STATE OF NEW JERSEY v. ERIC KELLEY

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1266-17T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

ERIC KELLEY and RALPH LEE,

Defendants-Respondents.
_________________________________

Argued February 12, 2018 – Decided March 12, 2018

Before Judges Sabatino, Ostrer and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
93-10-1183.

Robert J. Wisse, Assistant Prosecutor, argued
the cause for appellant (Camelia M. Valdes,
Passaic County Prosecutor, attorney; Robert J.
Wisse, of counsel and on the briefs).

Vanessa C. Potkin argued the cause for
respondent Eric Kelley (The Innocence Project,
attorneys; Vanessa C. Potkin, on the briefs).

Paul Casteleiro, Legal Director, argued the
cause for respondent Ralph Lee (Centurion
Ministries, Inc., attorneys; Paul Casteleiro,
on the briefs).

PER CURIAM
This criminal matter arises out of the 1993 robbery and

killing of a store clerk. After separate jury trials in 1996,

defendants Eric Kelley and Ralph Lee were each found guilty of

felony murder and other offenses arising out of the fatal attack.

One of the key items of evidence moved into evidence and

discussed by the State's witnesses at both trials was a baseball

cap found at the crime scene. One witness claimed to have seen

defendant Lee wearing the cap at the store, although defendant

Kelley told the police that he himself owned the cap and that he

had been wearing it there. Using technology available at the

time, DNA testing excluded Kelley as a contributor to the DNA

found on the cap but found Lee could have been a contributor.

Defendants' convictions and sentences were upheld on direct

appeal, and their attempts to gain collateral relief in post-

conviction petitions through 2010 were unsuccessful.

In 2010, upon a motion by defendants, the trial court ordered

DNA testing on the cap be performed again, using improved

technology that had developed since 1996. The results of the

retesting ruled out both defendants as contributors. The new

testing instead matched the DNA on the cap to a third party from

the same area, who had been previously convicted of a knife-point

robbery and who had been released from prison only three months

before the 1993 incident.

2 A-1266-17T3
Based on the new DNA results, both defendants moved for a new

trial. Following nine days of evidentiary hearings, the trial

court granted defendants' motions. Both men were subsequently

released from prison on bail.

On leave granted, the State appeals the new trial order. The

State argues that the trial court abused its discretion in granting

defendants' motions. Fundamentally, the State asserts there was

ample other evidence at defendants' trials, including their

confessions, to support their guilt, and that any error in

admitting evidence of the cap at those trials was harmless.

For the reasons that follow, we affirm the order granting

defendants' new trials. We agree with the court that the new DNA

results provide substantial proof of third-party guilt, thereby

justifying new trials at which such exculpatory proof can now be

presented by defendants.

Because the proofs presented at defendants' successive trials

varied in some respects, we discuss them separately. Although our

discussion is not comprehensive, we present the facts in

considerable depth, in light of the State's "harmless error"

claims.

3 A-1266-17T3
A.

Facts Developed at Kelley's Trial

On the morning of July 28, 1993, twenty-two-year-old Tito

Dante Marino ("Tito" or "the victim")1 was working as a clerk at

Victoria's Video, a video rental store on Union Avenue in Paterson.

The store, which also sold VCRs, cameras, car radios, speakers,

and video accessories, was owned by Miguel Victoria, Tito's uncle.

Victoria was also working at the store that day. The store had a

front area open to the public, plus several rooms in the back used

for storage and other purposes.

Sometime around noon on July 28, Victoria left to run some

errands, leaving Tito alone in the store. Shortly before 1:00

p.m., Victoria's sister, Guillermina Marin, who owned a travel

agency next door, walked by the video store. She saw Tito standing

on a yellow chair (also described in the record as a stool) working

on the store's air conditioner.

At approximately 1:45 p.m., Marin, who was back at work next

door, was summoned to the video store. She discovered Tito lying

face-down surrounded by blood on the floor of a narrow storage

area in one of the back rooms. Victoria and others rushed to the

store. The store was in disarray, with videotapes scattered on

1
We refer to the victim at times by his first name to distinguish
him from his family members. We intend no disrespect in doing so.

4 A-1266-17T3
the floor and the cash register open. Although the family called

for help, Tito died before he could be taken to the hospital by

emergency personnel.

Following an autopsy on July 29, the medical examiner, Dr.

Rudolf Platt, determined that Tito had sustained six stab wounds:

five to the upper body, including one that penetrated his heart,

and others that perforated major organs. Dr. Platt also noted

potentially-lethal blunt force trauma to the right side of Tito's

forehead and the top of his head. The two blows to Tito's forehead

and the three blows to the top of his head caused not simple cuts,

but lacerations.

Dr. Platt also found abrasions on Tito's forehead, shoulders,

and elbow. He suggested these could have been caused by the

assailants pulling Tito from place to place. There were also

superficial cuts and abrasions on Tito's hands and legs, which Dr.

Platt thought were likely defensive wounds.

Dr. Platt concluded that Tito died from multiple stab wounds

to his chest and abdomen, plus multiple blunt force trauma to the

head. He was "partially" persuaded that Tito was stabbed before

he was struck in the head. Dr. Platt thought so because there was

much less bleeding from Tito's head, his hair was not matted with

blood, and a stab wound to the heart would cause blood to

immediately start draining from the body. Dr. Platt did not offer

5 A-1266-17T3
an opinion as to why only a limited amount of blood was found

behind the counter and down the hallway leading to the back rooms

of the video store.

During its investigation, police determined that $150 in

cash, a VCR, three car radios, and five watches were missing from

the store. An overturned yellow stool with blood on it was

discovered in one of the back rooms. A green plaid hat and a

bloody facial tissue also were recovered from the scene.

Detective Richard Reyes, an officer who then had eight months

of experience in the Detective Bureau of the Paterson Police

Department, served as the lead detective on the case. On July 29,

Reyes spoke with Carmen Paredes, a customer who had stopped by the

video store at approximately 1:20 p.m. on July 28. Paredes related

that, upon entering, she nearly bumped into a black man and glanced

up at his face. She recalled the man was between twenty-five and

thirty years of age; taller than her height of five feet, five

inches; and wearing a green sweater, jeans, and a green cap

backwards on his head. Paredes confirmed that the green plaid cap

found in the store was the one she had seen worn by the man. She

looked through a large book of photos, but was unable at that time

to identify the man she had seen.

