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State v. Long

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 14, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RONALD LONG, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 85-04-0519.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 20, 2009

Before Judges Carchman, R. B. Coleman and Simonelli.

On this appeal from the denial of defendant Ronald Long's petition for Post-Conviction Relief (PCR) and motion for a new trial, we are urged to revisit a twenty-four year old felony murder conviction that has been affirmed on appeal and had been the subject of at least five other PCR proceedings. In this most recent application, defendant raises the new claim that the felony murder sentencing was invalid for want of a presentence report. He also moved for DNA testing of a cigarette butt, which the State had used to place defendant at the scene of another armed robbery in response to defendant's argument that the use of the same gun in all three armed robberies proved that someone else must have committed them. Defendant also included a motion for a hearing on whether a recantation by the jail-house informant indicated that the informant's testimony against him was unreliable. Here, the PCR judge considered both the most recent PCR and motion and concluded that they were without merit. We agree and affirm.

I.

We provide an expansive discussion of both the procedural and factual background of this matter.

A.

In 1985, defendant was indicted on thirteen counts:

1. Theft by receiving stolen property, namely, the handgun involved in the remaining counts, N.J.S.A. 2C:20-7 (third degree);

2. Possession without a permit of the handgun used against Alfred Carmichael, N.J.S.A. 2C:39-5(b) (third degree);

3. Attempted unlawful disposition of the handgun, N.J.S.A. 2C:5-1 and 2C:39-9;

4. Possession of prohibited ammunition, N.J.S.A. 2C:39-3(f) (fourth degree);

5. Possession of a weapon for unlawful purposes against Carmichael, N.J.S.A. 2C:39-4 (second degree);

6. Aggravated assault against Carmichael, N.J.S.A. 2C:12-1(b)(1) (second degree);

7. Armed robbery of Carmichael, N.J.S.A. 2C:5-1 and 2C:11-3a(2) (second degree);

8. Attempted murder of Carmichael, N.J.S.A. 2C:11-3(a)(2) and 2C:5-1;

9. Armed robbery of Albert Compton, N.J.S.A. 2C:15-1 (first degree);

10. Felony murder of Compton, N.J.S.A. 2C:3(a)(3) (first degree);

11. Purposeful or knowing murder of Compton, N.J.S.A. 2C:11-3(a)(1) or (2) (first degree);

12. Possession without a permit of the handgun used against Compton, N.J.S.A. 2C:39-5(b) (third degree); and

13. Possession of a weapon for unlawful purposes against Compton, N.J.S.A. 2C:39-4 (second degree.

On October 18, 1985, after two weeks of trial, the jury convicted defendant on all counts. They then found that the felony murder was a statutorily sufficient aggravating factor to support the death penalty, and defendant was sentenced to death by the trial judge.

On November 22, 1985, the judge sentenced defendant on the remaining convictions. He merged count two into count five; count twelve into count thirteen; count six into count eight; and counts nine and ten into count eleven, for which defendant had already been sentenced to death. Notwithstanding the absence of a presentence report (PSR), he found five aggravating factors and no mitigating factors. On the remaining counts, he imposed an aggregate sentence of 61.5 years and parole ineligibility of 30.75 years together with statutory penalties and fines.

The death penalty gave defendant a right of appeal to the Supreme Court. State v. Long, 119 N.J. 439, 460 (1990) (citing R. 2:2-1(a)(3)). The Court vacated the death penalty for error in the murder jury charge, reversed the murder conviction and ruled that the State could seek the death penalty again only by retrying the murder count. Id. at 450-51, 459-65, 504. In "all other respects," the Court affirmed "the judgment below." Id. at 504. However, it did not reach defendant's claims about the non-capital sentences or about "the merger of the weapons counts," and declared that they were to "await disposition after remand." Ibid.

Instead of seeking to retry the murder count, the State moved to dismiss the murder conviction, and in April 1991 the court did so. It resentenced defendant on the non-homicide convictions to the same terms as before.

In September 1992, defendant filed his first PCR, which was denied. Within this petition, defendant raised, among other things, the issue of whether "he was denied a fair trial because he was not permitted to voir dire prospective jurors regarding their racial biases," whether "the prosecutor's remarks were so racially inflammatory that the defendant was deprived of a fair trial" and "whether he was denied due process of law when the trial court allowed a jailhouse informant to testify against him without first holding a pretrial evidentiary hearing to determine if the informant had acted as a State agent in eliciting statements from the defendant." Defendant appealed the denial of the PCR and then realized that he had never been sentenced on the felony murder conviction. He filed a second PCR petition, arguing that the dismissal of the murder conviction precluded sentencing on any merged conviction. The State cross-moved to unmerge the felony murder for sentencing, defendant moved before us seeking to have us assume original jurisdiction of the motions, and we ordered a "limited remand" for resolution of the question.

At the March 11, 1994 hearing, the judge denied defendant's second petition and granted the State's cross-motion. The judge found five aggravating factors, four of which had also been found at the original sentencing, and no mitigating factors. He imposed a sentence of life in prison for the felony murder, with a minimum term of thirty years, plus a VCCB penalty of $10,000. He left the other sentences "as they are" and deemed them concurrent with the life sentence. On January 3, 1995, we affirmed the denials of both the first and second PCRs, and the Supreme Court denied certification. State v. Long, 139 N.J. 441 (1995).

