February 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN W. BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment Nos. 0473-72; 0474-72; and 0475-72.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Axelrad, Lihotz and Messano.
Defendant John Brown appeals from an order denying his application for post-conviction DNA testing, his third post-conviction relief (PCR) petition. Defendant presents the following issue for our consideration:
THE TRIAL COURT'S MISUNDERSTANDING OF STATE V. PETERSON, CAUSED IT TO APPLY THE WRONG STANDARDS TO THIS PETITION, THEREBY DENYING IT IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
In light of our review of the record, the arguments of the parties presented in their briefs and the applicable legal standards, we affirm.
Following a jury trial, defendant was found guilty of two counts of felony murder, N.J.S.A. 2A:113-1, and N.J.S.A. 2A:113-2, and one count of armed robbery, N.J.S.A. 2A:141-1, and N.J.S.A. 2A:151-5, in connection with the robbery of a gas station and the murder of the station attendant, Kenneth McGuire, as well as the murder of the Chief of Police, Phillip DeSantis, who pursued defendant after he fled from the gas station. The armed robbery count merged into the felony murder count and defendant was sentenced to two consecutive life sentences on the two murder convictions. On direct appeal, we affirmed defendant's conviction and sentence. State v. Brown, No. A-2920-73 (App. Div. February 24, 1976). Defendant's petition for certification was denied. State v. Brown, 71 N.J. 333 (1976).
In his pro se petition "for post-conviction DNA testing," defendant argued he was entitled to have a DNA testing procedure conducted on the blood spots found in his car driven on the day of the murders, pursuant to Rule 3:20-2. Specifically, defendant suggests the State relied upon the blood evidence at trial to secure his conviction. At that time, the blood spots were typed only due to the lack of available sophisticated DNA testing. In his PCR petition, defendant argued current DNA testing would conclusively prove the source of the blood, and, if it belonged to another, that fact would support his innocence.
On July 14, 2005, a hearing was held on defendant's PCR petition. The PCR judge recited the reasons for denying defendant's PCR petition as follows:
[T]he Appellate Division in their opinion [affirming defendant's conviction] . . . said the following[:]
"After a careful review of this matter we conclude this appeal is clearly without merit. The evidence against the defendant was nothing less than overwhelming so that even if there had been an error at trial . . . [it] would have been harmless beyond any doubt."
And it is apparent . . . that the multiple identifications of the defendant, circumstantial evidence, I guess, of the commission of the crimes, but the multiple identifications of the defendant established the overwhelming evidence in addition to the dying statement made by one of the victims.
Because the evidence was so overwhelming, because identification was simply not a close call or a significant issue as required by the statute, first I deny the defendant's application for the taking of DNA evidence. I think it's prudent for the State to follow through on its inquiry to determine whether or not material is even available at this late juncture that could be analyzed, but the motion is denied. The statutory requirement, the initial and most significant one has not been met, that being that identification be a significant issue. It is not. The proofs were overwhelming and that has been . . . both direct and for post-conviction relief.
On appeal, defendant argues the PCR judge failed to properly apply the threshold requirements for DNA testing set forth in N.J.S.A. 2A:84A-32a(a)(1). Particularly, defendant argues the court misconstrued the meaning of "identity as a significant issue," N.J.S.A. 2A:84A-32a(d)(3), and erred in concluding defendant failed to establish "the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted," N.J.S.A. 2A:84A-32a(d)(5).
The statute relied upon by defendant was enacted in 2002, following his conviction. N.J.S.A. 2A:84A-32a allows one convicted of a crime who is serving a term of imprisonment to move for forensic DNA testing of evidence probative of guilt or innocence. State v. Peterson, 364 N.J. Super. 387, 390 (App. Div. 2003). In order to obtain relief, a defendant must:
(a) explain why the identity of the defendant was a significant issue in the case;
(b) explain in light of all the evidence, how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted;
(c) explain whether DNA testing was done at any prior time, whether the defendant objected to providing a biological sample for DNA testing, and whether the defendant objected to the admissibility of the DNA testing evidence at trial. If evidence was subjected to DNA or other forensic testing previously by either the prosecution or the defense, the court shall order the prosecution or defense to provide all parties and the court with access to the laboratory reports, underlying data and laboratory notes prepared in connection with the DNA testing;
(d) make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA sought; and
(e) include consent to provide a biological sample for DNA testing. [N.J.S.A. 2A:84A-32a(a)(1).]
However, a motion for DNA testing shall not be granted unless, after a hearing, the court determines the following eight criteria have been established:
(1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;
(2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tempered with, replaced or altered in any material aspect;
(3) the identity of the defendant was a significant issue in the case;
(4) the convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the offender;
(5) the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial;
(6) the evidence sought to be tested meets either of the following conditions:
(a) it was not tested previously;
(b) it was tested previously, but the required DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;
(7) the testing requested employs a method generally accepted within the relevant scientific community; and
(8) the motion is not made solely for the purpose of delay. [N.J.S.A. 2A:84A-32a(d).]