The police also spoke with another customer, Majdi Mousa, who

had stopped by the store to return a video at approximately 1:30

6 A-1266-17T3
p.m. on July 28. Mousa recalled that, upon his arrival at the

store, there was no one in the front room. Then, a person Mousa

described as a roughly six-foot tall black male in his mid-twenties

came out from the back area of the store. The man told Mousa to

put his video on the counter and leave. Mousa observed that the

man was not wearing a cap; had blood dripping from his ear; had

blood and scratches on his right arm; and was mumbling and "acting

nervous." Mousa saw no blood on the floor. Although Mousa viewed

photos at the police station on July 28, he likewise was unable

to identify the man he had seen in the store.

On July 30, Detective Reyes and several other detectives went

to a nearby apartment building at the intersection of Union Avenue

and Jasper Street, where they found defendant Ralph Lee, a young

black man. Lee agreed to accompany the officers to the police

station to answer some questions about an "incident" that had

occurred.

While waiting outside of the apartment building, Reyes

observed an approaching black man who he thought "fitted the

description." The man hesitated and crossed the street upon

noticing the police presence. Reyes and another officer stopped

the man, told him they were investigating a crime, and asked him

to come down to the police station. The man identified himself

7 A-1266-17T3
as defendant Eric Kelley (also known to others as E.K.). He stated

that he lived nearby, and agreed to go with the officers.

Kelley and Lee were transported to the police station in

separate cars. Thereafter, they were each interviewed in separate

rooms.

Reyes and another police detective, Michael Finer, first

questioned Kelley. Kelley's prior record consisted of one juvenile

conviction for assault, four non-violent municipal court

convictions, and one out-of-state conviction for possession of

cocaine with intent to distribute.

Kelley initially was untruthful to the officers about his

whereabouts at the time of the murder. When the officers attempted

to corroborate his story by calling his mother, he became

depressed. Kelley then admitted that he was not telling the truth.

Reyes thereupon placed Kelley under arrest.

After waiving his Miranda2 rights, Kelley gave a statement

that was neither recorded nor videotaped3 but was typed up by

Reyes. In that written statement, Kelley initially stated that

he was twenty-eight years old, had graduated from high school, and

2
Miranda v. Arizona,
384 U.S. 436 (1966).
3
At the time of defendants' interrogations in 1993, our State did
not yet have policies requiring such interrogations in homicide
cases to be recorded.

8 A-1266-17T3
was not under the influence of either drugs or alcohol. He related

that at approximately 1:30 p.m. on July 28, he was with Lee and

David Hancock (a white man) and they decided to rob Victoria's

Video on Union Avenue. Kelley described in his written statement

what thereafter occurred as follows:

I entered the video store and [Lee] came in
behind me, while [Hancock] stayed outside as
the look out. The guy [i.e., the victim] was
behind the counter and I had the knife out
already, so I went to him and stabbed him.
[Lee] came behind me and when the guy grabbed
me [Lee] started to beat him on the head. The
guy wasn't fighting and when he went down we
picked him up and put him in the back room.
I had blood on my hands and I put the knife
in my pocket. Me and [Lee] started to take
the radios from the counter and we put it in
a bag. We then left the store, to go sell the
VCR and the car radio[s].

Kelley later clarified that Hancock did not help him and Lee

deposit the body in the back room. He stated the three men stole

"$150" from the cash register, some tapes, several car radios, and

a VCR. Kelley further stated the victim, whom he did not know,

was Hispanic and "about twenty-two years old."

According to Kelley's statement, he and Hancock sold the

watches and tapes to "Bob," the owner of nearby Bob's Supermarket.

Bob bought everything except the VCR, which Kelley said had "blood

all over it." Kelley cleaned the VCR, and the robbers sold it to

the owner of a nearby bodega. Kelley stated that they used the

9 A-1266-17T3
money they received in exchange for the stolen goods to buy four

bags of drugs. The pair then met up with Lee "at his place" and

"sniffed the dope."

According to Kelley, neither he nor the other two participants

were injured in the robbery. Kelley told police he did not see

any customers enter the video store during the incident. He

claimed that he got the victim's blood on his hands and clothes.

Kelley gave police permission to retrieve these clothes from a

hamper at his home.

Of particular note for the present appeal, Kelley told police

that he was wearing a green and purple plaid cap at the time of

the robbery. Kelley further claimed the plaid cap police found

at the store was his.

According to Detectives Reyes and Finer, Kelley also told

them that he discarded the knife used to stab the victim, a folding

knife with a black handle, in an alleyway. Police officers

thereafter searched for both the stolen items and the knife,

without success. The supermarket owner (Bob) and various bodega

owners denied purchasing the stolen goods. Police did not recover

Kelley's clothes, which Kelley's mother claimed to have washed.

The same day they arrested defendants, the police located and

arrested Hancock and brought him down to the station. Detectives

Finer and Hancock sat down at Finer's desk, which was about twelve

10 A-1266-17T3
feet away from where Detective Reyes happened to be sitting with

Kelley. After Kelley identified Hancock for Reyes, Reyes heard

Hancock say something to Kelley. According to Reyes's testimony,

Kelley waved his hand and responded, "Man, just give it up."

On July 31, Mousa returned to the police station and was

shown two photo arrays, one which included Kelley and another

which included Lee. Again, Mousa was unable to identify from the

photos the man he had seen in the video store.

On August 4, Paredes was shown by Reyes two photo arrays, one

which included Kelley and another which included Lee. This time,

Paredes identified Lee as the man she had seen in the video store

wearing the green cap.

Victoria told police that he knew Hancock, who would sometimes

come in to rent videos. Victoria also told police he knew Lee,

who lived with his father a block from the store. Victoria claimed

he had seen both Hancock and Lee outside the video store on July

27.

DNA and Other Forensic Testing

Testing of the trace amounts of DNA on three cuttings from

the inside lining of the cap revealed before Kelley's 1996 trial

that: (1) Kelley was excluded as a contributor to the DNA on the

cap; (2) Lee was excluded as a contributor to the DNA on the cap

if the DNA was from only one person; and (3) Lee was not excluded

11 A-1266-17T3
as a contributor to the DNA on the cap if the DNA was from two or

more people.

The DNA analyst, FBI agent Harold A. Deadman, testified that,

although possible, he would not expect "someone putting a hat on

[and] taking it off, to transfer much of any DNA." Agent Deadman

further stated that it was not possible to determine when DNA was

transferred to, or how long it had been on, a particular object.

Other forensic testing done at the time revealed that there

was blood from an unknown human source on the facial tissue

recovered at the scene. There was blood, but no skin, on the

fingernail clippings from the victim. Latent fingerprints found

at the scene did not match either defendant.

