On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
Bilder and Baime. The opinion of the court was delivered by Baime, J.A.D.
Defendant appeals from the denial of his motion to compel the State to make available for independent forensic testing a T-shirt that was seized by the police at the time of his arrest approximately 18 years ago. The T-shirt was admitted into evidence at defendant's trial in 1976. Defendant was convicted of rape (N.J.S.A. 2A:138-1), breaking and entering with intent to rob (N.J.S.A. 2A:94-1), armed robbery (N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5), and threatening to kill (N.J.S.A. 2A:113-8), and was sentenced to an indeterminate term not to exceed 30 years at the Adult Diagnostic and Treatment Center plus between 32 and 47 years in State Prison.*fn1 The Law Division Judge treated defendant's motion as a petition for post-conviction relief. In a thorough and well reasoned letteropinion, Judge Mahon found that defendant's petition was procedurally barred and was substantively without merit. We agree and affirm the Law Division's order substantially for the reasons expressed by the Judge in his letter-opinion.
We need not recount the lurid details of the brutal, late night rape of the victim in her home. Suffice it to say, after robbing the victim at knife point, the perpetrator placed a paper bag over her head and proceeded to rape her three times. The victim was able to observe the man's clothing and told the police that he had taken two $20 dollar bills which were folded in a somewhat unusual manner. Defendant, who fit the victim's
description of the assailant, was arrested near the scene shortly after the crimes were committed. A search of his person revealed a knife and two $20 dollar bills which were folded in the manner described by the victim. We have no occasion to describe in detail additional evidence that was presented against defendant at trial. We merely note that the State's case, though circumstantial, was extremely strong. It can fairly be said that the evidence against defendant was overwhelming.
Among the items seized at the time of defendant's arrest was the semen stained T-shirt he was wearing. When the stain was tested at the State Police laboratory, it reacted "positive" for the presence of human semen, with a blood type O finding. However, when a control sample from the garment was tested, it also reacted for the presence of blood type O, indicating that the shirt had somehow become contaminated. Thus, the prosecutor considered the scientific results in both tests to be unreliable and inconclusive.
Defendant's trial attorney was fully informed of the test results, including the blood type O finding. There is no question that she discussed this information with defendant who she knew had type A blood. Fully aware of these facts, defense counsel entered into a stipulation with the State with respect to the laboratory results. As part of the stipulation, defendant did not dispute the chain of custody and the State did not mention any of the blood grouping findings. In subsequent post-conviction hearings, defense counsel, a highly experienced criminal lawyer of some renown, explained her reasoning. We need not describe her testimony in detail, because the issue of her alleged ineffectiveness has been decided against defendant in both the federal and state courts. We merely note that she was concerned with the possibility the jury might be prejudiced by evidence indicating defendant was wearing a T-shirt with semen stains from another male. The attorney believed the jury might speculate that defendant had been involved in other criminal or homosexual activities. We add that defense counsel's
strategic decision seems entirely reasonable under the circumstances.
The lengthy and convoluted procedural history that followed defendant's conviction requires some comment. During the past 16 years, defendant has filed a plethora of appeals, motions and post-conviction petitions in both the state and federal courts, challenging various aspects of the trial proceedings. Charges of incompetence and worse have been levelled against defendant's trial attorney, the prosecutor, laboratory technicians, and members of the State Police. Lengthy hearings have been conducted and defendant's claims of unfairness have been found to be factually and legally wanting. We are compelled to note that defense counsel in his brief and during oral argument has repeatedly chosen to ignore prior judicial findings and to reargue points that were decided against him long ago. Repetition of defendant's lengthy list of charges does not give them credibility.
It would be superfluous to describe all of the appeals, petitions and motions that have been filed since defendant was convicted. The following description briefly outlines the main currents of the proceedings defendant has generated after entry of his convictions. Defendant first filed a direct appeal to this court, contending that his trial attorney was ineffective and that he was induced to enter into the stipulation regarding the semen stains by reason of prosecutorial fraud and misconduct. We rejected these arguments in an unreported opinion. The Supreme Court then denied defendant's petition for certification. Defendant filed a petition for a writ of habeas corpus which was dismissed by the United States District Court for failure to exhaust state remedies.
Defendant filed a second petition for a writ of habeas corpus in which he apparently asserted that the State had withheld the laboratory report which indicated that the semen stain on the T-shirt reacted "positive" to blood type O. He also claimed that ...