State of New Jersey v. RICHARD JEFFERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5125-06T4

State of New Jersey,

Plaintiff-Respondent,

v.

RICHARD JEFFERSON,

Defendant-Appellant.

______________________________

December 7, 2009

Submitted September 23, 2009 Decided

Before Judges C.L. Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 86-11-1772.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Richard Jefferson appeals from a final order denying his post-conviction application for DNA testing, which he contends would prove that he was innocent of the crimes for which he stands convicted. We affirm.

Defendant was indicted on November 14, 1986, and charged with murder, contrary to N.J.S.A. 2C:11-3; felony murder, contrary to N.J.S.A. 2C:11-3a(3); armed robbery, contrary to N.J.S.A. 2C:15-1; unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5; and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. He was tried in 1987 and was convicted of murder, theft as a lesser-included offense to robbery, and the two weapons offenses; he was acquitted of felony murder. The judge sentenced defendant to life in prison with thirty years of parole ineligibility on the murder conviction and lesser concurrent terms for the remaining convictions. We affirmed the convictions and sentences on March 7, 1990. State v. Jefferson, No. A-638-87 (App. Div.) (Jefferson I), certif. denied, 122 N.J. 189 (1990).

On June 16, 1992, defendant filed his first petition for post-conviction relief (PCR), which the PCR judge denied on February 4, 1994. We again affirmed on July 14, 1997. State v. Jefferson, No. A-5439-93 (App. Div.) (Jefferson II), certif. denied, 152 N.J. 187 (1997). Defendant next filed a writ of habeas corpus in the United States District Court of New Jersey, which was denied. Jefferson v. Morton, No. 98-5240 (D.N.J. Aug. 9, 1999). The United States Court of Appeals for the Third Circuit denied a certificate of appealability on October 24, 2000, and denied a petition for rehearing on March 26, 2001.

On November 3, 2003, defendant filed a motion in the Law Division, Monmouth County, for post-conviction DNA testing. Defendant argued that the DNA evidence would sufficiently support his defense theory that another individual killed the victim. Judge Francis P. DeStefano denied defendant's motion in a written order and opinion dated March 21, 2007. This appeal followed.

The facts relevant to defendant's conviction have been recited in detail in our two prior opinions, Jefferson I, supra, slip op. at 2-6, Jefferson II, supra, slip op. at 2-7, and are not repeated here. Suffice it to say that the victim was found lying dead on the floor of his home from a blow to the head with a hammer. He had been lying down on a couch when he was struck and then rolled onto the floor. Defendant and others had been visiting the victim's home and defendant was the last to leave. He claimed he returned and found the victim dead on the couch with a hammer in his head and money scattered across the floor. He admitted rolling the body onto the floor, that the hammer might have been his, and that it might have his fingerprints on it. He denied murdering the victim, but gave a number of conflicting accounts of his movements that night to Doug Johnson, who gave defendant some clean clothing before going out to purchase cocaine.

The next day, defendant reported the murder to the police and then went to a bar, where he gave another account of the murder to the bartender. During the investigation, the police gathered several items from the victim's home, including cigarette butts, playing cards, a yellow hat, a cigarette pack, a wine glass, matches, hair, and the hammer. The police later collected defendant's shorts, shirts, and pants from defendant and Johnson. Fingerprint analyses, trace evidence examinations, and other forensic tests were conducted on the items. In the meantime, defendant went to the police station and then walked over to the victim's house. He was brought back to police headquarters, where he was ultimately charged with the murder and other crimes. Defendant confessed he had murdered the victim to an inmate at the jail, who so testified at defendant's trial.

In November 2003, defendant filed the motion to compel DNA testing that is the subject of this appeal. He sought DNA testing of the cigarette butts, playing cards, yellow hat, lighters, cigarette pack, wine glass, matches, and hair found on the back of the victim's hand. He also sought DNA testing of blood found on the tan pants he wore to buttress his claim that the blood came from a nosebleed and not the victim. He further sought DNA testing of the murder weapon.

In denying defendant's motion, Judge DeStefano correctly recited the statutory standard governing a motion for DNA testing found in N.J.S.A. 2A:84A-32a(d), which 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 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 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 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.

The judge then explained his reasons for denying the motion with respect to each piece of evidence as follows:

1. The Cigarette Butts, Playing Cards, Yellow Hat, Lighters, Cigarette Pack, Wine Glass, and Book of Matches

At trial, it was established that the victim was a known drug dealer who used his Union Beach home to distribute CDS. Throughout the night of the murder, numerous customers came to the house to make drug purchases. In addition, the victim's friends and acquaintances gathered at the home to ingest cocaine, to drink beer, and to "party." At one point, according to the defendant, as many as thirteen people, excluding himself, the victim, and the victim's wife, were present at the house. One guest, Free Holzfuss, played poker with the victim for approximately two hours and won nearly $6,000.00.