Defendant filed a third PCR petition challenging the non-capital sentences as excessive, and on October 18, 1995, the Law Division judge denied it. Defendant apparently raised no new issues in his fourth petition, which the court summarily dismissed. Defendant then moved that Judge Neustadter*fn1 recuse himself on the ground of bias, which the judge denied on January 6, 1998.

Defendant filed a fifth PCR in which he again sought recusal. The PCR included his first motion for a hearing on new evidence, in which he sought DNA testing of a cigarette butt that the State had referenced at trial, on the basis of recent legislation permitting such testing in certain concluded cases. On May 17, 1999, the Law Division denied the petition, we affirmed, and the Supreme Court denied certification. State v. Long, 170 N.J. 86 (2001).

Defendant then filed another motion for a hearing on new evidence, asserting a recantation by the jail-house informant. On July 25, 2002, the Law Division denied the motion. Defendant's next motion for a hearing on new evidence was similar to the prior one, and it was also denied. We affirmed, and the Supreme Court denied certification. State v. Long, 178 N.J. 250 (2003).

Defendant's next motion for a hearing on new evidence was based on the lab report from the testing of the cigarette butt, which the State failed to produce despite having disclosed its contents. The Law Division denied the motion, we affirmed, and the Supreme Court denied certification. State v. Long, 183 N.J. 215 (2005).

On January 31, 2007, defendant filed his sixth PCR petition, again challenging his sentence as illegal. On June 4, 2007, he filed another motion concerning new evidence, which requested a hearing on the admissibility of the jail-house informant's testimony based on a recantation. On August 6, 2007, he filed another motion for a hearing on new evidence, in which he cited new information that the State might have failed to test the cigarette butt.

The Law Division denied the PCR and the motions. This appeal followed.

B.

The Supreme Court succinctly outlined the two incidents for which defendant was tried, plus the third incident that each side presents in support of its respective position:

The case has a very complex trial record but a very simple factual scenario. On December 11, 1982, a gunman clad in a red baseball jacket, wielding a silver revolver, shot to death Albert Compton, the night manager of the Holiday Liquor Store. There was a single bullet to the chest. There were no witnesses to the killing itself. There was one witness on the street who identified Ronald Long as being in the vicinity of the liquor store around the time of the crime.

Earlier on the same evening, a similarly-clad gunman with a silver pistol had shot Alfred Carmichael at an apartment within walking distance of the Holiday Liquor Store. Several witnesses linked Ronald Long to the first shooting. If the same gun were used in the two crimes, Long would be a prime suspect. Ballistic tests proved that the same type of gun was used in both crimes. There was overwhelming evidence that defendant had access to such a gun, which was owned by his cousin, Harold Long. A major trial issue then, was whether it was correct to try the Carmichael and liquor-store crimes together. A final wrinkle to the case was that a third holdup and shooting had occurred that same night with a perpetrator using the same type of revolver. The victim of this crime did not identify Ronald Long as the gunman. [State v. Long, supra, 119 N.J. at 451.]

The Court then relied on "the issue-oriented version of facts as set forth in defendant's brief" to relate the testimony and forensic evidence presented at trial. Id. at 452.

In early December 1982, defendant was staying in Atlantic City at his brother's apartment. Id. at 452. He admitted possessing Harold's handgun during his stay. Ibid. The State presented evidence that defendant had stolen it from Harold, but defendant testified that he bought it from Harold on December 2, 1982, and that on December 7 or 8, 1982, he sold it to "a Rastafarian friend of Carmichael." Ibid.

Carmichael testified that he and defendant were friends. Id. at 453. On December 11, 1982, at approximately 6:00 p.m., defendant came to Carmichael's apartment to borrow money, but Carmichael refused. Ibid. Carmichael took defendant to another person's apartment, and a man named Oliver Johnson, who knew Carmichael but not defendant, briefly stopped by. Ibid. Carmichael and Johnson went to Carmichael's apartment, and a man named Liver Johnson, briefly stopped by. Ibid. After Johnson left, defendant asked Carmichael again to lend him money. Ibid. When Carmichael refused, defendant showed him a handgun and offered to sell it. Ibid. Carmichael left to take out the trash, and as he walked down the hall, he was shot in the neck. Ibid. Carmichael gave the police conflicting stories before naming defendant as the shooter. Ibid.

That same evening, Albert Compton was working at the liquor store. Id. at 454. He was shot once in the chest and died from that wound. Id. at 454-55. A witness found Compton's body at 8:35 p.m; the store's owner later determined that Compton had closed out the store's lottery machine at 8:20 p.m. and that the money in it was missing. Id. at 455, 457. The shooter left an empty shell casing on the floor but no fingerprints. Id. at 455.

The bullets removed from Carmichael and Compton were of "different types," but both were .25 caliber. Ibid. There were 70,000 automatic weapons of the same caliber "in circulation," and approximately thirty-five brands "exhibit the same ballistic patterns as found on the Carmichael and Compton shells." Ibid. The State's ballistics expert concluded that the same .25 caliber automatic pistol had fired both bullets. Ibid.

