May 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES DARRIAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 87-03-0255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges Graves, Sabatino and Alvarez.
Defendant Charles Darrian, pro se, who was convicted in 1988 of murder, aggravated sexual assault and other related offenses, appeals the Law Division's denial of his second petition for post-conviction relief ("PCR"). We affirm.
The criminal prosecution of defendant arose out of the discovery of the body of a young woman, Santa Maria Pinkston, on the floor of her apartment on the morning of October 30, 1986. Pinkston was defendant's former girlfriend. Evidence at the crime scene conclusively showed that Pinkston had been beaten and then strangled with a wire coat hanger. Investigators also determined that she had been raped.
Defendant had been seen by two eyewitnesses with Pinkston the night of her death. His mother told police that he had called her the next morning and asked her if the police had come to the house looking for him. The State also presented testimony of a fellow inmate in the county jail, who contended that defendant had admitted that he had choked Pinkston to death in a fit of jealousy.
Defendant testified at trial. He denied being at the victim's apartment on the night of the crimes, although he did acknowledge having consensual sexual relations with her two days earlier. He admitted calling his mother on the morning of October 30, but denied alluding to the police possibly looking for him. We need not recite the other details of the crimes or the remaining trial proofs, as they are presented at length in Judge Conley's opinion affirming defendant's convictions on direct appeal. See State v. Darrian, 255 N.J. Super. 435 (App. Div.), certif. denied, 130 N.J. 13 (1992).
Defendant received a term of life imprisonment with a thirty-year parole disqualification on the murder conviction, plus a consecutive sentence of ten years with a five-year parole disqualification on his conviction of aggravated sexual assault. His convictions on the related offenses were merged. As we noted, the convictions were upheld on direct appeal, and the Supreme Court denied certification.
Defendant filed his first PCR petition, with the assistance of appointed counsel, in October 1992. The petition was denied in February 1993, and defendant appealed. While that PCR appeal was pending, defendant filed a motion to compel the State to produce evidence. Specifically, defendant sought a DNA test of semen found on the victim's thigh. With the State's consent, we remanded the pending PCR appeal to permit the motion to compel the DNA testing to be heard in the Law Division, and also dismissed the appeal subject to potential reinstatement. The Law Division granted the requested DNA. The subsequent tests ruled out defendant as the source of the semen found on the victim.
Defendant then moved for a new trial pursuant to Rule 3:20-1 on the grounds of newly-discovered evidence. Extensive hearings in the Law Division on that motion began in September 1996 and concluded in March 1998. After considering all of the proofs, the trial judge denied the motion, finding that the semen stain was only one part of the State's considerable evidence against defendant, and that the newly-discovered evidence would not have been likely to change the jury's assessment of guilt. We upheld that decision on appeal, in a per curiam opinion in December 1999. State v. Darrian, No. A-5379-97 (App. Div. Dec. 22, 1999) (slip op. at 4-5), certif. denied, 163 N.J. 397 (2000). In particular, we concluded that:
A consideration of the defendant's contentions and supporting arguments leads us to conclude that they are without merit.
We need not restate the considerable other evidence bearing on the defendant's guilt which had nothing do with the existence of residual semen found on the body of the victim. That evidence is set forth at length by [the trial judge] and we affirm substantially for the reasons stated by him in his bench opinion of March 12, 1998. [Ibid. (Emphasis added.)]
We also disagreed with defendant's estimate of the weight that the jury was likely to have given to the testimony of the State's forensic expert. We observed that the expert's testimony about the source of the semen was "somewhat equivocal," id. at 5, and that defendant's trial counsel had highlighted the inconclusiveness of that testimony in his closing remarks to the jury. Id. at 6. The Supreme Court denied certification.
Defendant next filed a petition for a writ of habeas corpus in the United States District Court in March 2001. After reviewing the full state court proceedings, the District Court denied the petition on February 28, 2002. In her accompanying opinion, District Judge Mary L. Cooper concluded that the New Jersey courts' trial and appellate decisions in this matter were "not contrary to the clearly established federal law." Darrian v. Hendricks, No. 01-1372 (D.N.J. Feb. 28, 2002) (slip op. at 6). Judge Cooper specifically found that the DNA evidence central to defendant's arguments "does not overcome the great quantum of evidence presented at trial that [defendant] committed the crimes at issue." Ibid. Judge Cooper further observed:
Considering the overwhelming evidence weighed against [defendant] at trial, [defendant] has not shown that it is more likely than not that no reasonable juror would have convicted him had the results of the recent DNA testing been known to him or her. [Defendant] has not demonstrated that he was actually innocent of the crimes charged, nor that the scientific evidence relied on at trial somehow deprived him of due process or his right to a fair trial. [Id. at 8-9.]
