On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 1202-09-05.
Before Judges A. A. Rodríguez, Weissbard and Hoens.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Michael S. Behn was convicted of murder and armed robbery based in part on expert testimony concerning composition bullet lead analysis (CBLA)*fn1. He appeals from an order dismissing his petition for post conviction relief (PCR), which challenged the validity of the CBLA testimony based upon scientific developments which took place after his trial. We conclude that the expert testimony was based on erroneous scientific foundations and its admission met the requirements for granting a new trial on the ground of newly discovered evidence.
In September 1995, defendant was charged in a three-count indictment with the following offenses: murder, N.J.S.A. 2C:11-3a(1),(2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); and armed robbery, N.J.S.A. 2C:15-1 (count three). On the same date the indictment was returned, the State served notice that it would seek the death penalty by filing a Notice of Aggravating Factors, as follows: (a) that Robert Rose was murdered during the commission of an attempt to commit a robbery, and (b) that Rose's murder was committed for the purpose of escaping detection, apprehension, trial and punishment or confinement for the robbery, N.J.S.A. 2C:11-3c(4)(f) and (g). After extensive pre-trial proceedings, some of which we will describe in greater detail later in this opinion, trial began on April 7, 1997. On May 5, 1997, defendant was found guilty on all three counts, but the jury was deadlocked on whether defendant had committed the murder by his own conduct. After denial of a post-trial motion for judgment of acquittal, R. 3:18-2, and for a new trial, R. 3:20-1, on June 23, 1997, defendant was sentenced to life imprisonment with thirty years parole ineligibility on count one and a consecutive fifteen-year term on count three. Count two was merged into count one.
On direct appeal, we affirmed defendant's conviction, directing only a minor adjustment to a statutory penalty. On May 19, 1997, defendant's petition for certification was denied. State v. Behn, 164 N.J. 561 (2000). Defendant filed the present petition on June 20, 2002 and it was denied on September 5, 2003. A motion for reconsideration was denied on March 20, 2003. On appeal, defendant challenges the denial of his petition without an evidentiary hearing.
As a preliminary matter, we address the nature of defendant's application. Although the application was entitled"Verified Petition For Post Conviction Relief," it is clear, as the State suggests, that defendant is seeking a new trial on the basis of newly discovered evidence. Indeed, defendant's brief addresses the issues in terms of newly discovered evidence.
Accordingly, we will treat the proceeding under review as a motion for a new trial on the ground of newly discovered evidence.
We see no need to recount the facts in detail. It suffices to quote the trial judge, in rejecting defendant's post-trial motions, when he said,"[t]his was a highly circumstantial case...." We echoed that thought in our opinion on the direct appeal, noting that"the evidence, though circumstantial and subject to differing views by reasonable jurors, was sufficient to prove guilt beyond a reasonable doubt if the jury drew all the available inferences in favor of the prosecution."
Rose, the victim, was a coin dealer who was negotiating a sale of $30,000 to $40,000 worth of coins to defendant. Rose was shot and killed at his place of business on July 19, 1995, between 9:25 p.m. and 10:30 p.m. Four shots, not fired from close range, struck Rose in the head, causing his death. The medical examiner also found bruising on both of decedent's wrists. There was evidence that Rose planned to meet someone named"Mike" at his office that evening. It was the State's theory that defendant appeared at the office, killed Rose and took only the coins he had been negotiating to purchase.
Defendant, on the other hand, testified that he met with Rose at about 5:30 p.m., paid $40,000 cash for the coins and left. It was after this completed transaction that Rose went home for dinner and then returned to his office at 7:45 p.m. for his appointment with"Mike," who, according to decedent's wife, was a new client coming in to sell coins. Rose's son suggested that his father returned to the office to meet someone other than"Mike" in reference to buying or selling coins. Two people who had been in the office with Rose that afternoon corroborated the son's testimony about his father's meeting with another individual.
Defendant presented an alibi defense and offered testimony designed to establish that, contrary to the State's contention, he did have access to sufficient funds to purchase the coins that he claimed to have bought from Rose and which were found in his possession.