On December 12, 1982, at approximately 3:30 a.m., Albert Gracco was robbed and shot in the neck while working at an Atlantic City gas station. Ibid. The shell casing found at the gas station "was the same as" the one found at the liquor store. Ibid.

Gracco described his assailant as a "black male in his early twenties" and "about five feet eight inches" tall. Ibid. However, he was wearing a "long trench coat." Ibid. Gracco viewed a line-up of defendant and six other men, and he identified one of the other men rather than defendant. Ibid. Defendant argued that Gracco's failure to identify him was proof that someone else shot Gracco after using the same gun to shoot Carmichael and Compton. Id. at 456.

Barry Turner, a friend of defendant's who "was facing indictment on other charges," testified that he saw defendant in defendant's brother's apartment on December 12, 1982, at 1:00 a.m. Ibid. Defendant wore a red jacket, and he "picked up" his brother's trench coat. Id. at 455-56. The coat was recovered, but it tested negative for gunpowder residue. Id. at 455.

In early January 1983, a local newspaper published a story about the shootings that named defendant as the prime suspect and included his picture. Id. at 454. Johnson told the police that he had noticed a red baseball jacket in Carmichael's apartment, and Carmichael told him it was defendant's. Id. at 453-54. At 8:10 p.m. on the evening in question, while Johnson stood at a bus stop that was a ten-minute walk from the liquor store, defendant walked past him wearing the red jacket. Id. at 454. Johnson's description of defendant's age and height matched Gracco's. Id. at 455.

On December 23, 1982, defendant telephoned his mother while police officers were at her residence. Id. at 456. One of the officers present testified that "defendant asked, 'Which man died?'" Ibid. "Defendant denied this conversation." Ibid.

Defendant's aunt, Harold's mother, testified that defendant confessed Compton's murder to her on December 25, 1982. Ibid. She had given the police defendant's whereabouts, but she did not mention the confession until shortly before trial, when she and a detective "were at an airport" and "the subject of the confession came up by accident." Id. at 456-57.

William Perona learned about the shooting in the liquor store on December 29, 1982, from a newspaper account. Id. at 457. In his first statement, he told the police that he entered the store at approximately 8:30 p.m. after seeing that the winning lottery number for the day had been posted. Ibid. He noticed a "suspicious-looking black male" inside, whom he described as "heavy-set, with a long brown or grey coat." Ibid.

The police believed that Perona's time estimate was wrong, so they arranged for him to be hypnotized. Ibid. Under hypnosis, Perona said that he entered the store shortly after 8:00 p.m. and left before the lottery number was posted. Ibid.

Perona accordingly testified that he arrived at the store "shortly before 8:00 p.m." and left less than ten minutes later. Id. at 457-58. As he was exiting, he saw another man enter. Id. at 458. That man was in his thirties and was wearing a dark trench coat. Ibid. The man's right hand was in his pocket while his left hand was at his side. Ibid. Perona drove away but passed in front of the store again at approximately 8:10 p.m., at which time he saw police cars outside. Ibid.

Defendant and Paul Pettigrew were jailed in the same facility; Pettigrew was awaiting trial for a series of robberies. Id. at 458. Pettigrew testified that, shortly before his own sentencing, defendant confessed to shooting Carmichael and Compton:

Pettigrew claimed that just before his sentencing on March 15, [1985,] defendant had talked to him about the Carmichael and Compton shootings. Defendant admitted shooting Carmichael, and claimed that after he had shot Carmichael, he ran into his cousin. The two men went to the liquor store. On their way in, they encountered a white male who saw the cousin. Defendant mentioned that the prosecutor's office had tried to hypnotize the customer. After the customer left, defendant and his cousin remained in the store while defendant made a purchase. Pettigrew said that defendant then shot the clerk as he reached for a paper bag, or possibly a gun, because "he didn't want to leave [a] witness behind." [Ibid.]

The defense claimed that Pettigrew was angry with defendant because he took defendant's advice to plead guilty to five of the robberies in his indictment, but still received a sentence of thirty-five years with a minimum term half as long. Ibid. Pettigrew admitted that he approached the prosecution after his sentencing with hopes for a deal but said that the prosecutor promised only to recommend a reduced sentence after favorable testimony against defendant. Id. at 458-59. After defendant was convicted, Pettigrew's sentence was reduced to seventeen and one-half years with no minimum term, which was "the equivalent of about five years of real time." Id. at 459.

The Supreme Court's opinion did not mention the cigarette butt that was found on the floor of the gas station's office. State witnesses testified that the laboratory tests conducted to identify it as defendant's yielded negative results, but that it was nonetheless his because it was of the same popular brand that defendant later smoked while in jail. The State presented that testimony to counter the adverse implication of Gracco's failure to identify defendant and the ballistics evidence, namely, that someone other than defendant used the same gun in all three incidents.

The State implicitly concedes that the lab report and the related documents that defendant cited below had not been provided to him at the time of his earlier petitions and motion. The lab report stated that "no blood group substances were detected on the cigarette butt." However, it also has a check mark in the column named "NE" for "not examined."

