July 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT THOMAS, A/K/A KOFI BAYETE,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 92-07-0823.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2012
Before Judges Reisner and Simonelli.
Defendant Robert Thomas appeals from the November 30, 2009 order, which denied his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (4) (counts one and six); second-degree burglary, N.J.S.A. 2C:18-2 (counts two and seven); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (counts three and eight); third-degree criminal restraint, N.J.S.A. 2C:13-2 (counts four and nine); and third degree terroristic threats, N.J.S.A. 2C:12-3b (counts five and ten). The trial judge imposed, in part, an extended term of life imprisonment with a twenty-five-year period of parole ineligibility on count one, and a consecutive twenty-year term of imprisonment with a ten-year period of parole ineligibility on count six.
On appeal, defendant raises the following contentions:
POINT I SINCE THE NEWLY DISCOVERED
EVIDENCE WAS EXCULPATORY, THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT ESTABLISHED A VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO SHOW THIRD[-]PARTY GUILT.
POINT II THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE THE CONSEQUENCES THAT THE VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHT TO SHOW THIRD[-] PARTY GUILT HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM AND ON THE DEFENDANT'S RIGHT TO A FAIR TRIAL WARRANTED RELAXATION OF THE PROCEDURAL BAR OF RULE 3:22-5.
POINT III DEFENDANT REASSERTS ALL OTHER
ISSUES RAISED IN DEFENDANT'S PRO SE BRIEFS AND IN [POST-CONVICTION RELIEF] COUNSEL'S BRIEFS.
THE DECISION TO IMPOSE A SENTENCE ABOVE THE PRESUMPTIVE TERM WAS BASED ON FACTS NOT DECIDED BY THE JURY, AND IS ILLEGAL AND CONSTITUTIONALLY INVALID.
THE EXTENDED TERM MUST BE VACATED AS THE STATE'S MOTION WAS UNTIMELY AND THE EXTENDED TERM IMPOSED WAS ILLEGAL.
DEFENDANT IS ENTITLED TO RESENTENCING PURSUANT TO STATE V. PIERCE AND STATE V. NATALE.
THE [POST-CONVICTION RELIEF] COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR ADDITIONAL DNA TESTING BY AN INDEPENDENT EXPERT.
We reject these contentions, and affirm.
The charges against defendant stemmed from his rape of two women in their respective apartments -- S.A., raped in her bed on October 12, 1991, and M.T. on October 23, 1991.*fn2
DNA testing was performed on various articles of evidence collected from both crime scenes. While some of the tests were inconclusive, some showed that defendant could not be excluded as a possible donor. There was also testimony that defendant's DQ Alpha type of 1.24 was the genotype of between 14.7 percent and 19.2 percent of black males. Over defendant's objection, the trial judge admitted the DNA evidence following a hearing on its admissibility. In addition to the DNA evidence, at the trial, the State presented "signature" evidence that the same person committed the two crimes, and both victims identified defendant, whom they personally knew, as their attacker.
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Thomas, No. A-6140-93 (App. Div. Nov. 6, 1996), certif. denied, 149 N.J. 37 (1997).
Defendant filed his first PCR petition on August 14, 1999, again challenging his conviction and sentence, and further contending that he received the ineffective assistance of trial counsel. The trial court denied the petition. We affirmed, and our Supreme Court denied certification. State v. Thomas, No. A-5218-00, certif. denied, 177 N.J. 495 (2003).
In 2005, while represented by pro hac vice counsel from The Innocence Project, defendant filed a motion to compel DNA testing on evidence found at the crime scene relating to M.T. The new testing involved nuclear DNA testing, which was more advanced than the testing admitted at the trial. The State consented to the testing. The new test results confirmed the presence of defendant's DNA at the scene of M.T.'s rape. Thereafter, The Innocence Project withdrew as defendant's counsel.
On September 14, 2006, defendant filed a pro se PCR petition, which incorporated motions he had filed to correct an illegal sentence, pursuant to State v. Natale, 184 N.J. 448 (2005), for a new trial, and to compel additional DNA testing on two hair samples found at S.A.'s apartment -- one was found on the mattress cover of S.A.'s bed, and the other on a fitted sheet. Mitochondrial DNA (mtDNA) testing conducted on the two hair samples concluded that there was a 99.74 percent probability that defendant, or a maternal relative of his, was the source of the hair sample found on the fitted sheet, but excluded him as a source of the hair sample found on the mattress cover. Defendant sought to retain an expert to conduct further DNA testing on these hair samples.
