On appeal from the Superior Court, Law Division, Essex County.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
ZAZZALI, J., for a unanimous Court.
The narrow question raised in this appeal is whether a defendant may request samples for DNA testing on direct appeal of his conviction or whether he must wait to make the request in a petition for post-conviction relief (PCR).
In April 1997, a garage owner discovered the dead body of Valerie Wilson, a Newark prostitute, abandoned in the weeds behind his auto repair shop. Based on multiple visible stab wounds to her chest, as well as evidence of strangulation, the medical examiner concluded that Wilson's death was caused by sharp and blunt force injuries to the head, neck and chest.
Investigators gathered forensic evidence from the scene, including fingernail clippings from the victim and a sample of blood taken from beneath her fingernails that indicated the presence of Type A blood. DNA testing was not performed at that time. During autopsy, the examiner drew a vial of the victim's blood, but it was not refrigerated. That failure caused the blood sample to degrade to the point that it could not be typed.
Approximately one year later, Freddie Dizly, a friend of Harrison Hogue's, advised police that he had information regarding Wilson's murder. Dizly claimed that after watching Hogue and Ms. Wilson smoke cocaine, he saw Hogue strangle Ms. Wilson. Shortly thereafter, police picked up Hogue for questioning. After waiving his Miranda rights, Hogue gave police a formal statement in which he admitted that he knew Wilson and other prostitutes in the area, but claimed that he had not seen Wilson on the day of her murder. Hogue also admitted that he always carried a "good knife and a good filet knife or ice pick." Based on this statement and other evidence, the State charged Hogue with Wilson's murder and weapons offenses.
At trial, defense counsel sought to have Hogue's blood drawn and typed for comparison with the Type A blood found beneath the victim's fingernails. The court ruled, however, that the results of any typing of Hogue's blood would be inadmissible because even if tests revealed that Hogue did not have Type A blood, that evidence would not be clearly exculpatory because there was no way to determine conclusively that the blood found beneath the victim's fingernails had not come from the victim herself. Defense counsel did not request DNA testing of the blood and fingernail clippings at that time.
The jury convicted Hogue of murder and the weapons offenses and the trial court sentenced him to thirty- five years imprisonment with a thirty-year period of parole ineligibility. Hogue appealed his convictions and sentence. On appeal, Hogue moved for a partial remand for the purpose of applying to the trial court for an order requiring the prosecutor to turn over forensic samples for DNA testing. Hogue's motion requested blood samples and fingernail clippings taken from the victim as well as a sample of the blood found beneath the victim's fingernails. In support, counsel filed a certification indicating that Hogue had Type O blood, which eliminated the possibility that he was the source of the blood found beneath the victim's fingernails. ...