On appeal, now from his sixth PCR and a motion for a hearing, defendant raises the following issues:

POINT I

DEFENDANT'S SENTENCE IS ILLEGAL, WHERE THERE WERE TWO SENTENCING EVENTS, BOTH CONDUCTED WITHOUT THE BENEFIT OF A PRESENTENCE INVESTIGATION OR A PRESENTENCE REPORT, IN VIOLATION OF N.J.S.A. 2C:44-6 AND RULE 3:21-2, AND LEAVING ALL OTHER SENTENCING ERRORS BURIED IN THE RECORD.

A. Defendant's Prison Classification File

B. There Was No Presentence Investigation Conducted Or Presentence Report Prepared

C. Failure to Properly Weight [sic] Aggravating And Mitigating Factors Or Give An Adequate Statement Of Reasons

D. Merger Issues

E. Excessive Fines

F. Disparity of Sentence / Race Matters

G. Reported Misinformation

H. The Law Division Decision

I. Inoperative Sentence

POINT II

THE LAW DIVISION ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL, AFTER IT WAS DISCOVERED THAT THE STATE HAD WILLFULLY SUPPRESSED EVIDENCE TO BLOCK DNA TESTING, AND WHERE THE STATE HAD PROVIDED FALSE FACTS TO MISLEAD THE JURY AT TRIAL AND MISLED THE COURTS DURING THE SUBSEQUENT APPEALS

POINT III

THE DOCTRINE OF JUDICIAL ESTOPPEL SHOULD BE INVOKED AGAINST THE STATE'S DIFFERENT POSITION THAN THE ONE IT SUCCESSFULLY ARGUED AT TRIAL WITH RESPECT TO THE MATERIALITY OF THE CIGARETTE BUTT

POINT IV

THE MATTER MUST BE REMANDED TO THE LAW DIVISION FOR A HEARING ON DNA TESTING TO ALLOW DEFENDANT TO PROVE HIS INNOCENCE BY THIRD-PARTY GUILT

POINT V

THE MATTER REGARDING PAUL PETTIGREW'S 2001 RECANTATION STATEMENT, DECIDED BY THIS COURT IN THE 2003 APPEAL, MUST BE RE-OPENED AND A HEARING HELD, WHERE PETTIGREW ADMITTED ON A HIDDEN CAMERA TELEVISION REPORT THAT HE HAD BEEN THREATENED TO SILENCE BY THE PROSECUTOR

POINT VI

THE DECISIONS BY THE LAW DIVISION ARE SO OUT OF TOUCH AND OFF THE MARK THAT THEY CAN ONLY BE PERCEIVED TO HAVE WRITTEN [sic] BY THE LAW CLERKS WHOSE INITIALS APPEAR ON THEM, WHEREFORE, THE MATTER SHOULD BE REMANDED TO ANOTHER JUDGE FOR A FULL AND FAIR HEARING ON ALL OF THE ISSUES PRESENTED AND A DECISION WHICH REFLECTS THAT IT WAS MADE BY THE JUDGE, NOT THE LAW CLERK In his pro se reply brief, defendant raises the following additional issues.

POINT VII

THE STATE'S BRIEF IN REGARDS TO THE SENTENCING ISSUES, EVINCES NOTHING MORE THAN SOPHISTRY TO FURTHER THE LONG HISTORY OF INJUSTICES IN THE CASE

POINT VIII

THE STATE'S CONTINUED RESISTANCE TO DNA TESTING, AND ITS "FAST AND LOOSE" BEHAVIOR ALL THROUGHOUT THE LONG HISTORY OF THIS CASE, SHOWS A CLEAR PATTERN OF PROSECUTORIAL MISCONDUCT WHICH ITS MAIN PURPOSES HAVE ALWAYS BEEN TO SECURE AND MAINTAIN A CONVICTION AT ALL COSTS, INCLUDING RESORTING TO RACISM, ILLEGALLY SUPPRESSING EVIDENCE AND COMMITTING FRAUD UPON THE COURTS

POINT IX

THE OPPROBRIOUS REMARKS, INTENTIONAL MISSTATEMENTS OF THE FACTS AND THE LAW BY THE PCR JUDGE ARE TELLING AND ARE AMPLY SUPPORTED BY THE RECORD, WHEREFORE THEY SHOULD BE VIEWED ACCORDINGLY

We first dispose of the issues of the alleged illegal sentence resulting from the absence of a Pre-sentence Report (PSR) as well as the claim that the trial judge improperly considered aggravating and mitigating factors when imposing the felony murder sentence on defendant. Even though we conclude that these claims have no merit, R. 2:11-3(e)(2), we decline to address the merits of the claims as they are procedurally barred.

We note that in its opinion below, the court found that the felony murder sentencing did not require a new PSR because a prisoner's continued custody precluded the prospect of "significant new information." Even if a new PSR were required, the only development it would have noted was defendant's assertion of "progress in prison" as a mitigating factor, and that court expressly addressed that motion before rejecting it as unpersuasive. Defendant declined to speak at the sentencing, which was a further indication that all relevant information about him had been presented.

