July 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS ALVES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-3250.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2012
Before Judges Sabatino and Kennedy.
Defendant Carlos Alves appeals from a June 17, 2011 order denying his motion for post-conviction discovery. Defendant was convicted in 2001 of murder, N.J.S.A. 2C:11-3(a), for strangling to death his girlfriend, Maria Lobo. Defendant appealed his conviction and we affirmed. State v.Alves, No. A-4355-00 (App. Div. Jan. 23, 2003). The Supreme Court denied defendant's petition for certification. State v. Alves, 178 N.J. 455 (2004).
Defendant thereafter pursued a post-conviction relief (PCR) application which was denied by the trial court. We affirmed the denial of the PCR application, State v. Alves, No. A-6331-07 (App. Div. April 19, 2010), and the Supreme Court denied certification. 203 N.J. 440 (2010).
Defendant thereafter filed a motion for discovery and on June 17, 2011, the trial court denied the motion, holding that defendant "does not have a right to discovery post-disposition." This appeal followed.
The facts of the crime are taken from our opinion affirming the denial of defendant's PCR application:
According to the State's proofs, defendant and Lobo had dinner together in the[ir] apartment on the evening of Wednesday, August 11, 1999. Later that night, defendant strangled Lobo. The following day, Thursday, August 12, defendant booked and boarded a flight to Portugal, where his father was ill. Lobo, a cleaning woman, did not appear at her work sites on either that day or the following day, Friday, August 13. Her dead body was found on the sofa on Saturday, August 14, after police and firefighters broke into the locked apartment. She was wearing the same clothes that a neighbor had seen her wearing on Wednesday, August 11.
Defendant was located in Portugal and he returned to the United States the next day. After receiving Miranda*fn1 warnings, he was interviewed by the police in Portuguese, and he gave a formal statement. In his statement, defendant denied that he had killed Lobo. He insisted that they had both left the apartment on the morning of Thursday, August 12, stopped at a bakery, and then went off to their respective jobs. He maintained that he was in Portugal when Lobo was fatally attacked. At trial, his counsel suggested that the murderer could have been a third-party intruder into the apartment, because Lobo's pocketbook and keys were missing.
There was competing forensic proof at trial contesting the time of the victim's death, including an analysis of the undigested food found in her stomach post mortem. The State's expert, the medical examiner who performed the autopsy, opined that the victim died between sixty and seventy-two hours before her body was discovered around noon on August 14, thereby supporting the State's contention that she was killed on Wednesday, August 11. The medical examiner further opined that the victim had died approximately two hours after her last meal. A defense expert, on the other hand, estimated that the victim had died only thirty-six to forty-eight hours before she was found (i.e., after defendant had already departed to Portugal).
Defendant did not testify at trial. However, his police statement was admitted into evidence.
[State v. Alves, supra, slip op. at 2-3.]
The discovery that defendant sought by motion filed approximately ten years after his conviction included:
1. Paul Lobo's statement;
2. All "crime scene photos" and investigative notes and reports;
3. DNA forensics on the bed sheets and finger nail clippings;
4. "[P]olice interview statements of defendant recorded and transcribed, of August 15 and 16, both Portuguese and English versions;"
5 A copy of defendant's passport and airline ticket;
6. All house phone and cellular phone bills and records from August 10 through August 14, 1999; and
7. All pathology and medical examiner's reports.
For reasons we now state, we affirm the denial of defendant's motion for post-conviction discovery, except that to the extent defendant's motion sought DNA testing of biological evidence obtained during the investigatory process, the appeal is denied without prejudice to any proper future application made pursuant to N.J.S.A. 2A:84-32a.
"New Jersey courts have the inherent power to order discovery when justice so requires." State v. Marshall, 148 N.J. 89, 269 (internal quotations and citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This power may be invoked in a post-conviction proceeding, although "only in the unusual case." Id. at 270. "In most cases, a post-conviction petitioner will be fully informed of the documentary source of the errors that he brings to the PCR court's attention." Ibid. PCR discovery "'is not a device for investigating possible claims, but a means for vindicating actual claims.'" Ibid. (quoting People v. Gonzalez, 51 Cal. 3d 1179, 275 Cal. Rptr. 729, 800 P.2d 1159, 1206 (Cal. 1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 85 (1991)).
Moreover, consistent with our prior discovery jurisprudence, any PCR discovery order should be appropriately narrow and limited. "[T]here is no post[-]conviction right to 'fish' through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist." However, where a defendant presents the PCR court with good cause to order the State to supply the defendant with discovery that is relevant to the defendant's case and not privileged, the court has the discretionary authority to grant relief.
[Id. at 270-71 (quoting Gonzalez, supra, 800 P.2d at 1205, other citations omitted).]
These principles guide our analysis.
Putting aside, for the moment, defendant's request for DNA testing, defendant appears to seek nothing more than to investigate his case anew, and proffers nothing to suggest that the requested discovery is necessary to vindicate claims of injustice that were not the subject of direct appeal or his prior PCR application. Under such circumstances, we cannot conclude that the trial court erred in denying defendant's motion to require the State to open its investigative files to defendant once again, a decade after his conviction following a jury trial.
However, we do not foreclose defendant from seeking DNA testing of biological evidence if he meets the criteria of N.J.S.A. 2A:84A-32a. The statute was approved on January 8, 2002, and took 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. It is clearly defendant's burden to establish that all of 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 [.]")
Defendant's motion does not address the criteria established by N.J.S.A. 2A:84A-32a to compel DNA testing, and we cannot determine from this record whether he can or cannot meet those criteria in a future motion. We also do not have findings from the trial court on these issues to review. Accordingly, while we affirm the trial court's determination denying defendant's motion for post-trial discovery, we do so without prejudice to any further motion that defendant may pursue in the trial court under N.J.S.A. 2A:84A-32a.