STATE OF NEW JERSEY v. DEANNO WRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3544-07T43544-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEANNO WRIGHT,

Defendant-Appellant.

________________________________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-12-0786.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Deanno Wright was found guilty of knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). On November 11, 1998, after denying defendant's motion for a new trial, granting the State's motion to impose an extended term sentence, and considering appropriate mergers, the judge sentenced defendant to life imprisonment with a thirty-year parole disqualifier on the murder charge, and a consecutive life sentence with a twenty-five year parole disqualifier on the aggravated sexual assault charge. We affirmed defendant's conviction and sentence on direct appeal. State v. Wright, No. A-5225-98 (App. Div. March 15, 2001) (slip op. at 19). The Supreme Court denied defendant's petition for certification. State v. Wright, 169 N.J. 606 (2001). On October 2, 2001, defendant filed a pro se petition for habeas corpus relief with the Federal District Court, which was denied without prejudice on July 15, 2003.

On October 5, 2004, defendant filed a pro se petition and amended petition for post-conviction relief (PCR) which included his request for post-conviction DNA testing pursuant to N.J.S.A. 2A:84A-32a(a). On February 8, 2007, he moved pro se for an immediate ruling on the request for DNA testing. On July 25, 2007, without specifically addressing defendant's request for DNA testing, the PCR judge, who was also the trial judge, denied defendant's petition, finding it to be, among other things, time-barred, since it was not filed within five years of defendant's judgment of conviction. R. 3:22-12. On February 20, 2008, defendant filed another pro se motion requesting post-conviction DNA testing. This instant appeal was filed on March 24, 2008.

In its brief, the State advises that defendant's second motion for post-conviction DNA testing was heard by the Law Division after he filed this appeal. On May 21, 2008, the motion judge denied the request; defendant's motion for reconsideration was also denied on July 17, 2008. Defendant has not filed any reply brief contesting these facts.

Defendant raises the following points for our consideration:

POINT ONE

THE FIVE[-]YEAR TIME BAR SHOULD BE RELAXED WHERE THE CONSTITUTIONAL ISSUE RAISED FOR THE FIRST TIME SUBSTANTIALLY CHALLENGED THE RELIABILITY OF THE JURY'S VERDICT AND WAS NOT INTENTIONALLY DELAYED BY THE DEFENDANT.

POINT TWO

THE PCR COURT ERRED BY NEGLECTING THE DEEFENDANT'S MOTION FOR PERMISSION TO CONDUCT A DNA TEST ON SEVERAL ITEMS OF PHYSICAL EVIDENCE.

POINT THREE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT ADEQUATELY CHALLENGE THE STATE'S FAILURE TO COMPARE THE SUBSTANTIAL AMOUNT OF BLOOD COLLECTED AT THE SCENE WITH THE BLOOD OF ANY OF THE NUMEROUS SUSPECTS, INCLUDING THE DEFENDANT.

POINT FOUR

IN SPITE OF THE DEFENDANT'S OBJECTION TO THE STATE'S PEREMPTORY CHALLENGES ON THE BASIS OF SYSTEMATICALLY EXCLUDING SEVERAL POTENTIAL JURORS DUE TO RACE, THE RECORD IS SILENT AS TO WHY THE TRIAL COURT ACQUIESCED.

POINT FIVE

THE RECORD DOES NOT DISCLOSE THE TRIAL COURT'S PRECAUTIONS TO ASSURE THE DEFENDANT THAT THE PRE-TRIAL PUBLICITY WOULD NOT UNDULY PREJUDICE HIS TRIAL ATTORNEY'S COMPLAINT REGARDING A SPECIFIC INSTANCE [SIC].

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We reference our prior decision regarding the evidence adduced at trial.

During the early morning hours of January 8, 1996, [E.W.] was brutally raped and murdered in her Wildwood apartment, where she lived alone . . . . Her mother found her on the bedroom floor. She had been stabbed at least thirteen times in the chest and neck; a broken knife blade protruded from a neck wound and a broken knife handle lay on her chest. She was naked from the chest down, her legs were spread apart, and a large smear of blood ran from the right side of her hip all the way down the outside of her right leg. A pillow and comforter covered her head. A pair of panties were around her left ankle. Her mother called the police and an investigation ensued.