But there is a more compelling reason to deny relief. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus" and thus "a safeguard to ensure that a defendant was not unjustly convicted." State v. Afandor, 151 N.J. 41, 49 (1997). The cognizable claims relevant to this case are the substantial denial at trial of a constitutional right, and the imposition of a sentence "in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c).

A PCR petition may not be used as a substitute for a direct appeal of the conviction, or as a substitute for a motion that could be brought "incident to the proceedings in the trial court." R. 3:22-3. The Rules accordingly bar the assertion of any "ground for relief" not previously raised at trial or in an appeal, Rule 3:22-4, or that could have been raised at trial or on appeal but was not. State v. Afandor, supra, 151 N.J. at 50. The bar also applies if there was a prior post-conviction review proceeding in which the ground for relief was not raised. R. 3:22-4. That procedural bar does not apply if the ground for relief "could not reasonably have been raised in any prior proceeding," or if enforcing the bar "would result in fundamental injustice" or otherwise "would be contrary to the Constitution of the United States or the State of New Jersey."

R. 3:22-4.

In addition to the procedural bar, "[a] prior adjudication

upon the merits of any ground for relief is conclusive," regardless of whether it was made at trial or in a prior PCR proceeding, or in "any appeal taken from such proceedings." R. 3:22-5. That res judicata bar applies to any claim that is either "identical or substantially equivalent to" the adjudicated claim. State v. Marshall, 173 N.J. 343, 351 (2002) (citations omitted).

The general time limit on a PCR petition is five years after "rendition of the judgment or sentence sought to be attacked," unless the additional delay reflects the defendant's "excusable neglect." R. 3:22-12(a). However, "[a] petition to correct an illegal sentence may be filed at any time." R. 3:22-12(a). An "illegal sentence" is one that is "in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c). The only illegalities that a defendant may assert outside the time bar are that the sentence exceeds the statutory maximum or imposes a condition not authorized by statute. State v. Murray, 162 N.J. 240, 246-47 (2000).

We again restate that this is defendant's sixth PCR. Whether denominated as an illegal sentence (a claim that is dubious at best) or otherwise, the absence of a PSR was well within the knowledge of defendant from the initial resentencing and during all periods when the various sentences were imposed after the State dismissed the murder charge and proceeded with the felony murder offense. We conclude that the issue is now time barred, and we decline to consider it on the merits. Simply raising new issues at whim cannot be tolerated when procedures are in place to provide for a meaningful and timely review of the merits of a particular claim.

We reach the same result regarding defendant's claims addressing the aggravating and mitigating factors at the defendant's sentencing. We have held that a defendant on remand ordered for the purpose of correcting an erroneous assessment of aggravating and mitigating factors, "all current information relevant to an appropriate appraisal of the factors should be considered." State v. Towey, 244 N.J. Super. 582 (App. Div.), certif. denied, 122 N.J. 159 (1990). However, we also declared that such a remand was to be distinguished from a remand limited to "determining whether the original sentence was in accord with accepted guidelines." Id. at 594 n.2. In a remand for that purpose, "only the evidence before the sentencing judge is appropriate for consideration." Ibid. The remand ordered by the Supreme Court here was for the purpose of sentencing defendant on the felony murder charge, not to correct an error. Towey does not sanction an expansion of the record under those circumstances. Notwithstanding these limitations, the judge did consider, and rejected, defendant's proffered rehabilitation.

We also conclude that this claim not only lacks merit, but this claim is subject to both the procedural bar and the five-year time limitation, because defendant could have raised these arguments at his sentencing for felony murder, or in the three PCR petitions that he filed between that sentencing and the current petition.

Simply redenominating the alleged error as an illegal sentence does not prompt a review when a careful consideration exposes the claim as nothing more than a claim cognizable either as a matter of direct appeal or an earlier PCR. We reject the claims.

II.

Defendant also claims that the court committed other sentencing errors. He argues that the court ignored the Supreme Court's order to consider on remand all claims of sentencing error, and in that regard he names his claim of excessive sentencing due to the court's failure to merge all the weapons offenses into the corresponding armed robberies.

Defendant also argues that the court weighed the aggravating and mitigating factors improperly by relying on his supposed intent, even though the only evidence on intent was the Pettigrew testimony that the jury had not necessarily adopted. More specifically, the court mistakenly found the aggravating factors of the victim's age, and vulnerability or inability to resist due to age or other reasons, when those conditions did not exist for Compton.

Defendant adds that the court's failure to hold a hearing on his ability to pay the fines was unjust because the total of fines was higher than it would have been if he had been convicted only on the counts of the preceding indictment, which did not include count eight. He also argues that his sentence reflected racially disparate treatment, based on his assertion of being the only defendant in New Jersey sentenced to death on the sole aggravating factor of felony murder. Finally, he argues that the dismissal of the felony murder count after its merger into the capital murder precluded its reinstatement for any purpose. We reach the same conclusion that we did with the earlier claims. These assertions were properly ripe for consideration either on direct appeal or during an earlier PCR. To assert them now renders the time bar meaningless. We reach this conclusion fully cognizant of the merits of the respective claims and with our opinion that the various claims are without merit; nevertheless, they are barred procedurally, and we decline to consider the merits of these barred claims.

III.