Dennis Williams's Observations of Defendants Before and After
the Robbery

On August 11, 1993, police spoke with Dennis Williams, another

fact witness. Williams stated that, at approximately 1:15 p.m.

on July 28, he and William Hanley picked up some free food at St.

Mary's Church on Union Avenue, one block away from Victoria's

Video. When they came out of the church, they spoke briefly with

Kelley, Lee, and Lee's sister Lynn, who were also interested in

getting some food. Williams then went off alone and tried

unsuccessfully to sell some of the food at Bob's Supermarket.

12 A-1266-17T3
When Williams rejoined Hanley at approximately 1:50 p.m.,

Hanley was trying to fix a broken-down van at a Union Avenue

intersection four blocks from Victoria's Video. Williams noticed

Kelley and Hancock were standing across the street. A few minutes

later, Lee, who appeared to be coming from Lynn's house near the

intersection, joined Williams and started teasing Hanley. Lee

then walked back and forth several times between Lynn's house and

the van.

According to Williams, at one point, Kelley and Hancock came

over. While the men were "all goofing around the van," they

noticed a number of police cars heading towards Victoria's Video

with their sirens blaring. They asked some people what was going

on, and were told "someone got shot . . . ."

Williams recalled that Kelley then said, initially to Hanley,

and then to both Williams and Hanley, "Why you do that man

for? . . . Why you do that? . . . Why we kill that man? Why we

kill that man before for diesel (i.e., drugs)?" Later in his

testimony, Williams alternately recalled Kelley's words as: "Why

we do that man? Why you all do that? . . . Why you did that? Why

did we do that? Why did we kill that man over a bag of dope? We

shouldn't have shot the man over a bag of dope."

According to Williams, Kelley followed up these comments by

stating, "So what, I married an ax murderer." Williams asked

13 A-1266-17T3
Hanley what was wrong with Kelley. Hanley replied that Kelley "is

bugging like that sometimes." Shortly thereafter, the group broke

up, and Williams, Kelley and Hanley walked down to Victoria's

Video and learned that someone had been stabbed. Williams did not

see any blood or scratches on Kelley. Nor did Williams see Kelley

holding any electrical equipment.

Defense Proofs at Kelley's Trial

Kelley declined to testify at his trial. He did present the

testimony of Hanley, who related that between 12:30 and 1:00 p.m.

on July 29, he and Williams had stopped at St. Mary's Church and

got on line to pick up a free food package. According to Hanley,

when they came out of the church at about 1:10 or 1:15, they ran

into Kelley, Lee and Lynn, and Lee's father, who lived next door

to the church. Hanley and Williams then tried unsuccessfully to

sell the food at Bob's Supermarket.

According to Hanley, on their way home, at about 1:30 p.m.,

the group saw a man with a disabled van and Hanley offered his

help. While Hanley was working on the van, he saw Kelley across

the street talking to Williams and then Hancock. Lee showed up a

few minutes later. Hancock and Lee then left the scene. At about

2:15 or 2:20 p.m., when Hanley was finished with the van, he saw

the police cars heading towards the video store.

14 A-1266-17T3
Williams, Kelley, and Hanley then walked down to see what was

going on. While Kelley and Williams joined the crowd in front of

the video store, Hanley spoke with a nearby shop owner, who told

him that someone was shot or had his "neck cut." Hanley did not

notice any blood on Kelley's clothes or body, or that Kelley had

been injured.

The Summations4

In his summation, Kelley's trial counsel raised several

factual questions bearing upon reasonable doubt. He argued that

in light of Paredes's identification of Lee, the man seen by Mousa

was not Kelley, but Lee. Counsel emphasized that Paredes had

stated Lee was wearing the cap, and, moreover, Lee's DNA was

potentially found on the cap. Counsel questioned why, as had been

claimed by Williams and Hanley, Kelley would have returned to the

video store where he allegedly had just "carved up" the victim.

Counsel also wondered why no one saw blood on Kelley, despite the

gory scene at the store.

Apart from these factual points, Kelley's attorney argued

that Detective Reyes, with his limited experience, should not have

been heading this allegedly "botched" investigation. He suggested

4
We describe the summations in detail because what counsel
stressed to the jurors bears to some extent upon the State's
harmless error claim.

15 A-1266-17T3
that, if the police had done further testing, some of the blood

at the scene might have belonged to the man seen by Mousa. Counsel

noted the blood on the stool had not been tested to see to whom

it belonged.

Kelley's counsel challenged the State's contention that

Kelley had immediately confessed to police after they threatened

to call his mother. He claimed that Reyes "fed" information in

the typed confession to Kelley. In this regard, counsel argued

it was unlikely that Kelley knew the victim was exactly twenty-

two years old, and that exactly $150 had been taken from the

store's cash register. Counsel further asserted that police were

aware of all of the information in the confession before they

questioned Kelley.

In his own summation, the prosecutor argued that the State

had amply proved Kelley's guilt by direct and circumstantial

evidence. The prosecutor insisted that two killers and one lookout

were needed to accomplish these crimes. He emphasized that Paredes

saw Lee shortly thereafter at 1:20 p.m. or 1:25 p.m., and that

Mousa saw a person who was presumably Lee at 1:30 p.m. with the

victim's blood on his head. The prosecutor maintained that it was

feasible for the men to have committed the murder, sold the items,

purchased drugs, gotten high, and been back out on the streets,

all in about twenty-five minutes.

16 A-1266-17T3
The prosecutor theorized that Kelley's conscience had

prompted his confession, which was replete with details. The

prosecutor argued it was inconceivable that the police had framed

Kelley. He emphasized that the officers would have had to have

been morally depraved to do so, and that there would have been no

need for them to have followed up on the information in Kelley's

statement. The prosecutor pointed out that police had not then

known that Lee and Kelley were seen near St. Mary's Church at 1:15

p.m., or that the three also had been seen in the area shortly

before 2:00 p.m., as later confirmed by Williams and Hanley. The

prosecutor further noted that Parades ultimately had independently

and crucially identified Lee. He asserted the police "made

efforts" with the cap, but could not really "draw any conclusions"

from the DNA results. He also emphasized Kelley's self-

incriminating statements made after the robbery, as reported by

Williams.

