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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...