The investigation included interrogation of a number of the victim's male friends and acquaintances. Defendant was an acquaintance whom the victim disliked but to whom she was cordial because of her friendship with his brother . . . . [E]arly in the investigation, [defendant] told the police that he had known the victim since 1993, that they were close friends, and that he had last seen her about two weeks before the murder. He claimed that on the morning of the murder he was with his brother and friends until around 2:00 a.m., at which point his brother, accompanied by Andre Harris, drove him from the apartment of their friend Stephen Anderson to his parents' home, where he spent the rest of the night. That alibi was corroborated by his two sisters, who lived with their parents. However, Harris denied the drive home and indicated that he last saw defendant leaving Anderson's apartment sometime after 1:00 a.m. Finally, defendant denied ever having had sexual relations with the victim.

Defendant's claim that he had never had sexual relations with the victim was definitively proved to be untrue based on uncontroverted DNA evidence. Genital and anal swabs taken from the victim showed the presence of defendant's sperm in copious quantities. Moreover, further DNA testing showed the presence of his sperm in the portion of the carpet taken from under the victim's body near her genital area. Expert opinion further indicated that the sperm had been deposited shortly before the victim was discovered and that she had not gotten up after the seminal material had been deposited. A defense expert testified that the sperm deposits were consistent with sexual activity occurring between twenty-four and forty-eight hours before death, but he also conceded that the sperm could have been deposited as recently as five minutes before death.

[State v. Wright, supra, slip op. at 2-4.]

At the PCR hearing, defendant argued: 1) that the five year time bar contained in Rule 3:22-12 should not apply because his delay was excusable, and application of the bar would result in an injustice; 2) that trial counsel was ineffective because he failed to conduct an adequate pre-trial investigation, failed to have relevant evidence tested for blood and DNA, did not test blood evidence against the exemplars of other suspects, failed to have the exemplar swabs and carpet extractions independently tested, failed to analyze the knives for DNA or fingerprints, and failed to forensically test other evidence recovered from the scene or nearby; and 3) that he "was denied a fair trial due to jury taint." Specifically in this last regard, defendant argued that "the pretrial publicity was extensive and crushing" and that "the State embarked on a strategy to remove the African-Americans from the jury pool . . . ."

The PCR judge concluded that the petition was time-barred and that defendant had not demonstrated excusable neglect. She nevertheless considered the merits of defendant's ineffective assistance of counsel claims and found that enough DNA testing had been performed in this case to have provided trial counsel with a strategic basis not to prod the State to conduct further testing, or conduct the testing himself. The judge observed that defense counsel was "extremely capable" and his strategy of "point[ing] fingers, [and] rais[ing] questions" was sound in light of the overwhelming evidence against defendant. She further found that defendant had not presented any evidence to bolster his arguments regarding jury taint. She denied the PCR petition and this appeal ensued.

II.

Defendant argues that the PCR judge erred in determining his petition was time-barred. As already noted, despite so concluding, the judge considered some of the merits of the application. We agree with defendant that under the unique circumstances of this case, the merits of his PCR petition were properly before the court, despite the fact that it was not filed within five years "of the judgment or sentence sought to be attacked . . . ." R. 3:22-12.

We begin by noting that "th[is] Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Mitchell, 126 N.J. 565, 576 (1992). "The five-year period established by the Rule commences when the judgment of conviction is entered and is generally neither stayed nor tolled by an appellate or other proceeding." State v. Murray, 162 N.J. 240, 249 (2000). In particular, "a defendant's pursuit of federal review ordinarily would not extend the time frame within which to file a PCR petition in State court." State v. Milne, 178 N.J. 486, 494 (2004).

Nonetheless, "[t]he five-year time limit is not absolute." Id. at 492. Courts are authorized to relax the time bar where the defendant has demonstrated excusable neglect, or "if adherence to [the rule] would result in an injustice." State v. McQuaid, 147 N.J. 464, 485 (1997); see Milne, supra, 178 N.J. at 492. The Court has said, "[w]hen determining whether to relax the time bar . . . a court should consider 'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits.'" McQuaid, supra, 147 N.J. at 485 (quoting Mitchell, supra, 126 N.J. at 580).

Defendant was sentenced on November 11, 1998; his PCR petition was filed October 5, 2004, approximately eleven months beyond the Rule's five-year limitations period. He urges us to use the date he filed his federal habeas corpus petition, October 2, 2001, as the effective date of his request for PCR relief. However, as we noted above, the filing of requests for federal review do not routinely toll the limitations period.

Nonetheless, defendant never had his post-conviction claims heard on their merits. Although late, his PCR petition was not so untimely as to prejudice the State's ability to respond to the arguments. We therefore relax the Rule's time constraints pursuant to Rule 1:1-2, and consider the merits of defendant's PCR claims.

III.

A.