Facts Developed at Lee's Trial

At Lee's trial several months later, the prosecutor called

twelve of the same witnesses who had testified for the State at

Kelley's trial. Their testimony was largely the same as to the

circumstances of the homicide; the victim's cause of death; the

police response; the various witness identifications; the DNA

17 A-1266-17T3
evidence; the blood found on the victim's fingernail clippings;

the failure to identify latent fingerprints found at the scene;

defendants' conduct after the homicide; defendants' eventual

arrest; Kelley's statement to Hancock at the police station; and

Kelley's confession, which was also admitted into evidence at

Lee's trial.

An additional witness for the State, Detective Louis Stell,

testified at Lee's trial that he spoke with two other officers on

July 30. Stell testified that, as a result of that conversation,

he joined other officers at a certain apartment building at the

intersection of Union Avenue and Jasper Street.

On July 29, 1993, the police received a phone call from a

Paterson resident, Alice Nieves. Nieves reported that she was at

a laundromat on Union Avenue when she had overheard three young

black women talking about the homicide. According to Nieves, the

women said that the victim had been killed by two black men and a

white man. Nieves did not know these women, but believed that

they lived in a certain nearby apartment building at the corner

of Union Avenue and Jasper Street. Police tried without success

to locate the women.

On July 30, the police received a tip from a confidential

source, who had stated that two black men and a white man had been

in front of Victoria's Video on July 28 around the time of the

18 A-1266-17T3
homicide, and that two of the men, one known as "K.C.," and the

other who was the son of Mr. Lee, could be found on the second

floor of the apartment building at the corner of Union Avenue and

Jasper Street.

According to Detective Stell, he went up to the second floor

of the building and came upon Lee, who agreed to come down to the

station. As Stell recalled it, Lee initially denied any knowledge

of the murder. Stell was about to let him leave when Detective

Reyes called him out and informed him that Kelley had confessed

and implicated Lee.

The officers then arrested Lee and read him his Miranda

rights. According to Stell, the officers thereafter started giving

Lee "little bits of information" obtained from Kelley, admittedly

to convince Lee that the authorities did, in fact, know of his

involvement in the homicide. After some further discussion with

the officers, Lee provided a confession similar to Kelley's, which

was neither recorded nor videotaped but typed.

Lee's Confession

In his own confession, Lee stated that he was thirty years

old, completed two years of college, and was not under the

influence of either drugs or alcohol. Lee had no prior criminal

record.

19 A-1266-17T3
Lee told the officers that, on July 28, both he and Hancock

agreed to participate in Kelley's plan to rob the video store. In

his written statement, Lee described what occurred at the store

as follows:

Me and [Kelley] went into the store, and
[Hancock] stood outside as the look-out. I
then stayed by the door and [Kelley] walked
up to the counter. [Kelley] had a few words
with the guy [i.e., the victim] behind the
counter, then [Kelley] stabbed the guy over
the counter. Then he walked over to the other
side of the counter and kept stabbing the guy,
that's when I ran to help [Kelley]. The guy
was still moving and I hit him on the head
with a car radio that was on top of the
counter. I hit him on the head about three
times because he was still trying to get up.
He then tried to get up again, and fell hitting
his head on a chair. I moved the chair to the
back of the store because it had blood on it.
Then me and [Kelley] picked up the body and
carried it to the back room [leaving it face-
down].

Lee later clarified that Kelley had initially stabbed the victim

two times "from over the counter." He confirmed that the "chair"

the victim hit his head upon was more precisely the bloody yellow

stool found at the store.

According to Lee, after depositing the victim's body, Hancock

came in and helped Kelley take some radios and a VCR. Meanwhile,

Lee grabbed a "rag" that was in the store and attempted to wipe

blood off the floor behind the counter. Kelley and Hancock then

20 A-1266-17T3
departed, leaving Lee alone in the store, allegedly searching for

anything else to take.

Lee claimed that, while he was in the store alone, a woman,

whom he described as "a dark skin Spanish lady about forty years

old medium buil[d] about 5'4"" came in asking for the owner. Lee

said he told her that "no one was here right now." Thereafter, a

man, whom Lee described as "Spanish about 18 or 20 years old slim

build about 5'7"," also walked into the store with a videotape to

return. Lee told the man to leave the videotape on the counter.

Lee then left the store. While heading to Lynn's nearby

apartment, he caught up with Kelley and Hancock, who said that

they were going to go sell the stolen items. About an hour later,

Lee again met up with Kelley and Hancock, who had four bags of

heroin. The three men went to Hancock's house to get high.

According to Lee, Kelley and Hancock had not been able to sell all

the stolen goods. They left some of the items "in the alle[y]way

of the liquor store across the street from [Lee's] sister[']s

house."

Lee told police that on the day of the robbery Kelley was

wearing a white short-sleeved shirt, while he was wearing brown

pants and a beige, green, and blue-striped shirt. Lee did not

recall getting any blood on his clothes and said that his clothes

were at his father's house.

21 A-1266-17T3
Additional Testimony

Detective Reyes testified that, after Kelley had identified

Hancock in the police station, Hancock said to Kelley, "I told you

not to say anything." This is when Kelley allegedly responded by

waving his hand and saying, "man, just give it up."

Reyes further stated that the officers who went looking for

Kelley's clothes never found them, even without blood, and that

Kelley's mother said she had washed the clothes in the hamper.

Reyes stated that he interviewed another man, James Thompson,

the day after the homicide. Thompson had been in Victoria's Video

on July 28. He told police he saw a black man behind the counter,

whom he had never seen before. Thompson looked at police photos,

but was unable to make an identification. Reyes did not take a

statement from him.

Two days later, on July 31, Thompson returned to the station

at Reyes's request and looked at the two photo arrays containing

the defendants' photos. Thompson was again unable to identify the

person he had seen.

Paredes once again testified for the State at Lee's trial.

Notably, during her cross-examination, Paredes claimed that when

she returned to the police station a second time on August 4 to

look at photos, Detective Reyes told her that a suspect from the

robbery had been arrested.

22 A-1266-17T3
DNA Proof at Lee's Trial

The DNA analyst, Deadman, testified at Lee's trial and related

the DNA results. Again, Deadman explained there were many

variables as to why one person's DNA and not another's might show

up on a cap, such as: (1) the length of time the cap was on the

person's head; (2) the activity the person was involved in; (3)

whether the person was perspiring; and (4) how frequently the

person washed their hair.

Joselito Versoza, a forensic scientist, also testified for

the State. She discovered blood, but no skin, on the victim's

fingernail clippings. Versoza theorized that the absence of skin

on the clippings could indicate the lack of a struggle.