To bolster its case, the State presented three experts to tie defendant to the offense. Peter DeForest, a forensic scientist, offered an opinion that marks on the decedent's wrists were consistent with having been made by handcuffs of the same general design as ones found in defendant's possession. Defendant presented an opposing forensic scientist, Nicholas Petraco, to opine that the marks on decedent's wrists were made either by handcuffs or some other type of ligature, such as wire, electrical cord or rope. In addition, Petraco testified that defendant's handcuffs did not cause the marks.
The State also presented ballistics experts in an effort to link the bullets which killed Rose to a rifle which defendant purchased but which he claimed had been stolen from his car on November 18, 1994, the day after its purchase. It was the State's theory that defendant falsely reported the gun stolen and then used it in the murder, seven months later. Randall Toth, the State's expert, opined that four of the six lead fragments recovered from the decedent during his autopsy were.22 caliber long rifle bullets, that two of the four fragments were fired from the same weapon, but that he could not determine whether the other two identifiable fragments were fired from the same weapon. Toth concluded, however, contrary to the State's theory, that the murder weapon was either a.22 caliber Marlin rifle or a.22 caliber Jennings semi-automatic pistol. He also concluded that two of the fragments were of no evidential use for purposes of identification. His conclusion that four of the fragments were.22 caliber long rifle bullets was based on a comparison of the markings on the fragments to known samples, and he stated that although the bullets are called.22 caliber long rifle they can be used in either a rifle or a pistol.
A second ballistics expert, George Krisvosta, also testified that two of the bullets fragments were fired from the same weapon and that they and two other bullets fragments were.22 caliber long rifle bullets. Krivosta, unlike Toth, concluded that two fragments were fired from the same weapon.
However, he could not determine if they were fired from the same weapon as the other two fragments. Based upon his inability to determine if all four fragments were fired from the same gun, he testified he could not say that only one weapon was used to commit the crime, but only that the four bullets were fired from weapons that shared the same class characteristics of sixteen lands and sixteen grooves with a right hand twist. He opined that bullets recovered from the decedent were consistent with having been fired from a weapon manufactured by Marlin as opposed to one of the automat1c pistols manufactured by other companies, because the markings on the fragments were narrower than those made by other manufacturers.
The defense also presented a ballistics expert, William E. Conrad, who disagreed with Krivosta's conclusion that only a Marlin manufactured weapon could have fired the evidence bullets based upon (1) heavy damage to the bullets which distorted the lands and grooves; (2) variations within the measurements of the lands and grooves on the evidence bullets; and (3) his knowledge that Jennings and Phoenix Arms produce weapons which have the same general rifling characteristics as those he found on the evidence bullets. Conrad testified, based upon the damage to the evidence bullets that there was no way to conclude that any particular type of gun fired the bullets recovered from the decedent, and that the recovered bullets could have been fired from a Marlin rifle, a Jennings pistol, a Phoenix Arms pistol, a Bryco pistol or some other firearm for which there existed no data regarding land and groove measurements.
Thus, every expert presented by the State was countered by a defense expert, with one exception, Charles Peters, an expert on bullet lead analysis. The sparring which preceded Peters' entry into the case is significant.
On February 20, 1996, the court ordered the State to supply the defense with all experts' reports connecting handcuffs found in the defendant's possession to marks or impressions discovered on the decedent's wrists during his autopsy and connecting the Marlin 70 Papoose.22 caliber long rifle the defendant reported as stolen eight months before the incident to the murder of the decedent. The State failed to provide the defense with any experts' reports and on May 10, 1996, defendant submitted a motion seeking to bar all State expert testimony based upon the State's failure to comply with the court's order of February 20, 1996.
On July 2, 1996, an order was once again entered by the court compelling the State to provide the defense with the written report of its expert, Dr. Peter DeForest, concerning"a comparison of the marks on the wrists of the decedent... to the handcuffs seized from the defendant... [by] August 30, 1996."
Despite the court's orders, Dr. DeForest's final report, dated January 15, 1997, was not received by the defense until January 24, 1997. On February 6, 1997, the defense provided the State with a report from its forensic science expert, Nicholas Petraco.
