January 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN MILNE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 86-07-0526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011
Before Judges Messano and Kennedy.
Defendant Shawn Milne appeals from an October 21, 2008, order denying his post-conviction motion for DNA testing under N.J.S.A. 2A:84A-32a. Defendant was convicted in 1987 of murder, N.J.S.A. 2C:11-3a(1) and (2), and aggravated sexual assault, N.J.S.A. 2C:14-2a(6), and was sentenced to consecutive custodial terms aggregating fifty years with forty years of parole ineligibility. On his first appeal, we reduced the aggregate parole ineligibility term to thirty years and otherwise affirmed the judgment. State v. Milne, No. A-0038-87 (App. Div. Oct. 13, 1989). The Supreme Court denied defendant's petition for certification. State v. Milne, 121 N.J. 612 (1990).
Defendant thereafter pursued a series of post-conviction relief (PCR) applications as well as an application for a writ of habeas corpus in the United States District Court for the District of New Jersey. These applications for post-conviction relief raised issues related to defendant's post-conviction claim of "diminished capacity" and his claim that the effects of anti-psychotic drugs administered to him precluded his understanding of and participation in trial. These claims, as well as a claim of ineffective assistance of counsel, were denied.
For the reasons that follow, we affirm the order of the trial court denying defendant's motion for DNA testing.
On November 14, 1985, defendant, then age fifteen, was charged in a delinquency complaint with an offense which, had he been tried as an adult, would be murder under N.J.S.A. 2C:11-3a(1) and (2). The State moved for a referral of jurisdiction from the Family Part to the Law Division in order to try defendant as an adult. We reversed the denial of that motion, State in re S.M., 211 N.J. Super. 675 (App. Div. 1986), and on July 30, 1986, the Ocean County grand jury returned Indictment 86-07-0526 charging that defendant on November 12, 1985, purposely or knowingly caused the death of B.H., contrary to N.J.S.A. 2C:11-3a(1) and (2) (count one); caused the death of the victim during the commission of a sexual assault, contrary to N.J.S.A. 2C:11-3a(3) (count two); and used physical force or coercion upon B.H. during unlawful commission of sexual penetration causing severe personal injury, contrary to N.J.S.A. 2C:14-2a(6) (count three).
Trial commenced on June 10, 1987, and on June 29, 1987, the jury convicted defendant of knowing and purposeful murder and aggravated sexual assault.*fn1 Defendant, as noted, subsequently appealed and pursued various PCR applications, none of which were successful.
The facts about the crime are taken from our opinion affirming the judgment of conviction:
On November 12, 1985, thirteen year old [B.H.], the victim, was reported missing by her parents. She had last been seen a few hours earlier by a friend who had accompanied her to a convenience store on Fischer Boulevard in Toms River, New Jersey, where they had purchased candy and nuts. At approximately 11:00 p.m. that evening, the police found [B.H.'s] body, nude from the waist down, in a creek located in a wooded area near Garfield Avenue, which runs parallel to Fischer Boulevard. The autopsy revealed that [B.H.] died from "asphyxia due to drowning, associated with lots of injuries to the brain." The medical examiner also concluded that she had been sexually assaulted, based on findings that the victim's anus was dilated, the feces had been impacted and her hymen was torn.
On November 13, 1985, police investigators observed drag marks and found other items which led them to defendant's backyard where they observed a pair of girl's panties and a blanket. Thereafter, they found a tool box with defendant's name on it, which contained the victim's pants, shoes and socks.
When defendant arrived home from school on November 13th, he and his mother were taken to police headquarters for questioning. Thereafter, he and his father went to the Ocean County prosecutor's office for further questioning. At 8:55 p.m., defendant signed a form which indicated that he was waiving his Miranda rights. At 12:15 a.m., on November 14, 1985, defendant again signed that form and agreed to make a formal tape recorded statement in which he recounted that [B.H.] had approached him in the wooded path behind his house. When she came at him with a knife, he threw a board at her rendering her unconscious. He then dragged her body from his backyard, through an adjoining wooded path, across the street and left the body in the creek where it was found. While he was doing this, he claimed, the victim's pants, shoes and socks had fallen off. [slip op., p. 2-3]
The items defendant seeks to test for DNA are not precisely identified on appeal. In the appellate brief, defense counsel asserts:
[D]efendant sought permission to test the following items: three pairs of panties, two comforters, all male clothing presented to the jury, and blood samples taken from him and his brother, a possible suspect.
