STATE OF NEW JERSEY v. RODNEY ROBERTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1186-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY ROBERTS,

Defendant-Appellant.

_______________________________________________________

March 8, 2013

 

Submitted October 30, 2012 - Decided

 

Before Judges Messano and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-07-1128.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Rodney Roberts appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. Before turning to the legal arguments raised, we set forth the procedural history in some detail.

Defendant was indicted by the Essex County grand jury and charged in Indictment No. 96-07-1128 with second-degree kidnapping of S.A., then seventeen years old, N.J.S.A. 2C:13-1b and c, and first-degree aggravated sexual assault of S.A., N.J.S.A. 2C:14-2. On July 16, 1996, pursuant to a plea agreement, defendant pled guilty to second-degree kidnapping, the balance of the complaint was to be dismissed. Defendant had earlier pled guilty to the amended charge of third-degree theft, N.J.S.A. 2C:20-3, contained in a second indictment. The transcript reveals the following colloquy after defendant was placed under oath:

DEFENSE ATTORNEY: . . . I call your attention to the 8th of May of this year in the city of Newark. At that time and place did you hold . . . an individual, age 17, with the initials S.A. against her will and prevent her from leaving with the intent to assault her?

 

A. Yes.

 

DEFENSE ATTORNEY: No further questions Your Honor.

 

THE COURT: Okay. That's more than sufficient factual basis.

 

Did you move her anywhere?

 

DEFENSE ATTORNEY: From one location to another.

 

THE COURT: One . . . location to another?

 

A. Yes. Yes.

 

THE COURT: Okay. That . . . satisfies the elements of kidnapping. We accept that factual basis.

 

On October 17, 1996, defendant was sentenced to a term of seven years' imprisonment, concurrent to the term imposed on a parole violation; the judge imposed a concurrent three-year term on the theft charge.

On January 12, 2001, defendant filed a pro se motion to withdraw his guilty pleas. The record discloses that this motion was motivated, in part, by the Parole Board's December 4, 2000, denial of parole. In its decision letter, the Board considered "the circumstances of [defendant's] . . . offense," specifically the reports that defendant "force[d] [S.A.] to a secluded area and . . . force[d] her to have sex . . . ." In his affidavit in support of the motion, defendant claimed that trial counsel "assured" him that the sexual assault charge, once dismissed, "could not be used to penalize defendant in any future proceedings." Apparently, before counsel was assigned, the judge denied the motion, finding "[t]here [was] absolutely no basis to support [defendant's] request," and advising defendant, instead, to address the issue to the Board, "[i]f [defendant] fe[lt] that the . . . Board improperly denied [his] request for parole."

In June 2004, having served his sentence, defendant was committed as a sexually violent predator pursuant to N.J.S.A. 30:4-27.31 and transferred to the Special Treatment Unit. On February 15, 2006, defendant filed a pro se petition for PCR, alleging in his certification that he advised trial counsel S.A. had misidentified him. According to defendant, trial counsel told him that the police reports indicated S.A. had "picked [his] photo out of a line-up," and knew him "from the neighborhood." Defendant also certified that his assigned attorney, John Douard, had contacted and interviewed S.A., who denied having ever identified defendant.1

Although the record is unclear as to the disposition of defendant's petition, on March 17, 2006, defendant again filed a pro se request to withdraw his guilty plea. An order was entered on April 3 assigning counsel, but, on April 17, 2006, before counsel submitted any papers, the trial judge denied defendant's motion, writing "[t]he identical motion was already denied by me on January 18, 2001." The judge also concluded that defendant's motion was time-barred pursuant to Rule 3:22-12. The record also contains an April 24, 2006, letter from the trial judge to defendant that simply states, "I stand by my ruling contained in my April 17, 2006 correspondence. Please proceed to file your appeal."

Defendant did. We reversed and remanded the matter to the trial judge "to permit counsel to make a presentation including why the PCR application should not be considered out-of-time or otherwise procedurally barred." State v. Roberts, No. A-4687-05 (App. Div. May 22, 2007) (Roberts I).

On remand, the record revealed that Douard and his defense investigator took a statement from S.A. dated September 27, 2005. S.A. stated that after the assault on May 8, 1996, a police officer brought a suspect to her hospital room and asked if she could "make a positive identification." S.A. told the officer she could not. S.A. also stated that, although she gave a statement to the police and was shown photos of individuals, she "could not identify any as [her] assailant."2 S.A. also stated that after the crime and her visit to the police station, "no one ever got in contact with [her] until . . . last year," when Douard and the investigator "showed up." On June 22, 2007, S.A. certified her statement to Douard was true.