Defendant claims that the court erred by denying his motion for DNA testing of the cigarette butt. The State represented at trial that test results were negative, but subsequently disclosed records suggested that no tests had been performed. Defendant represents that routine DNA testing on him in prison confirmed that he is among the large majority of persons who secrete indicators of blood type in their saliva, and he argues that a negative DNA test result would be persuasive proof that he was not at the scene of the Gracco shooting. Therefore, he was not the person who used the same handgun in all three incidents.

Indeed, defendant claims that DNA testing is mandated whenever the results would be sufficient to negate an inference of presence at a crime scene. In any event, he claims that the State should be judicially estopped from taking inconsistent positions on the cigarette butt, by arguing at trial that it placed him at the gas station and then arguing thereafter that it did not matter if someone else had left the cigarette butt there.

In his supplemental brief, defendant argues that a negative result from DNA testing would be materially different from what the jury was told because such a result would probably change a jury's view of the cigarette butt from "evidence that has no power to include Defendant as a suspect" to "evidence [that] has the power to potentially exclude Defendant as the perpetrator."

In his May 1999 opinion, Judge Neustadter concluded that DNA testing was unwarranted because proof of an absence of defendant's DNA "would not be dispositive of guilt or innocence," and that it would have little weight against "the defendant's numerous confessions, the eyewitness identifications, and the ballistics expert." In our June 8, 2001 opinion, we agreed that testing was not mandated, because even a positive result for the DNA of a person other than defendant would have been merely cumulative and therefore of "no dispositive exculpatory impact."

The court's March 23, 2004 opinion found that the claim based on the withholding of the lab report was procedurally barred and further found that the lab report was not new evidence because "the existence of the report was known by the defendant at the time of trial." We agreed, noting that "there is no basis to conclude that the cigarette butt or any forensic testing on it yielded exculpatory evidence that was not disclosed," or "to suggest that the cigarette butt never existed or might have been of a different brand."

Here, the court found that the laboratory had reported the absence of material on the cigarette butt that could have been identified as having come from someone other than defendant. It further found that nothing in the belatedly produced documents cast doubt on the "authenticity" of the lab report. Relying, in part, on our earlier findings, it found that any results from defendant's proposed additional testing would not constitute exculpatory evidence, and that they would be immaterial because there was no reasonable probability that such results would have affected the trial result.

The Legislature has provided a specific vehicle for defendants "currently serving a term of imprisonment" to "make a motion . . . for the performance of forensic DNA testing." N.J.S.A. 2A:84A-32a. See also Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, ___ U.S. ___, ___ n.2, 129 S.

Ct. 2308, 2326 n.2, ___ L.Ed. 2d ___, ___ n.2 (2009) (Alito, J., concurring) (recognizing that New Jersey is one of forty-six states that has enacted DNA testing legislation). The motion must be supported by an affidavit explaining the importance of the identification issue to the case, and also explaining, "in light of all the evidence," why favorable results from such testing would cause the court to grant a motion for a new trial based on newly discovered evidence. N.J.S.A. 2A:84A-32a(a)(1)(a)-(b).

The court may not grant the motion for DNA testing unless it conducts a hearing and makes certain findings. N.J.S.A. 2A:84A-32a(d)(1)-(8). Both sides implicitly posit, for purposes of this appeal, that the cigarette butt exists and that the State's custody was sufficient to prevent a material alteration. N.J.S.A. 2A:84A-32a(d)(1)-(2). The other findings that would be relevant to defendant's felony murder conviction are that:

(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; [and]

(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 requested 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[.] [N.J.S.A. 2A:84A-32a(d)(2)-(6).]

As for whether favorable DNA test results would likely result in the grant of a motion for a new trial, the same standards apply as for any newly discovered evidence. State v. Peterson, 364 N.J. Super. 387, 398 (App. Div. 2003). It must be "'(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.'" Ibid. (quoting State v. Carter, 85 N.J. 300, 314 (1981)). "Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." State v. Ways, 180 N.J. 171, 187-88 (2004). A trial court's decision to grant or deny a new trial on the ground of newly discovered evidence is reversible only for an abuse of discretion. State v. Puchalski, 45 N.J. 97, 108 (1965); State v. Artis, 36 N.J. 538, 541 (1962); State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000); State v. Henries, 306 N.J. Super. 512, 529-30 (App. Div. 1997).

Identity is a significant issue whenever it is contested, regardless of the strength of the State's evidence. Peterson, supra, 364 N.J. Super. at 395-96. In Peterson, the defendant was convicted of four counts of aggravated sexual assault and felony murder. Id. at 390. The State's forensic testing identified the defendant as the source of hairs found on the victim's person and on a stick used in the assault. Id. at 391-92, 396. There was also substantial non-forensic evidence of guilt, including confessions to the defendant's co-workers and to a fellow inmate. Id. at 392.

We observed that if DNA testing were to show that the samples did not come from the defendant, "the evidence of [the] defendant's guilt could appear a lot less overwhelming than it did at the time of trial," and that it would not be merely "'cumulative or impeaching or contradictory.'" Id. at 396-98 (quoting Carter, supra, 85 N.J. at 314). We then cautioned that the statute requires the court to presume a favorable result from DNA testing for purposes of deciding the motion. Id. at 396-97. The issue instead was "whether there is any realistically possible outcome of DNA testing that would create a reasonable probability a new trial would be granted," and we held that there was. Id. at 398-99, 399 n.2.