. . . .

As part of the necessary conditions required to secure a grant of the motion, the defendant must make 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. N.J.S.A. [2A:]84A-32a(d)(4). The defendant has not met this burden. The victim's house was a known distribution point for CDS. Many people often gathered there to consume alcohol and ingest narcotics. Items such as cigarette butts, playing cards, lighters, cigarette packs, glasses, and misplaced clothing are common items consistently found in such an environment. Moreover, many of the aforementioned items, particularly lighters, cigarettes, cigarette packs, and drinking glasses, are routinely passed around amongst guests during these social gatherings. If forensic testing performed on these items yields DNA belonging to a third-party, it would merely confirm that multiple persons were present in the house sometime before the murder. In no way would favorable tests exonerate the defendant or somehow implicate a third party. Consequently, the defendant has not show[n] how these items are material [to] his identity as the offender.

Additionally, the defendant has failed to establish a reasonable probability that a new trial would [be] granted if the DNA results from these items proved favorable. . . .

. . . .

In this instance, favorable DNA evidence on these items would not warrant a new trial. The evidence would only confirm that multiple partygoers were present sometime prior to the murder. As such, the evidence is merely cumulative of facts established at trial. Moreover, the evidence is not the sort that would probably change a jury's verdict if a new trial were to be granted.

. . .

2. Blood on the Tan Pants

. . . .

[I]f DNA testing established the defendant as the source of blood, it would not provide a sufficient basis for granting a new trial. Foremost, the defendant was already shown to have been the source of blood. At trial, an expert testified about two samples lifted from the pants. One sample contained a marker attributed to the defendant. A second marker contained a generic marker found in both the defendant's and victim's blood. However, the second genetic marker is also found in 92.9% of the Caucasian population. If the second marker forms the basis of the suggestion the defendant speaks of, it can hardly be considered damning, especially considering its prevalence among the population at large.

Secondly, it was uncontroverted that the defendant was not even wearing the pants at the time of the murder. Rather, the defendant received the pants from another party as part of a change of clothes sometime after the murder. Considering the above facts, defendant already established that he was the source of blood, or at a minimum, that the blood came from some source other than the victim. Consequently, any favorable DNA results would merely be cumulative of evidence already offered and would not be the type which was [sic] change a jury's verdict. As such, the defendant has failed to meet the requirements for a new trial and no DNA testing is warranted.

3. The Hair

. . . .

Evidence at trial showed that the [victim] was likely killed while lying down on a couch; either asleep or in a drug or alcohol induced stupor. There was no sign of a struggle, and when the police discovered the body, the victim had rolled from the couch on to the floor. The single strand of hair was not part of a clump and was not found in a clenched fist. Rather, the hair was located on the back of the victim's hand. It is much more likely that the hair was originally on the floor and only became attached to the victim's hand when his body fell to the floor sometime after he was murdered. As previously noted, the residence was frequented by many people during the night of the murder. If DNA results are favorable, meaning they come back to a party other than the victim and defendant, it would only substantiate that fact. As such, the evidence is cumulative of what was already offered at trial. Moreover, a single strand of hair stuck on the back of the victim's hand is not the sort which would change a jury's verdict if a new trial were granted, especially considering the circumstantial evidence of defendant's guilt.

Furthermore forensic, though not DNA, testing was performed on the hair prior to the original trial. Those tests excluded the defendant and the victim as the possible source of the hair. Therefore, even if DNA tests are favorable showing the hair belongs to someone else the evidence, again, would be cumulative of what was already known. Moreover, this evidence would not exculpate the defendant and inculpate a third party and therefore is not the type which would change a jury verdict if a new trial was granted. Consequently, no testing is warranted as the defendant cannot demonstrate a reasonable probability that a new trial would be granted.

4. The Hammer/Murder Weapon

. . . .

A necessary prerequisite for DNA testing under N.J.S.A. 2A:84[A]-32a is that the object 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. See N.J.S.A. 2A:84[A]-32[a](d)(2). The state has provided an affidavit from Steven Padula, a Captain with the Monmouth County Prosecutor's Officer. [sic] . . .