However, in his pro se supplemental brief, defendant identifies a list of items that is somewhat different:
Q.14*fn2 - multi-colored blue blanket found behind Milne residence pool; Q.13 - cut blue underwear alleged to be victim's; CIU #65 - blood stained underwear from Monte Carlo; Q.44 - blue women's underwear with "A" blood type; Q.22 Blouse from [B.H.];
Q.26-27 Anal Smears; Q. 28-29 Vaginal Smears; Q.9 Sweater from [B.H.]; (reference number not registered) -- [B.H.'s] pants. . . .
In addition, the reasons advanced for DNA testing by defendant's counsel and by defendant differ. Defendant's counsel, in the appellate brief, avers that DNA testing is sought "to demonstrate the possibility of third party guilt based on [defendant's] belief that many of these items of clothing, which were introduced at trial, did not contain his DNA, but rather, may have contained the DNA of the State's other suspect, defendant's brother."*fn3
In his supplemental brief, defendant offers a different rationale:
[D]NA testing would do two things: show that the State presented at Shawn Milne's trial, Gary Milne's blood stained clothing (from a motor-cycle accident) and that the women's cut blue underwear Q.13, and Q.44 blue underwear with the "A" blood type did not belong to the victim who was "O" Blood type..if the clothing did not belong to either the victim, or the Defendant, the clothing should not have been there to taint the jury.
He adds that the items he seeks to have tested "were relevant to not only his identity but also to the identity of the State's victim, and theory."
Our analysis of defendant's claims is hampered to a degree by his failure to furnish transcripts of the entirety of the trial. While this failure to include all the trial transcripts makes it difficult to identify and evaluate all the items the State introduced at trial, we nonetheless have a sufficient sense of the case to address defendant's appeal.
The statute governing DNA testing, N.J.S.A. 2A:84A-32a, was approved on January 8, 2002, and was to take effect on the 180th day after enactment. L. 2001, c. 377, § 4. It imposes both procedural and substantive requirements upon a defendant who seeks to have DNA testing conducted after he has been convicted of a crime. The procedural requirements are as follows:
a. Any person who was convicted of a crime and is currently serving a term of imprisonment may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.
(1) The motion shall be verified by the convicted person under penalty of perjury and shall do all of the following:
(a) explain why the identity of the defendant was a significant issue in the case;
(b) explain in light of all the evidence, how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted;
(c) explain whether DNA testing was done at any prior time, whether the defendant objected to providing a biological sample for DNA testing, and whether the defendant objected to the admissibility of DNA testing evidence at trial. If evidence was subjected to DNA or other forensic testing previously by either the prosecution or the defense, the court shall order the prosecution or defense to provide all parties and the court with access to the laboratory reports, underlying data and laboratory notes prepared in connection with the DNA testing;
(d) make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought; and
(e) include consent to provide a biological sample for DNA testing. [N.J.S.A. 2A:84A-32a(a)(1)]
N.J.S.A. 2A:84A-32a(a)(2) and (b) set forth notice requirements and address the hearing on a motion for DNA testing.
N.J.S.A. 2a:84A-32a(d)(1) to (8) lists the substantive requirements a defendant must meet to compel DNA testing:
(d) 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, replaced or altered in any material aspect;
(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 result were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion my consider any evidence whether or not it was introduced at trial;
(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;
(7) the testing requested employs a method generally accepted within the relevant scientific community; and
(8) the motion is not made solely for the purpose of delay. [Emphasis added]
Given the language of the statute, it is clearly defendant's burden to establish that "all" the elements necessary for DNA testing have been fulfilled. See State v. Peterson, 364 N.J. Super. 387, 392-93 (App. Div. 2003)("The . . . statute providing for post-conviction DNA testing of evidence sets forth eight conditions a convicted person must establish to be entitled to such testing [.]")
Here, the State does not appear to contest that defendant can fulfill the elements of subsections (d)(1),(2),(6), (7) and
(8). Rather, the State asserts that given the "overwhelming evidence" of defendant's guilt and the factually corroborated statement given by defendant shortly after the victim's body was found, defendant cannot establish the elements required by
(d)(3), (4) and (5). Indeed, the trial judge concluded that defendant had failed to establish these elements and denied defendant's motion for DNA testing on that basis. Consequently, we turn to an examination of N.J.S.A. 2A:84A-32a(d)(3), (4) and (5).
In Peterson, supra, defendant had been convicted of felony murder and aggravated sexual assault. Police found the deceased victim in a field and recovered from her body sticks inserted into her mouth and vagina. In addition, the police found blood under the victim's fingernails, semen on her pants and various hair samples on her body. Defendant was convicted on the basis of statements he made to co-workers describing the crime in detail before police released information to the public and statements he allegedly made to an inmate while awaiting trial admitting guilt. Also, the State introduced evidence that hairs recovered from the victim's body and in the area had the same characteristics as defendant's hair.
