On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 02-08-1005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2008
Before Judges Lisa and Sapp-Peterson.
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 ...