As he had at Kelley's trial, the medical examiner, Dr. Platt,

opined that he was reasonably certain that the victim had been

stabbed first and then struck in the head. Dr. Platt explained

that, although the lacerations were very significant, the victim's

hair was not matted with blood. Dr. Platt believed the victim had

already bled considerably from the stab wounds such that blood was

no longer being pumped effectively to his head.

Lee's Testimony

Lee took the stand in his defense, and denied he had killed

the victim. Lee claimed that he confessed to police because he

had been threatened by someone the morning after the murder, and

23 A-1266-17T3
that he was afraid of this person and fearful for his life and the

lives of his family members. Lee claimed that he had been

handcuffed before he was taken to the police station and that the

police beat him up at the station.

According to Lee, the police told him the details of the

crime, and he merely agreed with what they said. However, at the

end of his cross-examination, Lee acknowledged that he volunteered

to police that he saw Kelley stab the victim twice over the

counter. On redirect, though, he insisted that nothing in his

confession about the crime was true.

Lee testified that he was regularly in the area of Victoria's

Video, because he lived there. He stated that, shortly after 1:00

p.m. on July 28, he tried to get free food at St. Mary's Church

and then went to Lynn's house to watch a soap opera and have lunch.

At approximately 1:50 p.m., he left Lynn's house and spoke with

Hanley, who was attempting to repair a van.

Lee acknowledged that, in the summer of 1993, both he and

Kelley abused heroin. He stated that Kelley had a plate in his

head, was "kind of off" and that "[h]is head [wa]s not straight."

Lee noted that Kelley had been in an accident and afterwards Kelley

was so changed that "anybody can influence him to say anything."

24 A-1266-17T3
Other Defense Witnesses and Proofs at Lee's Trial

Several other witnesses testified on Lee's behalf. Reverend

Henry Speidell, Lee's sister Lynn, Hanley, and Ralph Lee, Sr., all

testified about Lee's activities on July 28 regarding the food

distributed at St. Mary's Church and the broken-down van. In

particular, Lynn claimed that Lee had been with her at her house

from 9:00 or 10:00 a.m. until 1:55 p.m. on July 28. Lynn admitted,

though, that she did not inform the police of this at the time of

the murder.

Hanley maintained that neither Lee nor Kelley was acting

strangely while Hanley was working on the van, and that Lee did

not have any blood on him and was not carrying any watches. Hanley

recalled that Kelley was wearing a baseball cap. He also remarked

that Kelley "always acted strange . . . ."

Summations at Lee's Trial

In his closing argument, Lee's trial counsel attempted to

undermine the State's proofs in many respects. He stressed that

the descriptions given by Paredes and Mousa of the man they

allegedly saw were inconsistent. He also noted that, contrary to

Lee's confession, Paredes never mentioned speaking to a black man

in the store. Counsel suggested that Paredes's identification

could have been the result of her seeing Lee on another occasion.

25 A-1266-17T3
Lee's counsel argued that Lee's confession had been

constructed by the police and that it was a "patchwork" of

information with inexplicable omissions and errors. He noted that

Detective Stell had admitted that he "fed" information to Lee.

Moreover, the police allegedly had instilled fear in Lee.

Lee's counsel questioned how the murder and its sequelae

could have happened in only twenty minutes. He noted how Kelley

had not been seen with a bloody shirt during the twelve-block walk

to his home. Counsel urged that the DNA evidence linking Lee to

the cap did not necessarily mean that Lee had been involved.

Finally, counsel stressed that Lee had no prior criminal record

or history of violence.

During his own closing argument, the prosecutor 5 insisted

that the police had competently investigated the case, and that

Lee's guilt had been clearly proven. The prosecutor emphasized

that Williams and Hanley were able to place Lee near the video

store only minutes before the murder, and again in the area about

twenty minutes after the murder. He emphasized that Paredes had

identified Lee. He argued that there could have been a second

"Spanish" woman who came into the video store, with whom Lee

allegedly spoke.

5
The same prosecutor had appeared earlier for the State at
Kelley's trial.

26 A-1266-17T3
The prosecutor argued that Lee had confessed truthfully

because of his guilty conscience. He submitted that the

confessions of Lee and Kelley were not inconsistent on the main

points. As he had at the Kelley trial, the prosecutor maintained

the police would have had to have had "moral depravity" to frame

Lee. He also questioned why the police would have continued with

the investigation if they were "framing" Lee.

II.

In February 1996, the jury at Kelley's trial found him guilty

of felony murder, conspiracy, robbery, and two weapons offenses.

The trial court sentenced Kelley to life in prison, with a thirty-

year parole disqualifier. This court affirmed his conviction in

an unpublished opinion. State v. Kelley, No. A-6192-95 (App. Div.

June 5, 1998). The Supreme Court denied certification.
157 N.J.
545 (1998). Subsequent collateral applications by Kelley in both

the state and federal courts were unsuccessful.

In April 1996, a separate jury convicted defendant Lee of

murder, felony murder, robbery, conspiracy, and two weapons

offenses. The trial court6 sentenced Lee to life in prison, with

a thirty-year parole disqualifier, on the murder charge, plus a

6
The same judge presided over both trials and sentenced both
defendants.

27 A-1266-17T3
consecutive sentence of twenty years with a ten-year parole

disqualifier on the robbery charge. This court affirmed Lee's

conviction in an unpublished opinion. State v. Lee, No. A-5752-

96 (App. Div. June 22, 1999). The Supreme Court denied

certification.
162 N.J. 487 (1999). Collateral applications by

Lee in both the state and federal courts were likewise

unsuccessful.7

III.

After a motion by defendants pursuant to
N.J.S.A. 2A:84A-32a,

the trial court ordered that certain evidence from the 1996 trials

be retested for the presence of DNA, using updated technologies.

After receiving the results of this retesting, which implicated a

third party, both defendants moved for new trials based on newly-

discovered evidence.

The trial court presided over a nine-day evidentiary hearing

that intermittently spanned from September 2016 to January 2017.

During that lengthy hearing, defendants presented extensive

testimony from several experts and two fact witnesses. The State

called Detective Reyes. The State did not contest the credentials

7
A third defendant, Hancock, was also indicted for participating
in these offenses. However, apparently the State ultimately
dismissed those charges against Hancock and he was released.

28 A-1266-17T3
of defendant's expert witnesses, although it did unsuccessfully

object to the court's consideration of some of the defense's

proffered testimony.