Defendant filed a second PCR petition, this time pro se, in July 2004. Defendant's initial letter brief listed three sub-points of error, all relating to the post-trial DNA testing:
(1) defendant was denied his constitutional right to a fair trial by the admission of false evidence linking him to the semen found on the victim; (2) defendant was denied the opportunity to produce evidence that the victim was a prostitute or at least involved with several other men; and (3) a State witness gave deliberate false evidence about the age of the semen found on the victim. While the petition was pending, this court decided State v. Behn, 375 N.J. Super. 409 (App. Div.), certif. denied, 183 N.J. 591 (2005), a case which defendant attempts to analogize to his own case. Thereafter, in October 2005, defendant filed a motion to amend his petition to incorporate an argument based on Behn. On January 2, 2007, the Law Division dismissed the second PCR petition.
On appeal of his second PCR dismissal, defendant raises the following points, which were supplemented and clarified in a letter reply brief:
DEFENDANT'S CLAIMS SHOULD BE HEARD BECAUSE:
(a) STATE V. BEHN HOLDS THAT IF THE MEANS TO COUNTER FALSE SCIENTIFIC MATERIAL EVIDENCE PRESENTED BY THE STATE DID NOT BECOME AVAILABLE TO A DEFENDANT UNTIL AFTER TRIAL, THEN A DEFENDANT IS ENTITLED TO A NEW TRIAL;
(b) HE IS ENTITLED TO RELIEF UNDER BEHN BECAUSE DEFENDANT CAN DEMONSTRATE THE STATE'S USE OF FALSE DNA EVIDENCE HAD INCREASED ITS CHANCES AN ADDITIONAL 50 OR 100 PERCENT IN OBTAINING A CONVICTION AGAINST DEFENDANT;
(c) THE NEW SCIENTIFIC EVIDENCE OBTAINED IN DEFENDANT'S CASE HAS A GREATER I[M]PACT ON HIS CASE, THAN THE NEW SCIENTIFIC EVIDENCE DID IN BEHN'S CASE;
(d) THE USE OF THE FALSE DNA EVIDENCE PREVENTED COUNSEL FROM RAISING A DEFENSE WHICH COULD HAVE RAISED REASONABLE DOUBT AS TO DEFENDANT'S GUILT.
ACCORDING TO BEHN IF THE MEANS TO COUNTER FALSE SCIENTIFIC MATERIAL EVIDENCE PRESENTED BY THE STATE DID NOT BECOME AVAILABLE TO A DEFENDANT UNTIL AFTER TRIAL, THEN A DEFENDANT IS ENTITLED TO A NEW TRIAL.
THE APPELLATE DIVISION RULED THAT FALSE SCIENTIFIC EVIDENCE CANNOT BE USED TO INCREASE THE STATE'S ODDS IN OBTAINING A CONVICTION. DEFENDANT CAN DEMONSTRATE THE STATE'S USE OF THE FALSE POSITIVE DNA EVIDENCE HAD INCREASED THE STATE'S ODDS AN ADDITIONAL 50 OR 100 PERCENT FOR OBTAINING A CONVICTION AGAINST HIM.
IF THE FORENSIC PATHOLOGIST TESTIFIED FALSELY REGARDING THE CONDITION OF THE SEMEN BEING FRESH, WATERY AND DRIED THEN DEFENDANT'S CONVICTION SHOULD BE REVERSED.
DEFENDANT BELIEVES IN ORDER FOR BEHN, SUPRA[,] TO NOT APPLY TO HIS CASE, THE PREVIOUS APPELLATE COURT WOULD HAVE HAD TO STATE WITH 100 PERCENT CERTAINTY THAT THE JURY DID NOT ACCEPT AS TRUE THAT THE FALSE POSITIVE DNA EVIDENCE HAD IDENTIFIED DEFENDANT AS THE SOURCE OF THE SEMEN FOUND ON THE VICTIM'S THIGH.
DEFENDANT IS ENTITLED TO A NEW TRIAL UNDER BEHN BECAUSE DEFENDANT'S NEW SCIENTIFIC EVIDENCE HAS A GREATER IMPACT ON HIS CASE, THAN THE NEW SCIENTIFIC EVIDENCE OBTAINED BY BEHN, SUPRA. WHEREAS, DEFENDANT'S NEW SCIENTIFIC EVIDENCE WOULD RESULT IN THE STATE BEING EXCLUDED FROM PRESENTING INTO EVIDENCE THE FALSE-POSITIVE DNA RESULTS, WHEREAS IN BEHN THE PROSECUTOR WOULD STILL BE ALLOWED TO PRESENT INTO EVIDENCE THE TESTIMONY OF THEIR EXPERT WITNESS ON CLBA.
