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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...