The Retested DNA and Other Forensic Evidence

For the purposes of our present analysis, the most significant

witness who testified at the new trial hearing was Charles Alan

Keel, an expert in forensic DNA testing and analysis. Keel has

worked for over thirty years for various law enforcement agencies

and in private laboratories in various states. He has performed

DNA and other forensic analysis in over 2,000 cases, and has

testified as an expert witness more than seventy times.

Keel testified that, as of 1994 when this murder was

investigated, DNA testing from a sample could either eliminate a

contributor or include him or her as part of a possible group of

contributors. Currently, according to Keel, DNA testing can

discriminate individual sources of biological evidence. Unknown

DNA profiles can be identified by searching the Combined DNA Index

System ("CODIS"), a database of over fifteen million DNA profiles

of known criminals and others, for a match.

Keel explained that current technology allows for the

recovery of DNA from samples that were merely touched by a person

for a brief period of time. In some cases, ten to fifteen seconds

is all that was needed. He confirmed that a sample of skin cell

29 A-1266-17T3
DNA can be obtained from dried sweat, where skin cells have

accumulated. Keel expected to find biological material from the

person who wore the cap, recovered from the video store, during

the commission of the crime.

Keel tested seven areas known to be repositories of biology

that would be left by the habitual wearer of the cap. This "owner

biology" would be DNA imparted by someone who repeatedly wore a

particular article of clothing, such as the cap in this case,

which was not frequently laundered. Such owner biology would be

generally distributed in places where an item was normally handled,

or where there was rubbing of skin.

According to Keel, in each of the seven spots on the cap

tested in this case, at least 99.9% of the DNA found belonged to

one individual. There were two to four other minor contributors

on five of the spots, while two spots essentially produced a

single-source result.

Notably, the retesting revealed no DNA from either defendant

Kelley or Lee found on the cap. Keel searched the CODIS database,

and determined that the habitual wearer of the cap was a known

criminal named Eric Dixon.

Keel also evaluated the facial tissue from the crime scene

that appeared to have blood on it. Testing revealed that the non-

stained portion of the tissue solely contained the DNA of a woman

30 A-1266-17T3
who was related to the victim. Keel found no DNA from either

defendant on the non-stained portion of the tissue. The blood on

the tissue was determined to be from the victim.

Keel also retested the fingernail clippings from the victim,

and he confirmed that no DNA foreign to the victim was found on

the fingernail specimens.

Attempts to Interview Dixon

Joseph H. Aronstamn, a private investigator called to testify

by the defense, was hired in 2015 through the Innocence Project

organization to contact Dixon. Aronstamn traveled to Dixon's home

in Virginia, where he spoke to him in December 2015. Dixon

confirmed to Aronstamn that he had been living in Paterson in July

of 1993, but denied that he knew of Victoria's Video or had heard

of the murder. Aronstamn showed him a photo of the cap. Dixon

insisted that he did not recognize it, that it was not his, and

that he did not know to whom it belonged. Aronstamn did not tell

Dixon that his DNA was found on the cap.

Aronstamn visited Dixon again two weeks later and asked if

he would sign a statement. After leaving the room for ten minutes,

Dixon returned and said that his attorney told him not to sign

anything.

31 A-1266-17T3
Blood-Stain Analysis by Palmbach

Another defense expert, Timothy Palmbach, a forensic

scientist specializing in crime scene reconstruction and blood-

stain analysis, testified at the hearing. Palmbach is a professor

and the chair of a college forensic science department. He worked

for the Connecticut State Police for twenty-two years and

ultimately served as Director of that state's forensic laboratory.

Palmbach was asked to determine whether the evidence in this

matter was consistent with the victim being struck and stabbed in

the front room of the video store and then carried into the back

room. Palmbach concluded that it was not. Palmbach was able to

develop a contrary theory that was consistent with the evidence.

According to Palmbach, his theory conformed with present-day

understanding of blood-stain analysis.

Specifically, Palmbach opined that the victim in this case

had been struck in the head behind the counter, ran down the

hallway dripping blood from his head, and then was stabbed in the

back room where he put up a fight and sustained defensive wounds.

Notably, Palmbach believed that the victim was struck with a

partially or totally cylindrical object, having a diameter of one

and one—half inches.

In support of his theory, Palmbach noted that there was only

a minimal amount of blood by the counter and only small scattered

32 A-1266-17T3
droplets of blood in the hallway between the front and back of the

store. Because of the distance between the droplets, he believed

that they fell from the victim's head as he was moving quickly

down the hallway. The evidence showing two lines of blood running

down the victim's face also indicated to Palmbach that his head

remained upright for a period of time.

Palmbach's opinion that a confrontation and the ultimate

stabbing occurred in the back room was supported by several

factors. These included the lack of additional blood drip in the

front room and hallway; the extensive amount of blood in the middle

of the back room; and the bloodstains on the yellow stool

indicating that it "changed its orientation during the

bloodshedding event." More blood had accumulated in the back room

because the victim had now been stabbed, was no longer running,

and remained in the back room longer. It appeared to Palmbach

that blood fell onto the stool first when it was upright, and then

again after the stool had been knocked over. That is because

there were stains that were not consistent with the stool in its

final position.

Palmbach testified that the height of the bloodstains on the

wall in the small area where the victim's body was found supported

his conclusion that the victim had staggered into this area and

then collapsed face-down onto the floor. Palmbach noted that the

33 A-1266-17T3
area was so small that it was difficult to see how two people

could have carried him in.

Palmbach acknowledged that Dr. Platt, the medical examiner,

had testified to the contrary that the victim had been stabbed

before he was struck. According to Palmbach, the bloodstains

supported a different conclusion. Palmbach noted the victim's

hair was not matted because there was no impact spatter from the

weapon striking a large blood source and projecting the blood

outward. According to Palmbach, repeated blows also would not

create impact spatter if there was not a lot of bleeding; rather,

the repeated blows would create a vertical drip.

Police Interrogation and Investigation Experts

Defendants also presented at the hearing several expert

witnesses on issues of police interrogation and investigation.

Dr. O'Connell

The first such expert, Dr. Michael O'Connell, was a forensic

psychologist, who has testified as an expert in cases involving

false confessions. Dr. O'Connell was asked by defense counsel in

this case to determine whether Kelley's personality traits and

level of cognitive functioning made it possible for Kelley to have

given a false confession in 1993.