According to Captain Padula, the hammer in questions [sic] was handled by several individuals during the course of the original investigation. . . . During the autopsy, the hammer was removed from the forensic packaging for examination and comparison of the wounds inflicted on the victim. . . .[T]he hammer was removed from the packaging and subjected to potential cross-contamination.

Furthermore, the hammer underwent cyanoacrylate ester fuming to determine the presence of latent fingerprints. . . .

. . . .

[T]his court cannot find a sufficient chain of custody establishing that the hammer was not altered or tampered with in any material aspect. Rather, it appears to be quite the opposite. Circumstances surrounding the original investigation reveal that the hammer was not subject to modern forensic collection techniques conducive to the preservation of DNA evidence. These antiquated methods of evidence gathering employed at the time of murder, when coupled with the fact that DNA degrades over time, demonstrates a strong possibility that no viable DNA specimens survived.

Moreover, even if viable DNA samples exist, they are likely contaminated. . . . Both experts . . . agree that the collection methods employed during this time did not employ practices necessary to ensure uncontaminated DNA specimens for the simple fact that DNA was not used in forensic investigations in 1986.

. . . .

N.J.S.A. 2A:84[A]-32[a](d)(2) requires that a sufficient chain of custody be establish[ed] showing that the evidence was not altered or tampered with in any material way. As stated more fully above, this court cannot find the presence of such a chain of custody. Accordingly, because the defendant cannot meet a necessary prerequisite under [N.J.S.A.] 2A:84[A]-32[a](d)(2), DNA testing is unavailable.

. . . .

To obtain testing under [2A:]84A-32a(d)(5), the defendant must demonstrate 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." N.J.S.A. [2A:]84A-32a(d)(5). . . .

In this instance, the defendant cannot satisfy this burden. The murder weapon was likely one of the two hammers stored within the home. This particular home was a known distribution center for CDS and was often frequented by both users and purchasers of narcotics. By the defendant's own admission, upwards of sixteen people were present on the night of the murder and anyone of them could have had access to these hammers. Accordingly, even if the results of the DNA tests are favorable, it would merely be cumulative of what was already known, that several persons were present within the home at some point prior to the murder. Again . . . this evidence would neither prove nor disprove the defendant's guilt or innocence; nor would the finding of a third-party's DNA prove that party to be the perpetrator. At best, favorable results would establish that at some prior time, someone else may have touched the hammer handle. Consequently, the evidence is cumulative and not the sort which would change a jury's verdict if a new trial was granted, especially in light of the circumstantial proof of defendant's guilt.

Alternatively, even if the hammer came from outside the home, the evidence would not warrant a new trial based on newly discovered evidence. It cannot be stressed enough that this evidence is not synonymous with blood or semen left on a victim's body. Favorable DNA results would not exculpate the defendant while inculpating a third-party. In light of the circumstantial evidence of defendant's guilt, such results would not be the type of evidence which would likely change a jury's verdict should a new trial be granted. Because the defendant cannot satisfy a threshold requirement of N.J.S.A. [2A:]84A-32a, no DNA testing is warranted.

Defendant essentially argues that Judge DeStefano incorrectly applied N.J.S.A. 2A:84A-32a to the facts of the case. We owe no special deference to a trial judge's legal conclusions: "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Thus, our review is plenary.

Defendant claims that favorable DNA test results would be relevant and material to his misidentification defense, could affect a jury verdict, would be more conclusive than other forensic tests, and would, therefore, be more persuasive. Furthermore, defendant argues with regard to the hammer that any potential for cross-contamination should not have been an automatic ground for denial of his motion. Finally, defendant argues that the trial court erroneously relied on other evidence establishing his guilt as a basis for denying the motion. Based on these arguments, defendant contends that, if the results of the requested DNA tests are favorable, he has raised a reasonable probability that a motion for a new trial would be granted.

Conversely, the State argues that the trial court did not err because defendant did not adequately prove the elements of N.J.S.A. 2A:84A-32a. In focusing on subsection (d)(5), the State claims that the circumstantial evidence of the case militates against ruling in favor of defendant. Furthermore, the State argues that all of the requested DNA testing, even if favorable, would be either cumulative or "not of the sort that would alter a jury's verdict in this case." Therefore, according to the State, defendant is unable to demonstrate a reasonable probability that a new trial would be granted upon receipt of favorable test results. The State essentially argues that favorable DNA test results of all the requested items would merely show that other people were present in the time leading up to the murder, a fact already adduced at trial and therefore insufficient to raise a reasonable probability that a motion for a new trial based on this evidence would be granted.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeStefano in his thoughtful written opinion filed March 21, 2007.

Affirmed.