Defendant contends that the PCR judge failed to consider his request for post-conviction DNA testing. He urges us to reverse the dismissal of his petition, and remand the matter to enable "the PCR court to determine whether the defendant should be allowed to develop a DNA profile from any of the 100 items of physical evidence in this case . . . ." We find that unnecessary.

First, the request is moot. As we noted, defendant's motion was heard after this appeal was filed. The hearing he requests has already occurred, and his application was denied.

Second, we reject defendant's argument on its merits. The statute permits "[a]ny person who was convicted of a crime and is currently serving a term of imprisonment [to] make a motion . . . for the performance of forensic DNA testing." N.J.S.A. 2A:84A-32a(a). It further provides:

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 . . . ; (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 results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial; (6) the evidence sought to be tested . . . was not tested previously; . . . [or] 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.

[N.J.S.A. 2A:84A-32a(d) (emphasis added); See generally State v. Peterson, 364 N.J. Super. 387, 396-97 (App. Div. 2003) (discussing the statutory framework); State v. DeMarco, 387 N.J. Super. 506, 514-15 (App. Div. 2006) (same).]

It is somewhat unclear what evidence defendant argues should now be tested. In his pro se supplemental petition and brief in support of DNA testing, defendant requested "DNA testing of the evidence found at the crime scene that had been introduced and not introduced at trial by either the State or defense counsel." Specifically, defendant contends that "the fingernails of the victim . . . could contain [DNA] evidence[,]" that "blood evidence . . . was swabbed and never tested," and "two different Caucasian pubic hairs were found at the crime scene and never tested . . . ." Defendant asserts, in conclusory fashion, that "this evidence . . . is clearly probative [of] [his] innocence

. . . ." However, in our opinion defendant has failed to "raise a reasonable probability that if the results were favorable to [him], a motion for a new trial based upon newly discovered evidence would be granted." N.J.S.A. 2A:84A-32a(d).

To meet the standard for "a new trial based on newly discovered evidence, . . . defendant must show that the evidence is . . . 'material . . . and not merely cumulative[,] . . . impeaching[,] or contradictory[;] . . . and . . . that [the evidence] would probably change the jury's verdict if a new trial were granted.'" Peterson, supra, 364 N.J. Super. at 398 (quoting State v. Carter, 85 N.J. 300, 314 (1981)). Defendant need not "make a threshold showing that there is a 'reasonable probability DNA testing will produce favorable results.'" DeMarco, supra, 387 N.J. Super. at 517 (quoting Peterson, supra, 364 N.J. Super. at 396). Rather, "the reasonable probability requirement . . . applies only to the grant of a new trial in the event the results of DNA testing are favorable." DeMarco supra, 387 N.J. Super. at 517 (quoting Peterson, supra, 364 N.J. Super. at 396-97). In deciding whether a new trial motion would probably be granted, we may consider the extent and nature of the State's proofs at trial. State v. Reldan, 373 N.J. Super. 396, 402-04 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

In this case, the copious amount of semen found on the vaginal and anal swabs taken from the victim, as well as that found on the carpet directly below her genital area, were conclusively linked to defendant. Nothing in defendant's multiple PCR submissions and motions for DNA testing actually challenges that conclusion. Furthermore, expert testimony revealed that the semen was deposited in close temporal proximity to the victim's body being discovered, and likely was deposited while the victim was lying on the floor where she died. All this, in conjunction with defendant's denial of having ever had sexual relations with the victim, presents overwhelming proof of his guilt.

Moreover, assuming DNA testing of the blood and Caucasian pubic hairs found at the scene indicated they were not defendant's, but were, instead, those of another acquaintance of the victim, that would not tend to exculpate defendant. Explanations for the hairs being found are numerous. For example, E.W. had a number of sexual partners; it was also well-known that she permitted her friends and acquaintances to use her bedroom for sexual encounters during parties in the apartment. If the blood was not defendant's or the victim's, it may tend to implicate another person, but it does not serve to exculpate defendant. Also, as the State argues in its brief, there were no fingernail scrapings taken from the victim because there was no evidence that the perpetrator was injured at the scene.

Thus, on its merits, defendant's argument must fail. Although not specifically considered by the PCR judge, we conclude that defendant was not entitled to the post-conviction DNA testing he sought.

B.

Defendant argues that he has made a prima facie case of ineffective assistance of his trial counsel warranting an evidentiary hearing. In particular, he claims that counsel neglected to challenge the State's failure to compare blood found on evidence at the scene with the blood of either defendant, or other suspects. He contends further that counsel failed to have the Caucasian pubic hairs found at the scene analyzed as against "two Caucasian neighbors" of E.W., individuals he deemed suspicious because "of their suspected racial bigotry" toward defendant, who is African-American. In short, defendant claims trial counsel's "performance was constitutionally deficient because he did not conduct a thorough or complete investigation."