In her statement to police in 1996, S.A. stated that her assailant ejaculated inside her during the assault. Sometime in 2005, defendant submitted buccal swabs for purposes of DNA analysis. In August 2005, the State Police analyzed defendant's DNA samples and the vaginal slides obtained from S.A. at the time of the assault. The analysis "excluded [defendant] as a possible contributor to the DNA profile" in the vaginal slides. The State Police could reach no conclusion regarding S.A. as a "possible contributor to the DNA profile obtained from the specimens without submission of her buccal swab control."

The State's response to defendant's PCR request included information regarding S.A.'s appearance at the prosecutor's office in September 2005. As the prosecutor explained during oral argument, S.A., who had given birth to a son then eight-years old, believed her child resulted from the sexual assault in 1996. The report from the prosecutor's investigator reveals only that S.A. submitted to buccal swabbing to obtain samples for DNA testing. There is no indication that S.A. was questioned about her prior identification of defendant.

After considering oral argument, the trial judge denied defendant's petition. In his written opinion of July 30, 2007, the judge first determined that defendant's request was time-barred pursuant to Rule 3:22-12. The judge, nonetheless, considered the merits of defendant's petition. We quote the judge's findings and conclusions:

An investigator from the Office of the Public Advocate took a written statement from the victim [S.A.] on 9/27/05, and a certification on 6/22/07. . . . No attempt was made by the investigator . . . to determine if [S.A.] could or could not identify [defendant] as the perpetrator of this offense. This alleged "recantation["] statement must be compared to the sworn statement provided by [S.A.] . . . at the time of the incident where she positively identifies the defendant as her assailant . . . . [S.A.] additionally claims that no one contacted her after she was allegedly unable to identify her assailant in her hospital room. This is, likewise, clearly false as two . . . weeks prior to the . . . "recantation" statement [S.A.] was in the . . . Prosecutor's Office providing a biological sample in this matter. At no time during the taking of this sample did [S.A.] indicate . . . that her identification of [defendant], or any police report was false in regards to this matter. The statement given by [S.A.] almost ten (10) years after the date of the incident is riddled with inconsistencies, and is inherently suspect and untrustworthy. The New Jersey State Police Office of Forensic Sciences DNA Laboratory Report determined that no conclusion could be reached concerning [S.A.] as a possible contributor to the DNA profile obtained from the specimens examined regarding this case.

 

The alleged recantation, and the DNA results are, thus, not legitimate grounds for granting the defendant the relief that he seeks.

 

The judge also rejected any claim that trial counsel provided ineffective assistance to defendant.

Defendant again appealed, and we again reversed. State v. Roberts, No. A-1659-07 (App. Div. July 17, 2009) (Roberts II). We initially concluded that the petition was not time-barred. Id. at 11. We stated that "[t]he trial judge's opinion set[] forth factors that he viewed as undercutting the credibility of [S.A.'s] 'recantation,'" but noted that in at least one respect, the trial judge misconstrued S.A's statement to the defense investigator. Id. at 14 n.1.3 We concluded that "such evaluations of credibility can[not] be made on the basis of competing certifications. An evidentiary hearing [wa]s necessary . . . ." Id. at 15.

Upon remand, the trial judge conducted an evidentiary hearing commencing on October 27, 2009. Defendant testified that on the day he pled guilty, his trial counsel visited him in the holding cell and advised that he (the attorney) had spoken to the victim who had "positively identified" defendant. Defendant had never spoken to trial counsel before. Defendant knew a woman from his neighborhood who had the same first name as S.A., but, defendant denied ever seeing S.A., who was in the courtroom, before. Defendant acknowledged lying during his plea allocution, but insisted he was relying on representations made by trial counsel.

S.A. testified that after the assault, a suspect was brought to her hospital bed. She did not recall making any identification and did not know if it was defendant. S.A. stated that she did not recognize defendant and had never seen him before. S.A. did not recall making any photographic identification. However, when directly asked if defendant was the man who assaulted her, S.A. said she was "not sure."

S.A. gave birth to a baby boy on February 15, 1997. She acknowledged having a sexual partner at the time she was assaulted and denied having any blood tests to determine the identity of the child's father. Subsequently, over defendant's objection, the judge ordered the prosecutor to obtain buccal swabs of defendant, S.A. and her son to determine whether defendant was the father of the child.

Detective Michelle Renee Bowin from the prosecutor's office testified that, in September 2005, she secured a DNA sample from S.A. utilizing buccal swabs. Bowin testified that the samples were taken at defendant's request.4 Bowin also stated that S.A. never indicated she was unsure of her identification of defendant or had given a statement to anyone regarding that identification.

Retired Newark police detective Derrick Eutsey testified that he investigated the 1996 assault and took S.A.'s statement. Eutsey described the photo array he conducted with S.A. and her positive identification of defendant's photo.