The trial judge denied defendant's request for DNA testing of the hairs, semen and the blood beneath the victim's fingernails and found, among other things, that identity was not a "significant issue" at trial. We reversed, and observed that defendant's identity as the perpetrator was the "only issue at trial" and that defendant not only took the stand to deny his involvement in the crime, but also presented an alibi. 364 N.J. Super. at 395. We explained that the "strength of the evidence against a defendant is not a relevant factor in determining whether his identity as the perpetrator was a significant issue" and that "[i]f DNA testing shows that defendant was not the source of [the biological evidence], the evidence of defendant's guilt could appear a lot less overwhelming than it did at the time of trial." Id. at 396.
Similarly, in State v. DeMarco, 387 N.J. Super. 506 (App. Div. 2006), we reversed a trial court ruling denying an application for DNA testing by defendant, who had been convicted of the 1990 murder of his girlfriend. The victim's body had been discovered in a remote and wooded area. She had been stabbed at least twenty times. Various oral, anal and vaginal swabs were taken from the victim, and analysis of the oral swab revealed semen which defendant's expert contended could not have come from defendant. Given that the evidence against defendant was largely circumstantial and that advances in DNA analysis would allow the defendant to possibly identify the source of the oral swab as a "known sex-offender" in the area, the court found defendant had met the requirements of the statute. Id. at 509, 519.
A reading of both DeMarco and Peterson leads to the conclusion that the threshold for showing that identity was a "significant issue" at trial is ordinarily quite low. 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 the instant case, although defendant's statement was admitted at trial and defendant did not testify, the identity of the perpetrator was a significant issue. Much effort was made by defense counsel to undercut defendant's statement to police officers and to establish that defendant could have overheard details about the crime before giving his statement. Accordingly, we conclude that defendant has met the requirement of N.J.S.A. 2A:84A-32a(d)(3) and we turn to the question of whether defendant has also met the requirements of subsections (d)(4) and (5).
Subsection (d)(4) requires defendant to make a prima facie showing that the evidence sought to be tested is "material" to the issue of defendant's identity as the perpetrator and (d)(5) requires defendant to raise a "reasonable probability" that if the DNA testing were favorable to defendant, "a motion for a new trial based upon newly discovered evidence would be granted."
Because these issues are so closely intertwined, we consider them together.
On the issue of whether favorable DNA tests would raise a reasonable probability that a motion for a new trial would be granted, the same standards apply as for any newly discovered evidence. Peterson, supra, 364 N.J. Super. at 398. 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)).
All three prongs of the Carter test must be satisfied before a new trial is warranted. State v. Ways, 180 N.J. 171, 187 (2004). "The burden of establishing the necessary factors is upon the defendant." State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L.Ed. 2d 103 (1959). When evaluating such newly discovered evidence a court must be mindful that a jury verdict should not be disturbed "except for the clearest of reasons." Ways, supra, 180 N.J. at 187. "Thus, a new trial would be granted where 'the State's proofs are weak, when the record supports at least a reasonable doubt of guilt, and where there exists a way to establish guilt or innocence once and for all.'" State v. Reldan, 373 N.J. Super. 396, 402 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005)(quoting State v Thomas, 245 N.J. Super. 428, 436 (App. Div. 1991), appeal dismissed, 130 N.J. 588 (1992)).
"Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that . . . if credible and material [it] is . . . of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Ways, supra, at 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. Muchalski, 45 N.J. 97, 108 (1965); State v. Artis, 36 N.J. 538, 541 (1962).
Unlike Peterson and DeMarco, defendant's identity and presence at the scene would not be disproved by the proposed DNA testing. Defendant, in a formal statement given on November 14, 1985, admitted that on November 12, 1985, he met B.H. "[i]n the woods next to [his] house." He alleged she had a "knife out" and that when she approached him, "[He] had thrown a board, like a two by three or something, and hit her in the back of the head," knocking her unconscious. He then dragged her into his yard, during which "[h]er shoes, her socks, her pants and her underwear had fallen off."
At this point, according to his statement, "[he] went behind [his] pool and grabbed a mattress cover and wrapped her up in it." He thereafter carried and dragged her to a swamp, where he found a duffle bag, put it over her head and brought her over to a stream, where her body was later found. Defendant subsequently went back over his route and retrieved her pants, socks and shoes - he alleged he could not locate her underwear -and put them in his toolbox, which he then hid beneath his brother's Mustang located in the driveway of defendant's home.