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In considering this first prong, particularly when the claim relates to trial counsel's strategic decisions, we recognize that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Thus, there exists "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "That presumption may be rebutted if defendant demonstrates that counsel's actions did not equate to 'sound trial strategy.'" State v. Echols, 199 N.J. 344, 358 (2009) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed 2d. at 695) (citation omitted). And, "strategy decisions made after less than complete investigation are subject to closer scrutiny." State v. Savage, 120 N.J. 594, 617-18 (1990).

Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome of the trial. Fritz, supra, 105 N.J. at 58. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2086, 80 L. Ed. 2d at 698).

The PCR judge determined that trial counsel had made a justifiable strategic decision not to demand further forensic analysis of the blood evidence, or perform the testing independently, because the results might further solidify the State's case against defendant. We assume she meant that further forensic testing of the bloody evidence items might have produced positive matches to defendant. However, there is nothing in the record to adequately support this conclusion.

Instead, we think the judge properly rejected defendant's claim because he failed to demonstrate in any meaningful way how further testing of the evidence could have possibly changed the verdict in this case. In other words, assuming arguendo that, if tested, the blood on the items would have matched someone other than defendant or the victim, such a finding would not have rebutted the overwhelming evidence of defendant's guilt. This was premised upon expert evidence that 1) defendant's semen was found on vaginal and anal swabs taken from the victim; 2) that his semen was found on the carpet between the victim's legs; and 3) that it was likely deposited there while the victim lay on her back dying from her wounds.

In short, we conclude that defendant has failed to demonstrate a prima facie case of ineffective assistance of trial counsel. We therefore affirm the denial of his PCR petition on this ground.

C.

Defendant's final two arguments are also unavailing. First, defendant contends that he was denied a fair trial because of the State's improper use of peremptory challenges to exclude African-American jurors from the panel. Second, he contends that he was denied a fair trial because the judge failed to adequately address issues regarding pre-trial publicity surrounding the case.

We reject both arguments because they are procedurally barred by Rule 3:22-4, which prevents a defendant from raising issues in a PCR petition that could have been raised on direct appeal. There are three narrow exceptions to this general exclusion: "(a) that the ground for relief not previously asserted could not reasonably have been raised in a prior proceeding; (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." Ibid.

The record regarding defendant's claim as to the State's improper use of peremptory challenges is sparse, and the facts are gleaned totally from sidebar conferences in response to defense counsel's objections. It suffices to say that the State used four of the eight challenges it exercised in toto to excuse three African-American jurors and one Hispanic juror. The judge required the prosecutor to explain the exercise of the challenges and indicated that she would further address the issue at a later time; however, the record fails to reveal any further consideration of defendant's objection. Defendant argues that "the trial court's failure to timely rule on or decide" the peremptory challenge issue prevented defendant from receiving a fair trial.

The argument could have been raised on direct appeal. In fact, defendant did claim on direct appeal that he was denied the right to a fair and impartial jury based upon "the prosecutor's improper voir dire of potential jurors with respect to their attitudes on the death penalty." State v. Deanno Wright, supra, slip op. at 11. We found that the argument "lack[ed] any weight." Id. at 12. Defendant's subsequent allegation regarding the prosecutor's use of peremptory challenges to exclude minority jurors could have easily been raised at the same time, but was not.

Defendant's claim regarding the judge's handling of pre-trial publicity utterly lacks any merit. He points to two articles that were published in the local newspapers during pre-trial proceedings. The first article was brought to the attention of the court by defense counsel who noted that all parties had already "discussed [t]he voir dire questions that ha[d] been propounded[,]" that counsel was not "ask[ing] for anything additional[,]" and that counsel did not "anticipate . . . asking anything additional" of the jurors. As defendant concedes, the judge and each attorney did question each prospective juror as to whether they had heard or read about the case in the newspapers, and whether they had formed any opinions as to the defendant's guilt or innocence based on what they read or heard. No further objection was raised.

Defendant cites a second article "wherein a prospective juror had called that particular newspaper indicating . . . that he was not happy with delay during the course of the jury selection, [and] that he had missed a number[] of days work[.]" Defense counsel noted that he was concerned about a potential juror being "despondent" enough to make such a phone call and so "bothered by th[e] whole process[.]" Counsel asked the judge to question each juror who had been on "Wednesday or Thursday's panel" to find out which juror made the call to the press and to voir dire that juror to find out whether they were capable of maintaining impartiality. The judge directed defense counsel to "[f]irst confer with Jury Management" on this issue before she make any inquiries as to which juror made the call. Finally, she asked defense counsel to "re-raise the issue" after Jury Management had instructed him on "the practical options." The issue never surfaced again.