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE SINCE THE FRESH, WATERY SEMEN STAIN FOUND ON THE VICTIM'S THIGH DID NOT COME FROM DEFENDANT AND THE DNA EVIDENCE EXCLUDED MR. THOMPSON AS THE SOURCE OF THE SEMEN STAIN FOUND ON THE VICTIM'S THIGH, THEN THAT MEANS THE FRESH, WATERY, SEMEN STAIN BELONGS TO A THIRD MAN, MAYBE THE PUERTO RICAN MALE SEEN KNOCKING ON HER WINDOW OR ONE OF HER CLIENTS.
We have carefully considered defendant's contentions in light of the record and the applicable law. We conclude that defendant's arguments, many of which simply restate similar arguments that he has already litigated in the extensive state and federal court proceedings, lack sufficient merit to be addressed in a written opinion. R. 2:11-3(e)(2). We add only a few comments.
We agree with the Law Division's determination that defendant's arguments are time-barred under Rule 3:22-12. As the judge noted, the second PCR petition was filed on July 26, 2004. The date of the judgment of conviction was April 14, 1989, over fifteen years earlier. We concur with the judge that defendant's second PCR petition did not present adequate justification to excuse his delay in filing. See R. 3:22-12; State v. Milne, 178 N.J. 486, 492 (2004). Moreover, the issues that he currently raises essentially have been adjudicated repeatedly in prior proceedings, and are simply being reformulated here. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997). To the extent that an extremely indulgent reading of the papers might suggest that defendant has raised new issues, we discern no justification for his failure to present them in the earlier proceedings. R. 3:22-4; Milne, supra, 178 N.J. at 492.
We also are satisfied that our disposition in Behn, supra, 375 N.J. Super. at 409, does not warrant relief to this defendant. The issue in Behn was the trial testimony of a State ballistics expert about composition bullet lead analysis ("CBLA"). Id. at 413. This expert testified that he had compared the lead from the bullet fragments found in the murder victim's body with the lead in the bullets found in defendant's possession. Id. at 419. He claimed that the lead composition in the two were indistinguishable, and based on that, the bullets that killed the victim and the bullets possessed by defendant came from the same source of lead and must have come from the same box of bullets, or were packaged on the same day by a specific manufacturer. Id. at 421.
The defendant in Behn filed a PCR petition, providing the court with a newly-published study by a metallurgist expert. Id. at 421. The study concluded that CBLA was founded on untrue assumptions about the unique composition of lead batches, and that, in fact, it was impossible to conclusively determine from the lead composition of bullets what batch they came from or when they were manufactured. Id. at 421-22. The trial court denied Behn's motion, but we reversed, finding that "the newly discovered evidence, which would have effectively neutralized the testimony of [the State's ballistic expert], is of such caliber, in the context of this trial, that it possessed to a probability- not a certainty . . . the capacity to change the jury's verdict." Id. at 433 (internal quotations and citation omitted).
Behn announced no new rule governing a convicted defendant's right to a new trial based on newly discovered evidence. Rather, Behn simply applied the well-established test of State v. Carter, 85 N.J. 300, 314 (1981), in finding that, in the context of Behn's trial, the newly-discovered evidence would "probably change the jury's verdict if a new trial were granted." Carter, supra, 85 N.J. at 314.*fn1 That is exactly the same legal test that the trial court, appellate court, and federal district court have already applied in the present case. The Carter test is necessarily fact-sensitive and its outcome depends entirely on the unique circumstances of each trial. We are satisfied that it was applied properly in the prior proceedings in this matter.
Moreover, the challenged expert testimony in Behn was far more conclusive than that in the present case, in which the State's forensic expert's trial testimony was, at best, equivocal. We also note that the appeal in Behn was from the denial of defendant's first PCR petition, which the judge evaluated as a motion for a new trial. Thus, our opinion in Behn was from the first collateral appeal in that case. By contrast, defendant here has already had an opportunity to litigate the forensic issues, with the assistance of counsel, at the trial, appellate, and federal levels. These courts, applying the Carter test, found that, based on the strength of the State's other evidence, and on the equivocal and inconclusive nature of the challenged forensic testimony, the refutation of that testimony would not have affected the jury's verdict. There is no reason to disturb those conclusions here.
The order of January 2, 2007 dismissing defendant's second PCR petition is affirmed.