly five years ago. Dr. Grosso indicated in his report that [defendant] was not cooperating in his treatment at the time of trial, specifically, that [defendant] would only take Stelazine, one of several medications prescribed. Additionally, Dr. Schessler's most recent correspondence indicates that [defendant] "was in the midst of an active bipolar episode prior to, during, and after the 'shovel incident' with attending states of delusion." At a minimum, these professional reports, requested by the Prosecutor's Office and the Court, put [defendant's] trial counsel on inquiry notice with regard to [defendant's] questionable competency to stand trial. These reports, and other pieces of the pre-trial record, should have at least led [defendant's] trial counsel to discover [defendant's] commitment to Mountainside Hospital and the VA Hospital, his psychiatric diagnosis, his refusal to take the prescribed anti-psychotic medication, except Stelazine, at the time of trial, and Dr. Grosso's finding of [defendant's] incompetency to adequately defend himself at trial without the benefit of all prescribed medication.

Altogether, given [defendant's] mental state, as documented by the record, this Court finds that [defendant] deserved the benefit of a competency evaluation, as well as his trial counsel's advocacy in demanding that such evaluation take place, which was absent in this case. [Defendant] should have been required to answer a series of questions in open court in order for the Court [to] place findings on the record and determine whether [defendant] satisfied the standards of competency set forth by N.J.S.A. 2C:4-4.

The present appeal followed. The State contends defendant was competent to stand trial, as evidenced by his own testimony during the trial and other evidence, including the testimony from his trial counsel during an evidentiary hearing before another judge. Defendant's trial counsel testified that he never questioned defendant's mental competency because defendant was able to assist him in preparing a defense by, for example, suggesting that he could not have threatened the victim as alleged because of an orthopedic condition that prevented him from raising his arm above his shoulder. He indicated further that defendant never exhibited any behavior that raised any question about defendant's competency to understand the nature of the proceedings, and that defendant made it clear that he would not plead guilty under any circumstances and that he wanted to present a defense and go to trial.

We have reviewed the record in light of the arguments presented and find that they lack sufficient merit to warrant discussion in a written opinion, and we affirm substantially for the reasons stated by Judge Harper in his written decision of March 15, 2008. R. 2:11-3(e)(2). We add a brief explanation.

The State, in its brief, acknowledges that there were conflicting medical opinions at the time of trial, one from Dr. Joseph Grosso, who first commenced treating defendant in December 2001 at the Veterans' Administration Hospital in Orange. In a report dated October 8, 2002, he opined that defendant "has a paranoid perception about the charges and about the actions of the prosecutor's office. In my judgment he is not competent to provide his own defense nor does he accept the reality of the charges against [him], e.g. [defendant] doesn't see them [the charges] as judicial and proper but sees them [the charges] as sinister and conspiratorial." However, defendant's psychotherapist, Dr. Peter Schessler, opined otherwise. He reported that he had been treating defendant "on and off since 1967." He noted that defendant had been able to become a licensed stock broker and concluded that defendant "is capable of cooperating in his own defense."

The State addresses the conflicting opinions by pointing out that Dr. Grosso had only been treating defendant for less than one year when he rendered his opinion and was unfamiliar with the standards for competency as set forth in N.J.S.A. 2C:4-4, while Dr. Schessler had been treating defendant, albeit "on and off[,]" since 1967. Additionally, as further support for Dr. Schessler's opinion, the State references the testimony of defendant's trial counsel, as well as defendant's own testimony during the PCR hearing.

In our view, the question of whether defendant satisfied the two-pronged standard for post-conviction relief under Strickland v. Washington, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, namely, first establishing that counsel's performance was deficient and, second, establishing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require proof that defendant was incompetent to stand trial. Rather, as Judge Harper reasoned, the inquiry must be whether, at the time of trial, there was sufficient objective evidence of mental disorder to place defense counsel on notice that a competency evaluation was warranted.

Judge Harper found that there was sufficient objective evidence of defendant's mental condition at the time of trial to have placed trial counsel on "inquiry notice with regard to [defendant's] questionable competency to stand trial." We are in complete agreement that the pre-trial record of defendant's commitment to Mountainside Hospital, the VA Hospital, his psychiatric diagnosis, his refusal to take all of the prescribed anti-psychotic medication, together with the conflicting expert reports, were all factors that imposed upon trial counsel a basic advocacy duty to seek a competency evaluation. State v. Fritz, 105 N.J. 42, 53-58 (1987).

The American Bar Association Standards, The Defense Function 4.1 (1971) provides, as follows: "[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty." Relying on that standard, the Third Circuit has held that a defendant is entitled to a complete and vigorous defense, requiring counsel, at the very least, to investigate all substantial defenses available to a defendant. United States v. Baynes, 687 F.2d 659, 668 (3d Cir. 1982). In our view, a complete and vigorous defense includes ensuring that defendant is competent to stand trial. A trial counsel's personal opinion of his client's competency to assist in the preparation of a defense or to stand trial is not dispositive of competency, especially where, as in this case, there is objective evidence from trained professionals that suggests otherwise. Consequently, Judge Harper was under no duty to defer to the opinion of defendant's former trial counsel regarding defendant's competency.

The judge's finding that "defendant deserved the benefit of a competency evaluation" is supported by substantial credible evidence in the record and is entitled to our deference. See State v. Locurto, 157 N.J. 463, 471-72 (1999); see also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Moreover, although we owe no deference to the judge's legal conclusions, In Re J.W.D., 149 N.J. 108, 117 (1997), we discern no legal error in the judge's conclusion that defendant established the elements that were essential to his claim of deficient performance by trial counsel and a reasonable probability that the outcome at trial would have been different but for trial counsel's performance. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Preciose, 129 N.J. 451, 464 (1992).

Affirmed.

Three years after defendant's trial, in a letter dated June 20, 2006 to defendant's PCR counsel, Dr. Schessler stated otherwise: "Mr. Kayhart was in the midst of an active Bipolar episode prior to, during and after the 'shovel incident' with attending states of delusion. Thus, in my judgment, he was unable to perceive reality correctly."

(continued)

(continued)

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A-4327-07T4

December 12, 2008