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State v. Kelley

August 18, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TROY KELLEY, DEFENDANT-APPELLANT.



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

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2009

Before Judges Parker and LeWinn.

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 baby-sitting. 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 ...


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