As to his motion for a new trial, defendant argued that the newly discovered exculpatory evidence was material because it presented third-party guilt and placed doubt on the integrity of his conviction for the crimes relative to S.A. Defendant also argued that there was little evidence of his involvement in S.A.'s rape, and his conviction on the charges relating to her resulted from a "spill-over effect" from the stronger proofs concerning M.T. Thus, according to defendant, in light of the newly discovered exculpatory evidence, his pre-trial motion to sever the counts in the indictment should have been granted.
In a November 17, 2009 oral opinion, Judge Thomas Manahan denied defendant's PCR petition and motions. He held that the DNA test result on the hair found on the mattress cover was insufficient to warrant a new trial because, at best, it was neutral, not exculpatory. He noted that the newly discovered evidence did not tilt the case for a new trial because there was signature evidence that the same person committed the two crimes, and both victims identified defendant, whom they knew personally, as their attacker.
Judge Manahan also held that defendant could not re-litigate the severance issue because that issue was raised and rejected on direct appeal. The judge also found that new DNA tests were reliable and properly performed pursuant to statute, and further DNA testing would not have changed the test results. This appeal followed.
Defendant contends in Point I that since the newly discovered evidence was exculpatory, the denial of his PCR petition violated his Fourteenth Amendment right to show third-party guilt. We disagree.
When seeking a new trial based on newly discovered evidence, a defendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted." [State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
"[A]ll three prongs of that test must be satisfied before a defendant will gain the relief of a new trial." Ibid. The newly discovered evidence "must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Id. at 188. The defendant bears the burden to show he is entitled to a new trial. See State v. Johnson, 34 N.J. 212, 223 (stating, "[f]ailure of a defendant to satisfy any one of the three prerequisites of newly discovered evidence is sufficient to warrant a denial of a motion for a new trial"), app. dism. 368 U.S. 145, 82 S. Ct. 247, 7 L. Ed. 2d 188, cert. denied, 368 U.S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961).
The first prong requires proof that the newly discovered evidence was "material." "Material evidence is any evidence that would 'have some bearing on the claims being advanced.'" Ways, supra, 180 N.J. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). However, such evidence must be more than "merely" cumulative, impeaching, or contradictory. Id. at 187. For example, evidence that establishes an "alibi, third-party guilt, or a general denial of guilt would be material." Id. at 188; see, e.g., State v. Robinson, 253 N.J. Super. 346, 362 (App. Div.) (finding evidence that someone other than defendant was at scene of the crime is material because it "goes to the issue of . . . who committed a crime"), certif. denied, 130 N.J. 6 (1992).
Here, defendant failed to satisfy the first and third prongs. The identity of the donor of the hair found on S.A.'s mattress cover was uncertain. Thus, while the new DNA evidence suggested that a third party was in S.A.'s bedroom at some point in time, it did not prove that the third party was in the room at the time of the rape. The new DNA evidence, therefore, was not material because it was purely speculative and did not establish third-party guilt.
In addition, the new DNA evidence would not have changed the jury's verdict. The hair found on the fitted sheet provided greater certainty that defendant was in S.A.'s bedroom on the night of the rape, and in the bed where the rape had occurred. This evidence corroborates S.A.'s identification of defendant as her attacker.
We decline to address the contention raised in Point II that, in light of the newly discovered exculpatory evidence, the trial judge erred in denying the motion for severance. The severance issue was adjudicated on the merits in defendant's prior appeal. State v. McQuaid, 147 N.J. 464, 483-84 (1997); R. 3:22-5. This procedural bar extends even to issues of constitutional dimension. State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992) (holding that the procedural bar of Rule 3:22-5 extends to issues of constitutional dimension), certif. denied, 133 N.J. 436 (1993).
We have considered the contentions raised in Point III in light of the record and applicable legal principles and conclude they are procedurally barred, Rules 3:22-4 and -5, and/or are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2).