STATE OF NEW JERSEY v. JAMES BADGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1476-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent.

v.

JAMES BADGER,

Defendant-Appellant.

________________________________

June 21, 2011

Submitted: May 16, 2011 - Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 91-05-0528.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Badger appeals from an order denying his application for DNA testing of certain crime-scene evidence in the possession of the prosecutor. We affirm.

Defendant was convicted in 1992 of first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1), -3a(2); first-degree robbery, contrary to N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d); and first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3). The judge sentenced defendant on October 23, 2002, to thirty years without parole on the first-degree murder conviction and twenty years with a ten-year parole bar on the robbery conviction, consecutive to the murder sentence. Defendant's subsequent motion for a new trial was denied.

We remanded for an evidentiary hearing on the new-trial motion. State v. Badger, No. A-1572-92 (App. Div. June 29, 1994) (slip op. at 16) (Badger I). After that hearing, the trial judge denied defendant's motion for a new trial, and we affirmed. State v. Badger, No. A-2252-94 (App. Div. Jun. 11, 1996) (slip op. at 9) (Badger II), certif. denied, 146 N.J. 564 (1996). Defendant's 1996 petition for post-conviction relief (PCR) was denied, and we affirmed. State v. Badger, No. A-6030-97 (App. Div. June 12, 2000), certif. denied, 167 N.J. 86 (2001). Defendant then sought a writ of habeas corpus in the United States District Court for the District of New Jersey. The district court judge denied the application, and the United States Court of Appeals for the Third Circuit affirmed. Badger v. Hendricks, No. 05-4691 (3d Cir. Apr. 18, 2008). Thereafter, the Third Circuit denied defendant's petition for reconsideration or rehearing en banc, and the United States Supreme Court denied his petition for a writ of certiorari. Badger v. Ricci, ___ U.S. ___, 129 S. Ct. 902, 173 L. Ed. 2d 119 (2009). While that petition was pending, defendant filed a motion on June 18, 2008, to compel forensic DNA testing of certain evidence admitted during the course of the trial.

We need not recite the facts relevant to defendant's crime and conviction. They have been more than adequately explored in Badger I, supra, slip op. at 2-3, and Badger II, supra, slip op. at 3-7. Suffice it to say that for present purposes the evidence gathered at the scene included a screwdriver alleged to have been used to remove the window screen on the victim's home; the lining from the victim's living room couch; the victim's wallet; a cinder block allegedly used to gain entry to the victim's home; and the victim's fingernail clippings, which were subsequently mislaid by the State.

In support of his application, defendant averred that the only evidence linking him to the crime was the "suspect" testimony of his co-defendant Frank Johnson. Thus, he sought DNA testing to demonstrate that his DNA was not on any of the items seized from the crime scene. He pointed out that his co-defendant had recanted several times after he initially confessed to the murder and then implicated defendant at trial.

Judge Robert P. Becker wrote a thorough opinion denying the relief sought by defendant. The judge considered N.J.S.A. 2A:84A-32a governing motions to compel performance of DNA testing. He observed that the statute required defendant to (a) explain why his identity was a significant issue in the case; (b) explain how, if favorable results were obtained, a motion for a new trial would be granted; (c) explain whether DNA testing was done previously, whether defendant objected to providing a biological sample for DNA testing, and whether defendant objected to the admissibility of DNA testing evidence at trial; (d) identify the evidence that should be tested and the specific type of DNA testing sought; and (e) consent to provide a biological sample for DNA testing. N.J.S.A. 2A:84A-32a(a)(1).

The judge also recited the eight conditions that he must find in order to grant the motion as set forth in N.J.S.A. 2A:84-32a(d)(1) to (8). After carefully reviewing each of the eight statutory factors that must be found to permit DNA testing, the judge reached the following conclusion:

The defendant has not satisfied his statutory burden under [N.J.S.A. ]2A:84A [-]32a(d). The statute dictates that the defendant shoulder[] the burden of proof with respect to each subsection. The court concludes as follows:

(1) in arguing for forensic DNA testing of the screwdriver, the defendant has failed to satisfy his statutory burden with respect to [N.J.S.A. ]2A:84A[-]32a(d)(2), (d)(4), and (d)(5)[;]

(2) in arguing for forensic DNA testing of the victim's fingernail clippings, the defendant did not shoulder his burden with respect to [N.J.S.A. ]2A:84A[-]32a(d)(1), (d)(2), (d)(5); and

(3) in arguing for forensic DNA testing of the victim's clothing, the defendant did not shoulder his burden with respect to [N.J.S.A. ]2A:84A[-]32a(d)(5).

As a result, the defendant's motion to conduct forensic DNA testing is hereby denied.

This appeal followed.

Defendant raises the following issue for our consideration:

THE ORDER DENYING DEFENDANT'S MOTION TO COMPEL DNA TESTING SHOULD BE REVERSED.

Defendant urges that he satisfied all of the criteria of N.J.S.A. 2A:84A-32a and that the trial court should have granted his motion for DNA testing. We have considered each of defendant's contentions in this respect and, after carefully reviewing the record, 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 Becker in his written opinion dated April 13, 2009. The findings and conclusions of Judge Becker are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).