STATE OF NEW JERSEY v. MICHAEL LUPKOVICH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2912-08T42912-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LUPKOVICH,

Defendant-Appellant.

__________________________________________________

 

Submitted April 14, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 96-02-0281.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, we review an order denying defendant's motion for a new trial based on a claim of newly-discovered evidence. We affirm.

Defendant was charged with the first-degree knowing and purposeful murder of Jordan Zimmer and the first-degree knowing and purposeful capital murder of Lisa Palm, among other offenses revolving around the shooting deaths of Zimmer and Palm in the West End section of Long Branch on October 3, 1995. At the conclusion of a lengthy trial in 1997, over which Judge Paul F. Chaiet presided, defendant was convicted by a jury of the aggravated manslaughter of Zimmer, the capital murder of Palm, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Following appropriate mergers, Judge Chaiet sentenced defendant to: a thirty-year prison term, with a fifteen-year period of parole ineligibility, on the aggravated manslaughter conviction; a consecutive term of life imprisonment with a thirty-year period of parole ineligibility, on the murder conviction; and a consecutive five-year prison term, with a two-and-one-half-year period of parole ineligibility, on the unlawful possession of a weapon conviction.

Defendant filed an appeal. While the appeal was pending, we remanded to permit consideration of whether defendant should be entitled to a new trial based on his claim that the State withheld exculpatory evidence. After that motion was denied, we rejected all the arguments raised on appeal and affirmed by way of an unpublished opinion. State v. Lupkovich, No. A-0750-97T4 (App. Div. Dec. 18, 2000). The Supreme Court denied certification. 167 N.J. 637 (2001).

In 2002, defendant filed a petition for post-conviction relief. Judge Chaiet denied that petition and we affirmed. State v. Lupkovich, No. A-2906-02T4 (App. Div. May 3, 2004). The Supreme Court denied certification. 181 N.J. 544 (2004).

Defendant filed a petition for habeas corpus in the United States District Court for the District of New Jersey that was denied on November 19, 2006. The United States Court of Appeals for the Third Circuit denied defendant's application for a certificate of appealability on July 24, 2007.

On December 20, 2007, defendant filed a motion for a new trial based on newly-discovered evidence pursuant to Rule 3:20-2. Judge Chaiet denied the motion, and defendant filed this appeal, presenting a single argument for our consideration:

DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE SHOULD HAVE BEEN GRANTED.

We affirm substantially for the reasons set forth by Judge Chaiet in his oral decision of October 10, 2008. We add only the following brief comments.

In moving for a new trial, defendant asserted that an agent of the Federal Bureau of Investigation testified at trial that lead fragments taken from the bodies of the victims were comparable to the same batch of lead used to manufacture the bullets discarded by defendant soon after the crimes. Because this composition on bullet lead analysis (CBLA) theory has since been discredited, defendant claimed entitlement to a new trial.

In closely examining the record, we conclude that Judge Chaiet correctly applied the principles contained in State v. Carter, 85 N.J. 300 (1981), which are applicable to such motions. In his oral decision, the judge found that the CBLA theory presented by the State in this case was later discredited, thereby satisfying Carter's second prong. However, the judge also determined that in light of the overwhelming evidence of guilt, the first and third Carter prongs had not been met. In short, the judge held that "the elimination of the [discredited] testimony in its entirety would not have altered the verdict in this particular case." The evidence adduced at trial fully supports the judge's well-reasoned conclusions.

Affirmed.

 

In Carter, the Court held that "to qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." Id. at 314.

In this regard, the judge referred to, among other things, the eyewitness testimony that defendant shot Zimmer and Palm, and the testimony of six witnesses who recounted their interactions with defendant, on October 4 and 5, 1995, that defendant confessed to killing two people at the same location in Long Branch on October 3, 1995.

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A-2912-08T4

April 23, 2010