On appeal from Superior Court, Law Division, Essex County.
Pressler, Deighan and Baime. The opinion of the court was delivered by Pressler, P.J.A.D. Baime, J.A.D., dissenting.
Following a jury trial defendant Bart L. Thomas was convicted of the first-degree kidnapping and forcible rape of two teenage girls, N.J.S.A. 2C:13-1b(1) and N.J.S.A. 2C:14-2, as well as related lesser offenses. He was sentenced to an aggregate prison term of 20 years subject to a seven-year period of parole ineligibility.
The crimes were committed in October 1983. The two victims, A.R. and D.K., then 14 and 13 years old respectively, were walking home from a party at their Newark High School at about 11:00 p.m. They chose the most direct route, which took them through a park. They were there accosted by a gunwielding assailant who forced them into his car, placed them in the back seat and drove them to a deserted area, about fifteen minutes away. There he forced them in turn into the front seat, raping each of them. He then drove them back to where he had found them. The girls ran home, reported the rape to their families, and were taken to a local hospital, where rape
kits were assembled which included vaginal smears and other cytological material. Two days later, the girls were brought to police headquarters where each separately viewed several books of photographs. Each separately identified defendant's as that of their assailant. Several days later, one of the girls, A.R., while walking to school, saw the man she believed to be her assailant in the same car in which she had been abducted. She telephoned her mother with this information but did not then tell the police. The indictment charging defendant with the crimes was returned in January 1985.
Trial was originally scheduled on a try or dismiss basis for August 1987. That trial was preceded by a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Following the hearing, the trial judge ruled that the victims' photographic identification was inadmissible because of the police failure to explain why no record had been made of the photographs used in the identification procedure. We granted the State's motion for leave to appeal and reversed by our opinion filed on February 8, 1988, under Docket No. A-280-87T5. Because of the delay occasioned by the interlocutory appeal, the delay in the return of the indictment, and the unaccounted for delay between the return of the indictment and the Wade hearing, it was not until May 1988, some four and a half years after the commission of the crimes, that trial finally took place.
The State's sole witnesses at trial were the two victims, now young women, and the mother of one of them. The State's case depended entirely on the victims' out-of-court and in-court identifications. No other evidence linking defendant with the crimes was adduced. Defendant, who had prior drug and robbery convictions, did not testify. His sole witness was his employer, who testified that as far as he knew, defendant had no car, did not drive and could not drive. Payroll records, moreover, suggested that defendant was at work in Irvington at the time A.R. sighted her assailant while walking to school. Based on this testimony and the discrepancies between the
victims' initial physical description and defendant's actual appearance, the defense was misidentification.
After the jury returned its guilty verdicts, defendant moved for an order compelling the State to make the rape kit available for DNA testing. The motion was heard just prior to the scheduled sentencing. The gist of defendant's argument was that DNA testing is highly accurate but expensive since it was performed in this country by only three commercial laboratories. Counsel explained that he had asked, indeed "begged," the prosecutor to have the test performed at State expense but the prosecutor had refused. He did not, he argued, pursue the matter by a pretrial motion both because his client could not afford the expense of the test and the fees of the expert witnesses who would have to testify and because admissibility of DNA test results was, in his view, questionable. At the time the post-trial motion was made, no New Jersey court had in fact ruled on the admissibility of DNA testing in a reported opinion and insofar as we are aware, none has done so since. The prosecutor's response to the motion was that as a matter of office policy, evidence was not released for commercial testing and the F.B.I., which was then preparing facilities for the conducting of DNA testing, was not yet ready to undertake it. The prosecutor also argued that the motion came too late. She contended that since it could have been made prior to trial, the defense, by choosing not to do so, had made a binding strategic decision to forego DNA testing and whatever favorable evidence that testing would produce.*fn1 The trial judge agreed that defendant was not, in these circumstances, entitled to a "second bite of the apple," denied the motion, and proceeded to sentence defendant.
We reverse the order denying the motion to compel the test. We do so even if we were to assume that the trial judge was essentially correct in interpreting defense counsel's conduct as a strategic decision, a matter we discuss hereafter. We note that the State's case against defendant was not strong, the identifications were uncorroborated except by each other, and the defense, based on defendant's inability to drive a car*fn2 and his apparent presence at work in Irvington at the time the assailant was seen in Newark, appeared sufficient in the circumstances to raise a reasonable doubt as to his ...