Dr. O'Connell found several aspects of Kelley's background

to be noteworthy. He first noted Kelley had been diagnosed in

34 A-1266-17T3
1988 with a traumatic brain injury after being in a serious car

accident and thrown from the vehicle. In 1991, Kelley was deemed

eligible for Supplemental Security Income ("SSI") after he was

diagnosed with organic brain syndrome, i.e., an organic injury

that caused a decreased ability to function both cognitively and

emotionally, such that he was deemed disabled and unable to work.

Further, Kelley's mother was designated as Kelley's representative

payee for SSI benefits, because he was found to be incapable of

handling his own money.

Dr. O'Connell administered several tests to Kelley, which

revealed that Kelley was in the fourth percentile (i.e., the

borderline range of cognitive functioning) with ninety-six percent

of the population functioning at a higher level. Dr. O'Connell

stated that persons who fell below the second percentile are

considered intellectually disabled.

In addition, Dr. O'Connell opined that Kelley had

difficulties with reasoning, social judgment, working and verbal

memory, information processing, and reading recognition. Kelley's

test results were consistent with someone who had had a significant

brain injury and was suffering from organic brain syndrome. The

expert believed that Kelley had lost twenty IQ points due to his

car accident.

35 A-1266-17T3
Dr. O'Connell had Kelley complete a "suggestibility test"

that was specific for interrogation. The expert explained that

suggestibility is a risk factor for giving a false confession.

Other risk factors include the extent to which the person being

interrogated feels: (1) pressured; (2) helpless; (3) that he or

she has no control; and (4) that the experience is so unpleasant

that the benefit of stopping the interrogation outweighs the long-

term consequences of admitting to doing something he or she has

not done.

Given that Kelley displayed he was highly suggestible in a

non-stressful setting with merely negative feedback, Dr. O'Connell

found it was reasonable to conclude that Kelley would be even more

suggestible when experiencing the pressure of what the defense

contends was an inherently-coercive interrogation. The expert

opined that Kelley would have had a marked difficulty making

decisions during an interrogation. That difficulty would stem

from his cognitive deficits, his limited reasoning ability, as

well as his inability to pay close attention to the proceedings,

process information quickly, and remember what was going on.

According to Dr. O'Connell, Kelley could easily become

overstimulated and respond impulsively.

In addition, Dr. O'Connell further noted Kelley stated he was

using heroin on the day of his interrogation, and that jail records

36 A-1266-17T3
confirmed that Kelley was experiencing withdrawal symptoms on July

31. According to the expert, drugs and alcohol can affect someone

suffering from organic brain syndrome more than a member of the

regular population. Kelley's drug use therefore would have further

impaired his ability to think clearly during the interrogation.

Dr. O'Connell opined that, if the police officers in this

case were "forceful" with Kelley, i.e., confident in their

assertions and dismissive of his denials, Kelley would have had a

tendency to "fold[.]" In particular, Kelley would have been

susceptible to leading or misleading questions, scare tactics, and

attempts to lull him into a false sense of security. If the

officers provided him with fabricated evidence, he would likely

have accepted it as true. According to Dr. O'Connell, Kelley

could have said the cap was his because someone else said it was.

His memory was "malleable."

On the whole, Dr. O'Connell concluded that, to a reasonable

degree of psychological certainty, Kelley was at a heightened risk

for making a false confession during his 1993 interrogation.

Interrogation Expert Trainum

Former police detective James L. Trainum, an expert in

interrogation techniques, also testified at the hearing as a

defense expert. Trainum observed that, for years, the common

belief was that people would not confess to a crime that they had

37 A-1266-17T3
not committed unless they were being tortured or they were mentally

ill. However, according to Trainum, it has now been documented

that false confessions occurred in approximately thirty percent

of the cases where there had been DNA exoneration.

Trainum explained that an interrogation did not have to be

lengthy for certain suspects to yield to their questions. Coercive

interrogation tactics – such as falsely stating there was

conclusive evidence of guilt, that a conviction was inevitable,

and that a confession offered the only hope of leniency – will

have more of a psychological impact on some people versus others.

According to Trainum, people who are more susceptible to this type

of high-pressure approach could become convinced that there were

only two options before them, and that they had to pick the "lesser

of the two evils." Those individuals who were at particular risk

for making false confessions included juveniles, people with

limited social maturity, and people with lower IQs.

According to Trainum, studies of false confession cases have

shown that when law enforcement officers obtain false confessions,

whether intentionally or inadvertently, they tend to involve these

circumstances: (1) erroneously identifying an innocent person as

a suspect; (2) using coercive interrogation techniques to convince

the suspect that it was a good idea to admit to something he did

not do; and (3) unintentionally contaminating the confession by

38 A-1266-17T3
providing the suspect with information, such as details about the

crime scene, that he could not know since he was not actually

guilty. Trainum further opined that a false confession was more

likely if the police failed to test its reliability by verifying

and corroborating the information provided.

Trainum believed that police officers often secure false

statements or fabricate evidence unintentionally. He suggested

that "tunnel vision," i.e., being so convinced of a suspect's

guilt that contrary information was disregarded, could play a

"very powerful" role. According to Trainum, officers who are so

focused on what they think is important can have a selective memory

as to what a suspect actually said.

Trainum questioned the reliability of the confessions in this

case in light of the information provided to defendants, the

evidence of contamination and the absence of thorough follow-up.

He noted in particular: (1) the apparent disregard of Thompson's

statement; (2) the new DNA evidence; (3) Paredes's failure to

mention a look-out; (4) the odd coincidence of Kelley correctly

stating the victim's exact age; (5) the unlikelihood that the

victim's head trauma was caused by a car stereo; (6) the leading

questions in both statements, such as the police asking Lee whether

"anyone wiped up"; (7) the conflict as to where drugs were

consumed; (8) Lee's inaccurate inclusion of Paredes in the timeline

39 A-1266-17T3
of events; and (9) Paredes's description of the perpetrator

browsing in the store did not match the claimed "blitz" attack on

the victim.

Trainum did not believe that the evidence supported

defendants' claim that the entire fatal assault occurred behind

the store counter. He found it unusual and unlikely that the

victim's body was carried face-down and then wedged into the

cramped area where it was found. Trainum further questioned the

failure of the police to obtain a search warrant to search Bob's

Supermarket for the stolen goods and to seize Kelley's hamper to

check for residual blood. He also noted that the photo of Lee

contained in the photo array stood out, as it had different

characteristics than all of the other photos.

Trainum found it "difficult to understand" how defendants

would have accomplished everything they said they did in the short

window of time between the murder and when they were seen by

Williams and Hanley shortly before 2:00 p.m. During this twenty

to thirty minute period, defendants claimed to have left the store,

avoided being seen with bloody clothes and stolen goods, walked

to two different stores to fence the items, hid the murder weapon

and unsold items, walked home to change, returned, purchased drugs,

used the drugs, and gone back out onto the street.