Defendant argues the identity of the murderer was the issue before the jury, thus he has satisfied N.J.S.A. 2A:34A-32a(d)(3). He maintains the PCR judge applied an incorrect standard of review, as she relied on the volume of the State's identity evidence.
During defendant's trial, the State presented extensive identity evidence. Two witnesses testified defendant waited on them at the gas station at 4:15 a.m. on the night McGuire was stabbed. They saw McGuire lying on the ground and defendant told them to leave. When McGuire was discovered following the stabbing, he identified defendant's photograph prior to entering surgery. As to DeSantis, who also was stabbed, the police found DeSantis' radio log in his police car, which contained a written description of defendant. The description was broadcasted over the police scanner. Another officer called to report he saw defendant bent over DeSantis' body as he drove past the Police Chief's car. That officer described a white Buick parked in front of DeSantis' police car. The officer was familiar with defendant because he knew him from town. The police found the gas station cash register abandoned within a mile and a half of DeSantis' body and, a short distance thereafter, the defendant's white Buick. In the back seat of the Buick was the register tape from the gas station. Two witnesses related defendant's jail admissions regarding the stabbings. Finally, Wells, a friend of defendant, testified he was with defendant on the evening of the stabbings. Wells stated defendant revealed his intention to rob the gas station and he declined defendant's request that he participate.
The proofs necessary to establish whether the identity of the defendant was a "significant issue" in the case were analyzed in Peterson, supra, 364 N.J. Super. at 394. In Peterson, we explained N.J.S.A. 2A:84A-32a(d)(3) "does not specify that the identification of the defendant as the perpetrator must have been established by any particular form of evidence." Id. at 395. Additionally, "the strength of evidence against a defendant is not a relevant factor in determining whether his identity as the perpetrator was a significant issue." Id. at 396. Rather,
[t]he underlying objective of N.J.S.A. 2A:84-32a - to provide an opportunity for exoneration of an innocent person through the testing of evidence by a highly reliable scientific methodology that was not available at the original trial-may be served in any case where there is a genuine question concerning the identity of the perpetrator. Therefore, we conclude that the requirement of N.J.S.A. 2A:84A-32a(d)(3) that "identity" must have been a "significant issue" at defendant's trial before post-conviction DNA testing will be ordered does not turn on the form of evidence the State relied upon to prove the perpetrator's identity.
[Id. at 395.]
Although we agree identity was a "significant issue" at defendant's trial, we nevertheless conclude the PCR petition was properly denied. Defendant has failed to make "a prima facie showing that the evidence sought to be tested is material to the issue of [his] identity as the offender," and to explain how the DNA results, if they show what defendant suggests, "would raise a reasonable probability that . . . a motion for a new trial based upon newly discovered evidence would be granted." N.J.S.A. 2A:84-32a(d)(4) and (5). Simply stated, we cannot draw the connection suggested by defendant that Wells was involved in the stabbing of DeSantis, if the blood spots found in defendant's Buick matched Wells' DNA. Moreover, we fail to comprehend how the evidence acts to exonerate defendant.
In Peterson, supra, the challenged forensic evidence was used to identify the defendant as the perpetrator (e.g., hairs found on the victim, semen found on the outside of the victim's clothing and blood under the victim's fingernails). 364 N.J. Super. at 392. In this matter, the blood, by typing, was shown to belong to someone other than the victims. As a result, the blood found in defendant's car was not used as evidence of defendant's guilt. In fact, there is no mention of a relationship between the blood spots and the crimes. Therefore, the evidence sought to be tested is immaterial to the issue of defendant's identity as the offender in the robbery and murders. N.J.S.A. 2A:84-32a(d)(4).
Defendant maintains DNA testing would verify Wells' involvement. We disagree. Wells' possible role in the crimes was available for development at trial. In his testimony, Wells admitted he and defendant were together in defendant's car for several hours before the gas station robbery and McGuire's stabbing. Wells claimed he separated from defendant prior to the robbery. Thus, evidence of Wells' complicity was presented to the jury.
Defendant does not now allege Wells was the perpetrator, but merely suggests the blood could belong to Wells. Accepting defendant's speculation, i.e., the blood spots came from Wells, such evidence fails to support a theory that Wells stabbed the victims and, more importantly, does not sever defendant's connections to the crimes. We conclude defendant has failed to explain how possible newly discovered DNA evidence results would favor the grant of a new trial. N.J.S.A. 2A:84-32a(d)(5).
For those reasons, we conclude defendant has not satisfied the necessary showing pursuant to N.J.S.A. 2A:84-32a(d)(4) and (5). Accordingly, defendant's PCR petition was properly denied.
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