In State v. DeMarco, 387 N.J. Super. 506, 513-14 (App. Div. 2006), the defense argued at trial that the results of its DNA testing of a semen sample found on the victim excluded the defendant as the source, while the State argued that it did not. We used the same analysis as in Peterson, and noted the further possibility that advances in DNA testing and other developments indicated the possibility that another person whose DNA was in State databases could be positively identified as the perpetrator. Id. at 517-22. See also Holmes v. South Carolina, 547 U.S. 319, 330, 126 S.Ct. 1727, 1734, 164 L.Ed. 2d 503, 512 (2006) (stating "[j]ust because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case").

By contrast, here, the State did not have any forensic test results to identify the cigarette butt as defendant's, so further testing could only yield cumulative evidence that it was not his. The State's only argument that the cigarette butt was defendant's was the non-forensic observation that it was of the same brand as the one he favored while in jail. Furthermore, the jury did not need to place defendant at the gas station where Gracco was shot in order to place him at the scene of the Carmichael and Compton shootings, as the Supreme Court noted when it upheld a jury instruction to that exact effect. Long, supra, 119 N.J. at 498-99.

Finally, unlike the evidence at issue in Peterson and DeMarco, which was recovered from a remote location or the victim's body and was therefore unlikely to have been left by anyone other than the perpetrator, the cigarette butt here was found in the office of a gas station and could easily have been left by anyone. Favorable results from new testing would establish no more than that, so the court was correct to find the absence of a reasonable probability that they would lead to the grant of a motion for a new trial.

As for estoppel, the State is not changing its theory of the case, which did not require defendant's involvement in the Gracco incident. It is not even changing its position that defendant was indeed present for that incident. Instead, it is arguing that the ballistics evidence, plus the evidence that defendant had changed from wearing the red jacket to wearing a long coat, was enough to place him at the gas station whether the cigarette butt was his or not. That is not an inconsistency; it is an argument that defendant's presence at the gas station would be consistent with any inference one might draw about who had left the cigarette butt there.

We reject defendant's argument and affirm the denial of a hearing on the issue of DNA testing.

IV.

We reach the same result regarding the Pettigrew recantation. Defendant asserts that an April 2005 recantation by Pettigrew compels a hearing about the admissibility of his testimony. Defendant argues that it contains material new information, namely, threats by the prosecutor that Pettigrew would "be thrown back in prison" unless he "kept his mouth shut."

The Supreme Court found that the admission of Pettigrew's testimony did not violate defendant's constitutional rights under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed. 2d 246 (1964), precluding the State's use of an "undercover agent" to get defendant to make statements without benefit of counsel. Long, supra, 119 N.J. at 485. It explained that a violation would require Pettigrew to have "act[ed] as a State agent in deliberately eliciting incriminating statements from the defendant," and found that he had not acted as such an agent because "there was no agreement between Pettigrew and the State at the time defendant confided in him, and therefore no agency relationship . . . ." Id. at 485-86.

The Court observed that an evidentiary hearing on the matter was discretionary and required "a threshold showing of good cause." Id. at 487. Defendant failed to make such a showing because he had proffered only a conjecture about a prior agreement between the prosecution and Pettigrew to try obtaining a statement from him. Id. at 486-87. The Court did not require such a hearing on remand, but suggested that "it may be wise" because Pettigrew's testimony addressed defendant's intent to kill Compton, which was the essence of the capital murder charge:

Lest this issue crop up again in collateral proceedings, it may be wise on remand to permit examination of any of the prosecutor's staff who met with Pettigrew any time before he was moved away from defendant on March 28, 1985. Resolution of the Massiah issue is especially significant here, inasmuch as Pettigrew's testimony is crucial in establishing defendant's intent to kill.

[Id. at 487-88 (citations omitted).]

In its denial of defendant's first PCR petition, the court ruled that the Supreme Court's disposition on the merits barred reconsideration, but it nonetheless "looked at the issue on the merits" in a modest elaboration of the Supreme Court's comparison of Massiah's requirements to the circumstances that resulted in Pettigrew's testimony. We relied on that opinion to affirm the denial for substantially the same reasons.

In its July 25, 2002 opinion denying defendant's motion for a hearing on new evidence about the admissibility of Pettigrew's testimony, the court described the evidence as previously undisclosed contacts between the State and Pettigrew, which defendant believed might lead to other contacts that would impeach Pettigrew's credibility. The court found that the Supreme Court contemplated a Massiah hearing only if the murder count were retried. It further found that any new impeachment evidence would have been cumulative and unlikely to affect the result on felony murder, because Pettigrew's testimony about defendant's intent to kill Compton was not relevant to that strict-liability offense.

