On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-07-1499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Cuff and Waugh.
Defendant James Keitt appeals from the denial of his petition for post-conviction relief (PCR). He is serving an aggregate term of fourteen years with a five-year period of parole ineligibility following his 2001 conviction of theft from the person and escape. We affirm.
The theft and escape offenses occurred in an Atlantic City casino. The events of Mother's Day 2000 were captured on surveillance videotapes. Defendant insisted at trial and on direct appeal that his indictment should have been dismissed because the surveillance videotape contained exculpatory evidence, therefore, the prosecutor was obliged to present it to the grand jury, but did not do so. Defendant also argued that the judge, who decided the motion to dismiss the indictment, erred because he failed to view the videotape.
Defendant also argued at trial, on direct appeal, and in his petition for PCR that he should have been permitted to present the defense of duress. The trial judge denied the application to present a duress defense because defendant had not complied with Rule 3:12-1. On direct appeal, defendant argued that the trial judge erred in denying this request. In our opinion, we noted that the request to present the defense was raised on the third and last day of trial and that the request "lacked the specificity required to persuade the trial judge that the defense of duress may have merit." State v. Keitt, A-5014-00 (App. Div. Oct. 9, 2002) (slip op. at 5-6). The Supreme Court denied certification. 175 N.J. 430 (2003).
In his petition for PCR, defendant argued that trial counsel provided ineffective assistance of counsel because he failed to conduct an adequate investigation to support a duress defense. Defendant also argued that trial counsel failed to present any evidence at sentencing of defendant's extensive gambling, alcohol and substance addictions and his prospects for rehabilitation. Defendant also argued that the prosecutor never offered him a plea agreement and his conduct did not provide a basis for an extended term of imprisonment.
Judge Garofolo held defendant presented a prima facie case of ineffective assistance of counsel on the issue of the presentation of the duress defense and ordered an evidentiary hearing on that issue. He denied relief on all grounds.
At the evidentiary hearing on January 18, 2007, the State presented the testimony of Charles Jurman, an Assistant Deputy Public Defender, and Lee Hughes. Both had represented defendant at the trial level; Hughes served as trial counsel. Defendant testified in support of his petition. Defendant testified that he spoke with Jurman and "presented to him information to prepare a motion to dismiss and I laid out the foundation on which issues I wanted to raise and . . . he raised pretty much all of it, but none of it about the duress issues. . . ." Defendant testified that he presented the duress issue to Hughes when Hughes first visited him at the justice facility. The next time he discussed the issue with Hughes was at trial.
Jurman testified that he could not recall whether defendant spoke to him about the duress defense. He had no recollection of defendant advising him that troopers had used force against him when he was returned to the casino, detained and questioned by them. Nevertheless, he would have reviewed the file, made a note in the file and notified the prosecutor, if he believed it was a viable defense.
Hughes, defendant's trial counsel, testified that defendant did not mention the defense to him prior to trial. When presented to him during trial, he did not believe the facts of the case presented a situation that warranted presentation of the defense. Defendant insisted vehemently during trial that the defense should be raised and Hughes did so at defendant's request.
Judge Garofolo found defendant's testimony unbelievable and found the testimony of Jurman and Hughes credible. The judge stated "the testimony on its face . . . is sufficient to cause this court to have serious doubt that the defendant's claim of having told his attorneys ...