On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-07-0778.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 2, 2009
Before Judges Cuff and Waugh.
Defendant Kevin Conley appeals from the denial of his petition for post-conviction relief (PCR). He is serving a term of life imprisonment with a thirty-year period of parole ineligibility following his conviction of murder, aggravated sexual assault, felony murder, possession of a weapon for an unlawful purpose, and burglary. We affirm.
The charges arise from the murder of an eighty-six year old woman in her home. An autopsy revealed that the victim suffered lacerations, bruises, and contusions to her face, right hand and arm, right ankle, and right inner thigh. She also sustained stab wounds over her left eyebrow, behind her right ear, and on her right forearm and wrist; fractures of her right cheekbone, nasal bones, ribs, teeth and right side of the hyoid bone in the neck, as well as a vaginal tear. The pathologist opined that the cause of death was manual strangulation which, combined with her facial injuries, caused hemorrhage into the back of her throat and a collection of blood in her lungs.
The pathologist also opined that the lacerations, contusions, bruises, stab wounds, and fractures were all sustained before death. The victim was found naked with baby oil on her body. A bottle of baby oil was found on her bedside table; semen was found on her nightgown and bed sheet. These circumstances and the vaginal tear suggested the victim had been sexually assaulted.
The evidence presented by the State relied heavily on forensic evidence, including fingerprint and DNA analyses. A supervisory special agent assigned to the DNA analysis unit of the FBI laboratory testified that the semen stains on the bed sheets were consistent with the DNA obtained from defendant. She further testified that her "visual match" of DNA bands obtained from the bed sheet and defendant's blood DNA were confirmed by computer analysis. She also testified that there was sufficient consistency between the male DNA obtained from the bed sheets and defendant's DNA to conclude, albeit not conclusively, that defendant was a contributor of the semen in the samples. Another expert presented by the State opined that the probability that the DNA band matches found in the FBI analysis would happen randomly was less than one in one thousand and that this estimate was very conservative. Finally, the State presented evidence that a fingerprint on the bottle of baby oil found on the victim's bedside table belonged to defendant.
On direct appeal, defendant argued that the testimony of Dr. Goldman, the second DNA expert presented by the State regarding the probability of a DNA match, was improper because it departed from the opinion provided prior to trial and this deviation caused substantial prejudice to defendant. He couched the objection to the testimony as a discovery violation; yet we noted in our opinion that "the record reveals that defense counsel was well aware that studies existed which might yield a higher estimate of the possibility of a random match." State v. Conley, A-6120-96 (App. Div. Mar. 9, 2000) (slip op. at 10).
On direct appeal, defendant also challenged admission of the fingerprint evidence. Defendant argued that destruction by the FBI of the only life-sized photo of the bottle with the fingerprint compromised his attempt to prove that the fingerprint had been planted on the bottle by someone in an attempt to implicate him. An extensive evidentiary hearing was conducted following which the judge held there was no evidence to support a conclusion that the FBI methodology was faulty. We affirmed noting that there was no evidence of bad faith by the local police, prosecutor's investigators or FBI or that there had been any departure from established forensic protocols. Id. at 21.
On appeal, we also rejected an argument that a report by a juror after return of the verdict required an interview of the juror. We noted that the frightened juror reported no more than that she believed that defendant tried to intimidate jurors and witnesses. Notably, the juror did not report that defendant had succeeded. Id. at 13-14.
In his petition for PCR, defendant focused once again on the forensic evidence presented at trial and argued that trial counsel provided ineffective assistance of counsel by failing to challenge or investigate the probability evidence presented by Dr. Goldman. He also contended that appellate counsel provided ineffective assistance of counsel because he did not investigate, discover and raise the issue of whether a juror should have been excused for cause after she admitted an emotional inability to continue service. He also argued that the prosecutor had withheld evidence, and defendant was unlawfully detained when the State obtained a fingerprint from him. Finally, he contends he "requires and is entitled to" a DNA expert to "present complex scientifically detailed evidence of DNA analyses, protocols, and processes" to demonstrate departure from established protocols.
Judge Triarsi denied the petition. In doing so, the judge noted that defendant provided nothing to controvert the DNA evidence presented at trial and observed that the DNA evidence remained available for examination. He also noted that defendant has never contested that the fingerprint on the baby oil bottle was his and had presented no evidence in his petition to support his contention that it had been "planted." Finally, Judge Triarsi found that the frightened juror issue had been ...