On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 86-11-1772.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges C.L. Miniman and Waugh.
Defendant Richard Jefferson appeals from a final order denying his post-conviction application for DNA testing, which he contends would prove that he was innocent of the crimes for which he stands convicted. We affirm.
Defendant was indicted on November 14, 1986, and charged with murder, contrary to N.J.S.A. 2C:11-3; felony murder, contrary to N.J.S.A. 2C:11-3a(3); armed robbery, contrary to N.J.S.A. 2C:15-1; unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5; and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. He was tried in 1987 and was convicted of murder, theft as a lesser-included offense to robbery, and the two weapons offenses; he was acquitted of felony murder. The judge sentenced defendant to life in prison with thirty years of parole ineligibility on the murder conviction and lesser concurrent terms for the remaining convictions. We affirmed the convictions and sentences on March 7, 1990. State v. Jefferson, No. A-638-87 (App. Div.) (Jefferson I), certif. denied, 122 N.J. 189 (1990).
On June 16, 1992, defendant filed his first petition for post-conviction relief (PCR), which the PCR judge denied on February 4, 1994. We again affirmed on July 14, 1997. State v. Jefferson, No. A-5439-93 (App. Div.) (Jefferson II), certif. denied, 152 N.J. 187 (1997). Defendant next filed a writ of habeas corpus in the United States District Court of New Jersey, which was denied. Jefferson v. Morton, No. 98-5240 (D.N.J. Aug. 9, 1999). The United States Court of Appeals for the Third Circuit denied a certificate of appealability on October 24, 2000, and denied a petition for rehearing on March 26, 2001. On November 3, 2003, defendant filed a motion in the Law Division, Monmouth County, for post-conviction DNA testing. Defendant argued that the DNA evidence would sufficiently support his defense theory that another individual killed the victim. Judge Francis P. DeStefano denied defendant's motion in a written order and opinion dated March 21, 2007. This appeal followed.
The facts relevant to defendant's conviction have been recited in detail in our two prior opinions, Jefferson I, supra, slip op. at 2-6, Jefferson II, supra, slip op. at 2-7, and are not repeated here. Suffice it to say that the victim was found lying dead on the floor of his home from a blow to the head with a hammer. He had been lying down on a couch when he was struck and then rolled onto the floor. Defendant and others had been visiting the victim's home and defendant was the last to leave. He claimed he returned and found the victim dead on the couch with a hammer in his head and money scattered across the floor. He admitted rolling the body onto the floor, that the hammer might have been his, and that it might have his fingerprints on it. He denied murdering the victim, but gave a number of conflicting accounts of his movements that night to Doug Johnson, who gave defendant some clean clothing before going out to purchase cocaine.
The next day, defendant reported the murder to the police and then went to a bar, where he gave another account of the murder to the bartender. During the investigation, the police gathered several items from the victim's home, including cigarette butts, playing cards, a yellow hat, a cigarette pack, a wine glass, matches, hair, and the hammer. The police later collected defendant's shorts, shirts, and pants from defendant and Johnson. Fingerprint analyses, trace evidence examinations, and other forensic tests were conducted on the items. In the meantime, defendant went to the police station and then walked over to the victim's house. He was brought back to police headquarters, where he was ultimately charged with the murder and other crimes. Defendant confessed he had murdered the victim to an inmate at the jail, who so testified at defendant's trial.
In November 2003, defendant filed the motion to compel DNA testing that is the subject of this appeal. He sought DNA testing of the cigarette butts, playing cards, yellow hat, lighters, cigarette pack, wine glass, matches, and hair found on the back of the victim's hand. He also sought DNA testing of blood found on the tan pants he wore to buttress his claim that the blood came from a nosebleed and not the victim. He further sought DNA testing of the murder weapon.
In denying defendant's motion, Judge DeStefano correctly recited the statutory standard governing a motion for DNA testing found in N.J.S.A. 2A:84A-32a(d), which provides:
The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that all of the following 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, tampered with, ...