On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-04-0812.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Carchman and Sabatino.
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.
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 ...