On appeal from the Superior Court, Law Division, Hunterdon County.
Furman and Cohen. The opinion of the court was delivered by Furman, P.J.A.D.
Defendant appeals from the denial of his petition for post-conviction relief under R. 3:22. He had been convicted in 1976, following a jury trial, of rape, N.J.S.A. 2A:138-1; breaking and entering with intent to rape, rob or kill, N.J.S.A. 2A:94-1; threat to kill, N.J.S.A. 2A:113-8; robbery, N.J.S.A. 2A:141-1; and robbery while armed, N.J.S.A. 2A:151-5. His aggregate sentence was an indeterminate term with a 30 year maximum to Avenel, to be followed by a State Prison term of not less than 32 years nor more than 47 years.
The thrust of defendant's appeal is that the State prior to trial withheld exculpatory evidence material to his defense notwithstanding his demand for production of relevant evidence from the State's file, in violation of his constitutional due process rights as defined in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). That evidence would have been a blood test result on semen from another rape committed about a month earlier and about ten miles away, which would have tended to exculpate defendant of that rape. Neither defendant nor any other suspect was ever charged with the earlier rape. Defendant's theory is that the two rapes were "signature crimes" with virtual identical modi operandi, which must have been committed by the same person. See State v. Garfole, 76 N.J. 445 (1978). Defendant and his counsel were not informed by the State of the blood test result from the earlier rape until 1985.
Both rapes occurred in Hunterdon County, the first on October 17, 1974, a Thursday, starting about 1:30 A.M. in Flemington;
the second on November 21, 1974, also a Thursday, starting about 2:30 a.m. in White House Station. The victim in the first was L.O.; acts of perversion were also committed involving her husband, and a family dog. The victim in the second was E.E., who was alone in her house except for her three sons.
The State's case was circumstantial but strong that defendant was guilty of the E.E. rape. Within about five minutes after the perpetrator left E.E.'s house, defendant's car was observed by a police officer about three tenths of a mile away, stopped partially in the roadway at the intersection of Routes 22 and 523 with its parking lights on and the driver's door open. At that time, the police officer had no information about the E.E. rape. He circled back, keeping the stopped car in sight. He then saw defendant walking in front of the car. Among other reasonably inferable possibilities, defendant had driven his car a short distance from somewhere nearer the E.E. home and then stopped his car to go outside to urinate.
The police officer smelled alcohol on defendant's breath, conforming to E.E.'s description of her assailant to another police officer a few minutes later. He observed a pair of brown gloves and a flashlight in the car and found several dollars in change on defendant's person and a knife in his pants' pocket; all four items conformed to E.E.'s later account of what her assailant was wearing, had with him and had taken from her. Two back-up police officers arrived. The police officers at the scene heard a dispatcher report of the nearby rape and robbery over the patrol car radio. One of the three police officers left to question E.E. During the rape, E.E.'s head had been covered with a paper bag; she did not see her assailant's face. Nevertheless, in numerous significant details in addition to the items already mentioned, E.E.'s physical description of her assailant, his clothing, what he had with him and what he had taken from her matched what the police officers observed and found at the scene of the motor vehicle stop. Defendant was about 5'9" tall, of a heavy build and with a "wide" mustache. He was wearing dark pants and a waist-length jacket. His
pants had a belt buckle. E.E. reported that two twenty dollar bills folded in half twice were taken from her. Two twenty dollar bills folded in half twice were found in defendant's wallet.
In addition, there were semen spills on defendant's pants near the fly and on his T-shirt. His penis was uncircumcised, as E.E. had reported of her assailant. Soil samples on his shoes matched the soil outside E.E.'s house, according to microscope visual examination. Animal hairs on his clothing were consistent with E.E.'s dog's. E.E. later stated that defendant's jacket and belt buckle felt like the jacket and belt buckle she had touched during her rape.
Even prior to the E.E. rape, defendant had been a suspect in the rape a month earlier. He had two prior convictions of rape. He had moved recently within 100 yards of L.O.'s house. Later in the same day as the E.E. rape, the Flemington police obtained a search warrant to search defendant's house for evidence connecting him with the earlier rape. The supporting affidavit referred to the similarity of the two ...