Defendant's trial counsel testified. In 1996, he was an assistant public defendant assigned to the "P.D.C. Court, Pre-trial Disposition Court." His office did not perform investigations of the cases at that point in the process, and he "operated off the information that the Prosecutor's Office had provided." Counsel had no independent recollection of defendant's case, but stated that he "advised most people if they felt they were innocent they should reject [the plea offered]." Counsel never would have told defendant that he already spoke to the victim.

The State Police analyzed the DNA samples taken from defendant, S.A. and her son, as ordered by the judge. A report dated December 30, 2009, concluded the child was not the offspring of S.A. and defendant. The report also indicated that S.A.'s DNA profile matched that of the vaginal samples taken in 1996.

The judge issued a written decision on May 19, 2010. He found S.A.'s written statement to Douard to be "riddled with inconsistencies, . . . inherently suspect and untrustworthy." He noted that S.A.'s statement claimed "no one contacted her after she was allegedly unable to identify her assailant." The judge continued, "[t]his is . . . clearly incorrect as two (2) weeks prior to the 9/27/05 'recantation' statement [S.A.] was in the . . . Prosecutor's Office providing a biological sample in this matter." The judge observed "[a]t no time . . . did [S.A.] indicate . . . that her identification of [defendant], or any police report was false . . . ." The judge found S.A.'s testimony at the hearing to be "rife with inconsistencies . . . ."

The judge also noted that the DNA tests ruling out defendant as the father of S.A.'s child were "not dispositive," since S.A. admitted having a sexual partner at the time. The judge did not address the earlier analysis that excluded defendant as a DNA contributor to the vaginal slides.

The judge found trial counsel to be "a credible witness." He noted that counsel "categorically denied telling [defendant] that he personally spoke to the victim who confirmed the identification of [defendant] as her attacker." The judge also concluded that defendant had failed to demonstrate trial counsel provided ineffective assistance.

The judge stated:

It is obvious to even the most casual observer that this application by [defendant] is a blatant attempt to withdraw a voluntarily entered plea, whose sentence has already been served, solely to enhance his efforts to have his status as a Sexually Violent Predator reconsidered based on the deletion of this conviction from his Criminal history.

 

In short, petitioner has failed to meet the heavy burden of proof that but for his counsel's performance, the result would have been any different.

 

The record is entirely barren of any proof of petitioner's allegations.

 

The judge entered an order denying defendant's petition, and this appeal ensued.

After filing the appeal, defendant moved to supplement the record with a certification from Douard, and we granted his motion. Douard stated that he and his investigator, Ronald Price (Price), first spoke to S.A. before December 17, 2004, after which he made a request to analyze the "rape kit" secured at the time of S.A.'s assault. Douard did not take a statement from S.A. at the first meeting, but, after the analysis of the rape kit "was inconclusive," Douard "typed a statement" that reflected his earlier conversation with S.A., and returned to have her modify and sign it in September 2005. S.A. crossed out a phrase, initialed the deletion, dictated additional information that was handwritten and signed the statement on September 27, 2005. Douard stated again that S.A. indicated no one had spoken to her between the end of the criminal investigation and December 2004, and he added S.A. claimed that "she did not even know anybody had been arrested for the crime."

Before us, defendant argues that the judge erred in denying his petition. Additionally, defendant contends PCR counsel provided ineffective assistance. In a pro se supplemental brief, defendant urges us to exercise original jurisdiction and reverse his conviction for kidnapping.

We have considered these arguments in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.

We consider defendant's claim that PCR counsel provided ineffective assistance. The Court has stated:

PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.

 

[State v. Webster, 187 N.J. 254, 257 (2006) (emphasis added).]

 

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).

Defendant contends that PCR counsel's performance was deficient in two critical respects. First, he argues that PCR counsel failed to call Douard or Price as witnesses. If he had, we assume they would have testified in accordance with the certification Douard submitted in support of defendant's motion to supplement the appellate record. Douard would have clarified that he first spoke to S.A. in late 2004, and her statements then were consistent with the signed statement she gave in September 2005. That statement indicated that S.A. never made an identification of defendant, either in the hospital after the attack, or later at the police station when she was shown photographs. This was, of course, consistent with S.A.'s testimony at the PCR evidentiary hearing.

Also critical was the timing of Douard's taking of S.A.'s statement. In denying defendant's PCR petition initially, the judge concluded that S.A. was mistaken when she said no one had contacted her between the investigation and her statement, dated September 27, 2005, because the prosecutor's office had contacted her and obtained her buccal swab. We took note of the judge's confusion over the timing in our first opinion. Roberts II, supra, slip op. 14 n.1.