On February 7, 1997, the State moved for a continuance of the February 10, 1997 trial dates, arguing it needed additional time to prepare for trial based upon its receipt of the Petraco report. Petraco's report responded to the report of DeForest, who opined that impressions found on the decedent's wrists during the autopsy were made by handcuffs. Petraco offered the following opinions: (a) the impressions discovered on the wrists of the decedent may or may not have been made by handcuffs; (b) that the handcuffs the defendant possessed did not make the impressions on the decedent's wrists; (c) it was more likely than not that a handgun, as opposed to a rifle, was the weapon the perpetrator used to shoot the decedent four times in the head; and (d) the robbery and murder of the decedent was committed by two people as opposed to a lone gunman. In opposing the State's motion for a continuance, the defense argued that Petraco's report was not completed earlier because the State did not provide the defense with DeForest's final report until January 24, 1997, and Randall Toth, the ballistics expert for the State, did not agree to submit to an interview until February 4, 1997. The State's motion for a continuance was granted and a trial date of April 7, 1997 was set.
The trial having been adjourned, the State secured the services of two additional experts, Krivosta, a ballistics and tool mark identification expert, and Charles Peters of the Federal Bureau of Investigation (FBI), an expert in bullet lead composition analysis. We have discussed Krivosta's opinion above. Peters opined that the lead in the fragments recovered from the decedent and the lead in bullets the defendant possessed were analytically indistinguishable, that both the lead fragments recovered from the decedent's body and the defendant's bullets came from the same source of lead, and both the fragments recovered from the decedent's body and the defendant's bullets came from the same box or boxes and were packaged on the same date by the manufacturer.
In response to the receipt of the reports of Krivosta and Peters, the defense filed a motion to bar their testimony or, in the alternative, for a continuance. In support of the motion, the defense argued it was incapable of rebutting the testimony of Peters in time for the trial. The motion was denied as was the request for a further adjournment of the trial date. In a letter opinion, the trial judge expressed his view that"[t]here is no reason why the defense cannot quickly obtain an expert in this field, should they so desire, and have that person available for testimony by the time the issue comes up in the trial. In the meantime, the conclusions of Peters would not be put before the jury in openings." Defendant then sought leave to appeal. We denied leave, noting that defendant had received Peters' report on March 27, 1997, and being"satisfied that the trial judge has recognized that the offense will have a reasonable opportunity to deal with the Peters report...," which would not be referred to in opening statements.
Contrary to the optimism expressed in our April 4 order, the defense apparently was not able to obtain an expert to refute the opinions of Peters, and ultimately Peters' trial testimony stood unrebutted. We will later advert to the efforts defendant made to find an expert to counter Peters.
At trial, Peters testified that each source of lead used by a bullet manufacturer is unique and that there are millions of different sources of lead. Thus, he stated, the following:
A. The basis of bullet lead analysis is that when bullets are manufactured they start out with a molten pot of lead and this molten pot of lead will have elements added to the lead to make the lead hard and then sometimes they'll even take out elements, trace -- trace elements if they don't want it in there, but basically you would have this large pot of lead and everything in that large pot of lead is mixed and it has its own unique composition, so every time they make up this batch it will be unique. And how do we know that? Because over the years we've analyzed tens of thousands of bullets. These are single bullets, partial boxes of bullets, full boxes of bullets. And every box of bullets that comes from different sources of lead has its own unique composition, that is, if you can characterize enough of the trace elements that are in there, and we look at things like copper, antimony, arsenic, tin and bismuth in the lead and if we get enough of these elements we can actually source it to the source of lead. And we know from our analysis at the F.B.I. over -- we've been doing this over 30 years, that there's millions of these compositions out there.
Peters testified that the manufacturer of the bullets possessed by the defendant would receive from the smelter large batches of lead, referred to as billets, ranging in weight between seventy and eighty pounds. On cross-examination, when asked how big a"batch" of lead might be, he repeatedly said he did not know about that part of the manufacturing process. He testified as follows:
Q: Now, with regard to manufacturers of lead, if a lead manufacturer makes a batch of lead it will sell lead from this batch over a period of time, isn't that correct?
A: State it again. I'm sure you said it right. I just need to follow you.
Q: If a lead manufacturer makes a batch of lead it can sell lead from the same batch over a period of time? That's what we're talking
A: I really don't know. I really don't know. I'm not -- I've never seen that end of the manufacturing process.
Q: So you don't know if a manufacturer of ammunition could order lead in April and order it again in May and receive lead from the same batch ...