More importantly, the court described defendant's earlier waiver of a hearing about the admissibility of Pettigrew's testimony, by summarizing events not otherwise set forth in this record and that defendant does not contest:

[I]t was the defendant who presented the State and the Court with a proposition to the effect that he would abandon various claims, including his Massiah*fn2 claim, in the event the capital murder count was dismissed with prejudice which in fact did occur. The defendant withdrew his various claims when the Court dismissed the capital murder count with prejudice, and the defendant had indicated an offer to withdraw his request for a Massiah hearing at his PCR hearing on January 28, 1993. At one point during that hearing this Court questioned the defendant about the Massiah issue as being a moot issue where upon the defendant responded "exactly." As indicated in State's brief on this motion, in attempting to induce the Court to dismiss the capital count with prejudice, the defendant alluded to the prospect of [a] testimonial hearing [on the Massiah issue], involving[] a number of witnesses, including Pettigrew, "Well your honor, they can have it either way they want it. The reason why I want that clarified is because there was a Massiah issue here that was left undecided by the Supreme Court's ruling, and if it is to be dismissed without prejudice then there is no way for me to exhaust that Massiah issue without requiring testimony from Mr. Rosenfeld, Det. Iubilee, and the jail house witness, Paul Pettigrew." In short the defendant has waived his right to have a Massiah hearing or to have the Court order the production of witnesses including Pettigrew on this motion for a new trial.

Our July 17, 2003 opinion gave a fuller description of the new evidence that defendant was alleging. It was a report by a private investigator that Pettigrew told her he had contacted the prosecution and received coaching on how to solicit defendant's confession. We found that the court had the discretion to treat that recantation as suspect, especially in light of its vagueness and late assertion. That recantation was also unlikely to affect the outcome, because of the irrelevance of Pettigrew's testimony to the non-capital offenses and because "[t]he proof of guilt, including defendant's admissions to three other people, eyewitness identification testimony, and ballistics evidence, was overwhelming."

In an investigative story by a television news show that was aired in April 2005, Pettigrew was asked if his testimony against defendant was false, and he replied, "yep." When asked why he did not pursue recantation, he stated that the prosecutor "informed me that if I do[,] that mean[s] my part of the case I bargained would be reopened." Pettigrew talked willingly to the reporter, although he was reportedly unaware that the conversation was being recorded.

The trial judge here did not address this claim. Defendant's motion was in essence a motion for reversal on the basis of a recantation, which is treated as a motion for a new trial on the ground of newly discovered evidence. Puchalski, supra, 45 N.J. at 108; Artis, supra, 36 N.J. at 541; Henries, supra, 306 N.J. Super. at 529-30. The decision on such a motion is reviewable only for an abuse of discretion. Artis, supra, 36 N.J. at 541; Henries, supra, 306 N.J. Super. at 529. Determining the credibility of a recantation "is peculiarly the function of the trial judge who sees the witnesses, hears their testimony and has the feel of the case," and a reviewing court "should ordinarily defer to the trial judge's findings on this sensitive issue . . . ." State v. Carter, 69 N.J. 420, 427-28 (1976). Accord State v. Engel, supra, 249 N.J. Super. 336, 386 (App. Div.), certif. denied, 130 N.J. 393 (1991).

A recantation is "inherently suspect." State v. Baldwin, 47 N.J. 379, 400, cert. denied, 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed. 2d 442 (1966). It is "untrustworthy," Carter, supra, 69 N.J. at 427, and "a particularly unreliable form of proof." Puchalski, supra, 45 N.J. at 107. Its proponent has the burden of proving "that it is probably true and the trial testimony probably false." Carter, supra, 69 N.J. at 427. The two-part test is whether the recantation "'casts serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice.'" Ibid. (quoting Puchalski, supra, 45 N.J. at 107-08). It is not enough for the recantation simply to reduce the credibility of the recanting witness's trial testimony. Baldwin, supra, 47 N.J. at 400; State v. Sullivan, 43 N.J. 209, 233 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966).

In this case, defendant knowingly waived the issue of the admissibility of Pettigrew's testimony in exchange for the State's decision not to retry the murder charge, and defendant makes no argument that the waiver was invalid, or that such waivers are unenforceable. In addition, the television story did not report a new recantation, but rather an affirmation of the recantation that was previously found not to satisfy the standard for granting a new trial. That prior adjudication on the merits bars this claim. Those are more propitious bases for denying this claim than the notion that Pettigrew's testimony was only relevant to the murder charge; while it is true that only the murder conviction required Pettigrew's statements about defendant's intent, Pettigrew's testimony also served to place defendant at the scene of the Carmichael and Compton shootings, which was required for convictions on all counts except the theft and unlawful disposition of the handgun.

The absence of a new recantation moots defendant's invocation of State v. Feaster, 184 N.J. 235 (2005). In that case, a key trial witness recanted in a certified statement but was wrongfully intimidated into withdrawing it by the prosecutor's threat to charge him with perjury if he took the stand to affirm it. Id. at 239-40. There is no indication here that Pettigrew has renounced any substantive recantation that he may have made, to the private investigator or otherwise.

We affirm the denial of a hearing on the admissibility of Pettigrew's trial testimony.

Finally, we reject, without further comment, defendant's additional arguments as to racial bias and recusal. They have been addressed and adjudicated during the various prior opinions and have been the subject of discussion both by us and the Supreme Court. They do not warrant any additional discussion.

Affirmed.


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