Once again, the claim that the proceedings were tainted by publicity, either pre-trial or during jury selection, could have been raised on direct appeal. R. 3:22-4. It was not.

Moreover, in determining whether there is a likelihood that publicity prejudices a criminal defendant

the[re] [is] [a] distinction . . . between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel.

[State v. Biegenwald, 106 N.J. 13, 33 (1987) (internal quotations and citations omitted).]

In the present case, prejudice may not be presumed where defendant only points to two local newspaper articles which seemingly did not address the substance of the case. Compare Biegenwald, supra, 106 N.J. at 21, 35 (where the Court, which did not find presumed prejudice, noted that "[l]ocal and regional papers covered the [defendant's] arrest, investigation, and trial extensively, nicknaming him the 'thrill killer' because, it was reported, he killed only for pleasure."), with State v. Harris, 156 N.J. 122, 145 (1998) (finding presumed prejudice where "a Mercer County newspaper, had conducted a 'vengeance seeking crusade' against defendant[,]" publishing "a 'stream of invective' that had been 'constant,' 'prolonged,' and 'sensationalized.'").

Defendant has failed to establish that the publicity surrounding his trial was pervasive or that it in any way affected the jury's impartial consideration of the evidence. The record fails to reveal that the juror that allegedly called the newspaper to complain about the length of jury selection ever sat on the jury that convicted defendant.

Lastly, we conclude that none of the exceptions contained in Rule 3:22-4 apply to this case. Both issues now raised could have "reasonably . . . been raised in [a] prior proceeding[.]" R. 3:22-4(a). Although the factual circumstances were clearly known at the time of defendant's direct appeal, the issues were not presented.

Additionally, defendant has failed to demonstrate "that enforcement of the bar would result in fundamental injustice[.]" R. 3:22-4(b). In this regard, we note that "there is no bright-line test to determine when a court should apply the fundamental injustice exception," State v. Martini, 187 N.J. 469, 481 (2006), though courts will generally consider

whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. Fundamental injustice will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or . . . if inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice for the individual defendant.

[Mitchell, supra, 126 N.J. at 587 (internal quotations and citations omitted).]

In order to make a showing of fundamental injustice, the error alleged by defendant must have "played a role in the determination of guilt." Ibid. Fundamental injustice should only act to lift the procedural bar of Rule 3:22-4 in exceptional circumstances. Id. at 587-89. It is obvious that defendant has failed to demonstrate exceptional circumstances in this case.

Lastly, defendant has failed to demonstrate a prima facie case of constitutional infringement. R. 3:22-4(c). The factual record regarding the State's exercise of its peremptory challenges, and the publicity surrounding the trial, is simply inadequate.

Affirmed.

 

Defendant was indicted for capital murder, but the jury could not return a unanimous verdict on the death sentence.

The instant appeal was not timely filed and defendant never moved to permit the filing the appeal as within time. Nevertheless, without apparent objection from the State, we exercised our discretion and consider the merits of defendant's appeal.

We have only been supplied with the judge's orders.

Rule 1:1-2(a) reads, in pertinent part, "Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." Effective September 1, 2009, after the PCR judge's decision, Rule 1:3-4 was amended to prohibit any enlargement of the time limits contained in Rule 3:22-12.

Several weeks after the murder and after denying that he ever had sexual relations with E. W., defendant was again interviewed by police. After he was told that his DNA matched that in the seminal fluid recovered from the victim, defendant, in an oral statement, claimed that he and E.W. engaged in consensual sex on the night of January 5, 1996, i.e., approximately forty-eight hours before her body was found. Neither side introduced defendant's second statement before the jury.

We also note that defendant has failed to demonstrate that the evidence is "available and in a condition that would permit the DNA testing . . . ." N.J.S.A. 2A:84A-32a(d)(1).

Defendant also "asserts that his trial attorney did not adequately protect his right to a fair trial." To the extent this is a further claim of ineffective assistance of counsel, it fails. Defendant concedes that defense counsel timely objected twice during the jury selection process to the State's use of its challenges. Therefore, counsel acted appropriately and was not ineffective. See State v. Osorio, 199 N.J. 486, 501 (2009) (noting that "defendant must timely object to the prosecution's use of peremptory challenges during or at the end of the jury selection, but before the petit jury is sworn.") (quoting State v. Gilmore, 103 N.J. 508, 535 (1986)).

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A-3544-07T4

October 28, 2009