On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 93-02-0399.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sabatino.
Defendant Francisco Villegas, who was convicted of first-degree murder and related weapons offenses after a 1995 jury trial, appeals the trial court's denial of his post-conviction motion for DNA testing under N.J.S.A. 2A:84A-32a. In particular, defendant seeks to compel the State to conduct DNA tests on hairs from a white hat retrieved from the murder victim's car, as well as on five empty beer bottles found in a truck that had been parked behind that car at the time of the victim's shooting. Because defendant's application was both procedurally and substantively deficient under the statute, we affirm the trial court's order.
We need not repeat at length the underlying facts, which are detailed in two prior unpublished opinions of this court. See State v. Villegas, No. A-6775-94 (Nov. 7, 1996) (affirming defendant's conviction on direct appeal), certif. denied, 149 N.J. 141 (1997), and State v. Villegas, No. A-4222-01 (Feb. 26, 2004) (affirming the denial of a new trial, post-conviction relief, and defendant's motion to compel certain fingerprint discovery), certif. denied, 180 N.J. 356 (2004). We summarize certain facts relevant to the present appeal.
Defendant and the murder victim, Carlos Ferreras, were acquaintances. Defendant was also acquainted with Ferreras's mother, Isabel Medrano, and his two minor sons, Charles (who was then age thirteen) and Christopher (who was then age eleven).
On the evening of October 31, 1992, defendant went to Medrano's home in Camden. When she hugged defendant upon his arrival, Medrano felt a weapon. Defendant asked Medrano to call her son, telling her that he wanted to borrow money from him. Ferreras soon arrived, and had dinner with defendant and Medrano. After dinner, defendant left the residence.
Ferreras and his sons then began to leave for his own residence in Philadelphia. Ferreras and Charles got into his Honda sedan, which was parked on the street near his mother's house. An argument then ensued between Charles and Christopher, who was still outside of the car, about which boy would ride in the front passenger seat. At that point, the assailant came up, yelled an epithet at Ferreras, and shot him multiple times. Ferreras died from the gunshot wounds. A bloody white knit cap, laced with a bullet hole, was found by the police near the Honda's passenger side door jamb.
Charles identified defendant as the assailant, telling Medrano that "Paquito" (a nickname for defendant) had shot his father. Charles also identified defendant as the shooter from a police photo array, and reaffirmed his identification at trial. Christopher, the younger brother, recalled that the shooter was wearing a white hat and white sneakers, but he saw only part of the shooter's face and could not specifically identify defendant as the shooter.
The police located a blue pickup truck parked directly behind the victim's Honda, as well as keys to the truck in a vacant lot across the street. The truck belonged to Samuel Gutierrez, whose wife had allowed defendant to borrow it at about 3:00 p.m. on the day of the shooting. According to Mrs. Gutierrez, defendant returned to her house between 7:00 and 7:30 p.m. that night. He told her that the truck had been stolen and repeatedly urged her to report its theft to the police.
The police subsequently arrested defendant, and his prosecution and trial ensued. The State's case largely hinged upon non-forensic proof, including Charles's identification of defendant as the shooter, Medrano's detection of a weapon in defendant's possession before dinner, defendant's nexus with the pickup truck, and his unusual behavior preceding and following the shooting. The State did present expert testimony from a forensic scientist from the State Police, who had examined the white cap recovered from the Honda. The expert noted the presence of what he termed as "bullet wipe" around the hole in the hat. The expert also examined hair fragments from the hat and determined some of those fragments shared the same characteristics as hair samples taken from the victim. A comparison of those fragments from the hat with defendant's own hair was inconclusive. No match was found to fingerprints taken from the Honda.
After the jury convicted defendant of all counts of the indictment, the court imposed a life sentence for the murder conviction, subject to a thirty-year parole disqualifier, plus a consecutive five-year term for the possession of a handgun without a permit.
On direct appeal, defendant raised numerous contentions of error, none of which we found to have merit. After the Supreme Court denied his petition for certification, defendant moved for post-conviction relief ("PCR"). In his PCR application, defendant mainly contended that another individual, Eloiso Colon, had allegedly confessed to the murder while on his deathbed. After an extensive hearing that included testimony from several witnesses, Judge Frank Lario, a different judge than had presided over defendant's trial, dismissed the PCR petition. Judge Lario found Colon's deathbed confession lacking in probative value, and also noted numerous inconsistencies in the allegedly-exonerating proofs tendered by defendant. In addition, Judge Lario rejected defendant's argument that he was deprived in various respects of the effective assistance of trial counsel. The judge also denied defendant's request that the State be compelled to obtain fingerprints from Colon's buried corpse. As noted, we affirmed Judge Lario's denial of PCR relief.
Thereafter, in January 2006, defendant filed a pro se motion with the trial court to compel the State to perform DNA testing on five empty beer bottles*fn1 that had been found in the blue pickup truck. At the same time, defendant renewed his request for an analysis of Colon's fingerprints.*fn2 Defendant accompanied his notice of motion with a short certification, in which he maintained his innocence and reiterated that Colon had confessed to the shooting before his death. In a subsequent letter brief submitted by his public defender, defendant expanded his DNA testing request to include the hairs from the bloody white hat that had been recovered from the Honda.
The State acknowledged that it continues to possess the white hat and the bottles, although it does not have a DNA sample from Colon. The State opposed defendant's request for DNA testing, asserting that his application did not meet the procedural and substantive requirements of the applicable statute, N.J.S.A. 2A:84A-32a.
After considering the parties' submissions and the oral arguments of
counsel, the trial court denied defendant's motion for DNA testing. In
his bench opinion dated July 24, 2009, Judge John T. Kelley*fn3
detailed why defendant's application failed to meet the
requirements of the statute. As a preliminary matter, the judge noted
that defendant had not provided a verified petition attesting to all
of the elements required under N.J.S.A. 2A:84A-32a(a)(1). Beyond that,
the judge ruled that defendant had not demonstrated an entitlement to
DNA testing under the substantive criteria of N.J.S.A. 2A:84A-32a(d),
either as to the hat or the beer bottles. In particular, the judge
concluded that defendant had not demonstrated that the evidence sought
to be tested was material to the perpetrator's identity, as required
(d)(4) of the statute. The judge also found that defendant had
not shown, as required under subsection (d)(5), that if the testing
produced the results that defendant hoped for, such proof would be
sufficiently exculpatory to warrant a new trial.
Judge Kelley recognized that there was testimony*fn4 at trial that the shooter had worn a white hat or cap. Even so, the judge found no need to test the only cap that was recovered from the crime scene because that cap -- which had a bullet hole and contained fragments of the victim's hair -- clearly had been worn by the victim. The judge found it immaterial that defendant also may have been wearing a ...