Yet, the judge reiterated the same point in his second opinion that followed the evidentiary hearing, including almost identical language from his first opinion, and concluding, once again, that S.A.'s claim was false. Douard's testimony would have clarified that S.A.'s claim was, in fact, true. No one had contacted her before Douard did in December 2004, ten months before S.A. was summoned to the prosecutor's office to provide a buccal swab.

Additionally, the judge emphasized S.A.'s failure to provide the investigators with any information regarding a possible misidentification. However, Investigator Bowin never testified that S.A. was asked any questions about the investigation or identification. More importantly, in S.A.'s mind, she had never identified her assailant in the first place.

The reason why S.A. came to the prosecutor's office in the first instance is unclear. During oral argument at the initial PCR hearing, the prosecutor claimed S.A. came to the office because she was interested in ascertaining the paternity of her child. However, during the evidentiary hearing, the prosecutor asked Bowin if the sample was secured because the case was an "Innocence Project" case, which we assume referred to defendant's claim, asserted through Douard, that he was actually innocent of any sexual assault. Indeed, at the evidentiary hearing, the judge ordered buccal swabs to be taken from S.A., her son and defendant precisely to determine whether defendant had fathered the child. Subsequent DNA analysis revealed that defendant had not.

That brings us to defendant's second claim regarding PCR counsel's ineffective assistance. He argues that PCR counsel knew from the 2005 DNA analysis that defendant had been "excluded . . . as a possible contributor to the DNA [profile]" in the vaginal slides taken from S.A. during the investigation in 1996. Yet, the prosecutor argued in her brief that the results were inconclusive, a conclusion Douard reiterated in his certification before us.

However, the 2005 State Police DNA report was only inconclusive in one respect, i.e., whether S.A. was the source of the specimens on the vaginal slides. The 2005 report noted "[n]o conclusion can be reached concerning [S.A.] as a possible contributor to the DNA profile obtained . . . without submission of her buccal swab control." Notably, when the DNA samples were analyzed in 2009 to determine paternity, now with the benefit of S.A.'s buccal swab, the report indicates that "[t]he DNA profile of [S.A.] matches the DNA profiles obtained from" the vaginal slides.5

All these reports were available to PCR counsel before the April 2010 hearing that concluded the evidentiary remand. In his summation, however, PCR counsel nonetheless argued that the 2005 DNA results were "inconclusive." We fail to see why he took such a position since the 2005 report, on its face, excluded defendant's DNA from the vaginal specimens. As noted, in his written decision, the judge referenced only the later DNA paternity testing he had ordered, not the 2005 results.

At the least, the effective representation of defendant at the evidentiary hearing required PCR counsel to call a witness whose qualifications would have permitted any confusion, if it existed, to be put to rest. The failure to do so is inexplicable.

In this regard, we fully recognize the judge's ability to assess the credibility of the witnesses who testified, including defendant, S.A. and trial counsel. However, in light of the deficiencies noted, the meager allocution defendant made when pleading guilty and the possible expert testimony indicating defendant did not sexually assault S.A., we cannot defer to those findings.

Both S.A.'s statement and the 2005 DNA tests are newly discovered evidence that cast doubt on the integrity of defendant's conviction for kidnapping.

To meet the standard for a new trial based on newly discovered evidence, 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) (internal quotation marks and citation omitted).]

 

In our opinion, the new evidence in this case potentially satisfies all three prongs of the test. See ibid. (noting "all three prongs of that test must be satisfied before a defendant will gain the relief of a new trial"). Nevertheless, absent expert testimony as to the DNA reports, we refuse the invitation to exercise original jurisdiction in this case and vacate defendant's guilty plea.

As a result, we are compelled to reverse the order under review and remand the matter again for another evidentiary hearing. Defendant shall be assigned different PCR counsel. The trial judge has since retired, so the matter shall be assigned to a different judge to conduct the hearing.

Reversed and remanded. We do not retain jurisdiction.

 

1 Douard was representing defendant in the context of his appeal from the commitment order.

2 The police reports that are part of the appellate record indicate S.A. positively identified defendant's photo.

3 We quote our footnote at length:

The opinion also points to what the judge considered a contradiction in the statement. The victim's statement asserts she had not been contacted by anyone in years until the defense investigators contacted her. The trial judge found that statement to be inconsistent with the fact that the victim had been contacted a few weeks prior to the date of the statement by detectives seeking a DNA sample. In fact, the victim's statement says that the investigators had contacted her "last year," i.e. 2004, which was apparently prior to the contact by the detectives, who were clearly aware of the victim's address.

 

4 The prosecutor referred to the request as being part of "an Innocence Project case."

5 It is unclear from the record whether S.A.'s 2005 buccal swab was ever submitted for analysis. The 2005 DNA report was issued before that sample was taken in September 2005.