While an uncorroborated confession, later challenged by a defendant, may not in itself overcome the probability that newly discovered evidence would alter a jury's verdict, an uncorroborated confession is not what we find in this case.
Here, defendant's statement was fully corroborated by the physical evidence at the scene. The victim's clothing was located where defendant said he placed it. The board defendant admitted he used to strike the victim was located and had evidence of the victim's blood on it. The victim's injuries were consistent with defendant's statement. Police discovered drag marks where defendant said he dragged the body. The victim was found at the exact spot where defendant admitted he left it.
The State at trial presented expert testimony that the victim died by drowning and that she had been sexually assaulted. Defendant's expert, Dr. Michael Baden, agreed that the cause of death was drowning "based on the autopsy findings and various police reports and statements that she was unconscious when placed into the water and that she died as a result of that placement." However, he disagreed that the victim had been sexually penetrated, noting "[t]here was no evidence of semen. There is no evidence of other injuries to the vaginal area . . . ." He similarly found no evidence of anal penetration.
John Ray Brown, a forensic serologist with the Federal Bureau of Investigation, testified at trial. He had obtained blood samples from defendant, his now deceased brother, Gary, and from the decedent. He also examined various items presented to him for blood evidence. He stated that the victim's blouse (Q.22) had evidence of human blood, that he could eliminate defendant and his brother as the source of the blood, and could not eliminate the victim "as a possible source." He also found blood on the victim's pants (Q.33) and he could not eliminate either defendant or the victim as a "possible source." Vaginal and anal smears taken from the victim, Q.26 to 29, showed no presence of semen. Q.13, a pair of woman's panties, revealed no trace of semen. Also, a pair of men's underwear found in a car parked in defendant's driveway (Q.20) had blood evidence, but not from the victim.*fn4
DNA testing of these items would not produce evidence "material to the issue of the [defendant's] identity as the offender." N.J.S.A. 2A:84A-32a(d)(4). Defendant's statement to police concedes that he was present, struck the victim with a piece of lumber rendering her unconscious, wrapped her in a mattress cover and a duffel bag and dumped her in the spot where she was later found dead. All of this was corroborated by physical evidence. The victim's clothing contained no semen and none was found in the vaginal and anal smears. Consequently, DNA testing could not in any way show that someone other than defendant had sexual contact with the victim. Indeed, the State offered no serological evidence to substantiate its claim that the victim was sexually assaulted. Rather, the State's case for sexual assault was based purely upon an anatomical examination of the victim's body by the State's medical examiner and it was met by the testimony of defendant's own medical expert.
In Reldan, supra, the Appellate Division upheld the denial of DNA testing in a circumstance similar to that at issue here.
The defendant was convicted of murdering two women. He wanted to test hair samples found in his car. The trial judge denied the application finding that the results, if successful, would not warrant a new trial, because even if the samples were not from the victims, such a determination would not be exculpatory. In affirming, the Appellate Division stated that "[d]efendant cannot compel the State to release the evidence for DNA testing where the evidence at trial was overwhelming and the defendant did not present a defense or alibi that would be consistent with the explanation the DNA result might supply." Reldan, supra, 373 N.J. Super. at 402-03.
Such reasoning is applicable here. No semen was found at the scene. The evidence for sexual assault was physical - not serological. Testing apparel found in the washer or dryer in defendant's home does not exculpate him or implicate anyone else. The fact that the victim's blood was found on her pants and blouse corroborates defendant's statement that he struck her with a board, but testing it would not exculpate him in any way. Moreover, the panties and jeans found to have blood stains were not discovered at the crime scene and were not alleged to have been worn by either defendant or the victim.
Further, defendant has contended that the blood stained jeans and men's underwear should not have been the subject of testimony before the jury since no apparent attempt was made to connect those items to defendant or to the crime. We do not address this issue because it is irrelevant to the question of DNA testing that is before us. We do observe, however, that the apparent irrelevance of such evidence further underscores that testing these items cannot be "material" to the identification of defendant as the perpetrator of the crime alleged in the indictment.
We conclude that defendant has not made a showing sufficient under the statute to warrant DNA testing. The statute provides that the court "shall not grant the motion for DNA testing" unless it determines that defendant has established all of its factors under N.J.S.A. 2A:84A-32a (d)(1) to (8).
Having failed to establish the elements required by subsections (d)(4) and (5), defendant's motion to compel DNA testing was properly denied.