On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-01-00099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2008
Before Judges Graves and Grall.
Defendant Louis Watley appeals from the denial of a motion for post-conviction relief. He is serving an aggregate sentence of eighteen years for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and related crimes. This court affirmed his conviction, and the Supreme Court denied his petition for certification. State v. Watley, No. A-4295-00 (App. Div. Apr. 23, 2004), certif. denied, 180 N.J. 458 (2004).
Defendant filed a petition for post-conviction relief in 2005. On a prior appeal, we affirmed the trial court's decision to deny the petition on all but one of the numerous issues raised. (slip op. at 8-11, 18). We concluded, however, that defendant established a prima facie case of ineffective assistance of counsel based on his trial attorney's stipulation about blood-type evidence, failure to object to portions of the State's opening and closing arguments addressing blood stains and failure to object to testimony about the blood stains given by the investigating detective and the victim. (slip op. at 16-18); see State v. Preciose, 129 N.J. 451, 462-63 (1992). Accordingly, we remanded for an evidentiary hearing on those claims.
We limit our discussion of the evidence and arguments presented at trial to the facts that provide the context essential for our discussion of defendant's claim of ineffective counsel. Defendant's challenge to his trial attorney's performance is based on her treatment of blood evidence relevant to his conviction for aggravated sexual assault. The victim testified about acts of penetration that occurred in defendant's bed on a day when she was menstruating. After the crime was reported, defendant's house was searched. A stained bed sheet was seized. Controlled samples of defendant's and the victim's blood and saliva were taken, and DNA extracted from the stain on the bed sheet was tested. The results confirmed that the stain contained defendant's DNA and the DNA of another person. The testing did not permit either the defense expert or the State's expert to conclusively identify or rule out the victim as the person who contributed the unidentified DNA extracted from the stain.
At trial, defense counsel and the prosecutor agreed to stipulate to the chain of custody for the bed sheet and the controlled samples of blood and saliva that were taken from defendant and the victim. They also stipulated that: semen and blood were detected on the bed sheet; no semen was detected in the victim's underwear; and defendant's blood type is "B" and the victim's is "A." The stipulation did not identify the type of the blood found on the bed sheet, and no evidence about the type of the blood that was found on the sheet was introduced at trial. Although the scientific evidence of identity based on the stained sheet was limited to the DNA evidence, the detective who retrieved the sheet from defendant's bed testified that the stain appeared to be dried blood, and the victim was shown a photograph of the bed sheet, which she described as showing her blood on the sheet.
During opening argument, the prosecutor told the jurors that they would hear that the victim's "blood type was found on the bed sheet." In closing, the prosecutor argued, "[the victim] was raped in that bed. That blood stain is [hers.]"
On remand, Judge Anzaldi, who presided at defendant's trial, conducted an evidentiary hearing in accordance with this court's mandate. The attorney who represented defendant at trial, Cassandra Savoy, and the defense expert who addressed the State's DNA evidence, Dr. Robert Shaler, testified at that hearing.
At the evidentiary hearing, Savoy testified about her experience, trial preparation and her decisions to agree to the stipulated facts and refrain from objecting to the testimony and argument about the blood stain. Based on her prior experience representing defendants in trials involving DNA evidence, she did not view the critical question as whether there was blood on the sheet removed from defendant's bed or the type of the blood that was present. In her view, DNA evidence was superior because, unlike blood-type evidence that classifies people in a few large groups, DNA evidence can identify or exclude individuals. DNA evidence was also more important than blood-type evidence because the State was relying on DNA evidence.
Focusing on the DNA evidence, Savoy retained an expert who would call the value of the State's evidence into question. She retained Dr. Shaler, formerly a medical examiner with the Manhattan Coroner's Office, who had done "pioneering" work in the field of DNA evidence. In addition to corresponding with him in writing and by telephone, she spent four to five hours with Dr. Shaler in his home in preparation for trial.
Dr. Shaler testified about his efforts. He not only reviewed the State's results but also examined the underlying data at the State Police lab. He received all of the data he requested and needed to formulate his opinion, which was that the unidentified DNA extracted from the stain on the bed sheet could have been left by many persons in addition to the victim. In addition, he developed a basis for attacking the validity of the identifying marker that prevented exclusion of the victim as a possible donor of the unidentified DNA.
In an effort to establish that the stipulation about blood on defendant's bed sheet was improper, defendant questioned Dr. Shaler about the absence of evidence that the stain was a blood stain. Dr. Shaler explained that there was a lab report that ...