40 A-1266-17T3
Lastly, Trainum noted it was unusual that the police were

currently doing nothing to investigate Dixon. He believed that

this continued disinterest in Dixon further exemplified the

"tunnel vision" in this case.

Dixon's rap sheet was admitted into evidence at the hearing,

along with his judgment of conviction. Those records revealed

that approximately three years before this murder, Dixon had

entered a Paterson storefront about a mile from Victoria's Video,

pretended to be a customer, pulled out a knife, demanded money

and, with the knife at her throat, threatened to kill the owner.

Dixon was apprehended and sent to prison for three years. He was

twenty-eight years old when he was released. He returned to

Paterson a few months before the murder in this case.

Thompson

Thompson was called by defendants at the hearing as a fact

witness. He testified that, in 1993, he lived in Paterson and

knew the owner of Victoria's Video. Thompson stated that he went

into the store around 2:00 or 3:00 p.m. on July 28. A black man

was squatting down behind the counter and said "we're closed," so

he walked out. Thompson explained that he only saw the man's

upper body and head, and could not really describe him, except to

say that he appeared somewhat stocky. Thompson claimed to have

never seen this man before. He said he was surprised to see a

41 A-1266-17T3
black man working in the store, since the owner, who was Hispanic,

typically hired only family members.

The day after the incident, Thompson heard about the murder.

He told Victoria that he was willing to speak to the police about

the man he had seen in the shop the day before. He said Victoria

asked him to do so. Thompson accordingly went down to the police

station and looked through a "big book with a lot of photos," but

he did not recognize anyone or see the man from the day before.

Two days later, the police called in Thompson again and showed

him two "sheets" of photos. He again did not see a photo of the

man from the shop, but told police when asked that he did know two

of the men pictured, Kelley and Lee. These men were not his

friends, but he knew them from the neighborhood. Thompson never

heard from the police again.

The State's Rebuttal Testimony from Detective Reyes

As its sole witness at the evidentiary hearing, the State

called Detective Reyes, the lead detective. Reyes generally

described the investigation undertaken by police. Reyes confirmed

that he had destroyed all of his notes pertaining to this case

during the two intervening decades, and that his formal report

from 1993 was all that was left.

Reyes stated that, on July 29, 1993, he received a phone call

from a Paterson resident, Alice Nieves. As we noted earlier in

42 A-1266-17T3
this opinion, Nieves reported that she was at a laundromat on

Union Avenue when she had overheard three young black women talking

about the homicide. In particular, the women allegedly said that

the victim had been killed by two black men and a white man. Reyes

explained that he tried without success to locate the women.

Reyes related that, the next day, July 30, the police received

another tip from a confidential source, who had stated that two

black men and a white man had been in front of Victoria's Video

on July 28 around the time of the homicide, and that two of the

men, one known as "K.C.," and the other who was the son of Mr.

Lee, could be found on the second floor of the apartment building

at the corner of Union Avenue and Jasper Street. Because of this

information, the police were able to locate Kelley and Lee and

bring them down to the station. Reyes acknowledged that he pursued

these two tips, even though none of the eyewitnesses at the video

store described seeing more than one black man.

Reyes recalled that Kelley was cooperative during his

interrogation and had no difficulty communicating with him. Reyes

denied that anyone had threatened Kelley or Lee, told either of

them what to say, or carelessly disclosed details to them about

the crime scene. According to Reyes, Kelley never said that he

was afraid of Lee, or that Lee had forced him to admit to

involvement in the murder. Reyes acknowledged that he never asked

43 A-1266-17T3
Kelley how the victim was carried face-down into such a small

space. Other than Hancock's name, Reyes could not specify what

new evidence he got from Kelley that the police did not already

have.

Reyes explained that he had not taken a formal statement from

Thompson because he did not make an identification and his

information seemed "very basic." Reyes acknowledged that he took

statements from everyone else who was in the video store around

the time of the homicide, including people who had not seen the

perpetrator. Ultimately, Reyes could not say exactly why he did

not take Thompson's statement.

Reyes denied asking Thompson if he knew anyone in the two

photo arrays. Reyes insisted that, if Thompson had told Reyes he

recognized Lee or Kelley, Reyes would have included that

information in his report. Reyes also denied that Thompson ever

said that he had never previously seen the man behind the counter

before.8

Reyes denied that he would have told Paredes that a suspect

had been arrested before she looked at the photo arrays. He

acknowledged that Mousa said the black man he saw was bleeding

from his ear and had blood on both his arms and his shirt. Reyes

8
However, at Lee's trial, Reyes testified that Thompson did say
this.

44 A-1266-17T3
believed that the person who committed this crime did get blood

on him, but acknowledged that there was no proof either Kelley or

Lee did. Reyes could not recall why Kelley's clothes were not

located and taken, even though they had been washed. He did not

know whether anyone had asked Kelley's mother if the clothes were

bloodstained.

Reyes stated that, to his knowledge, the police had not

reopened the investigation or spoken to Dixon since the time his

DNA was found on the cap. Reyes insisted, though, that the DNA

evidence did not conclusively mean that Dixon had committed the

murder, and that he would need to review the case and obtain more

information before he would talk to someone about an incident that

happened more than twenty years ago.

According to Reyes, if he had known in 1993 that the DNA of

Dixon, a black twenty-eight-year-old resident of Paterson who, in

1989, had committed a knife-point robbery in a storefront a few

blocks from Victoria's Video, was on the cap, he would not have

viewed this proof alone as conclusive evidence and charged Dixon.

However, he agreed he would have questioned Dixon as part of the

investigation.

Upon being asked what he would do today, whether the case was

worth investigating given all the new information, including

45 A-1266-17T3
Dixon's recent denial of ownership of the hat, Reyes responded,

"At this point, I still don't have enough information."

IV.

The Trial Court's New Trial Ruling

After considering these proofs from the nine-day evidentiary

hearing, and extensive briefing and argument, the trial court

issued a lengthy oral decision on September 15, 2017, granting

both defendants Kelley and Lee a new trial. Although the court

discussed numerous grounds for its decision, its core focus was

upon the retested DNA evidence from the baseball cap. The court

found that evidence indicative that a third party, i.e., Dixon,

had attacked and killed the victim, rather than either defendant.

Among other things, the court found that, given that the

identity of the perpetrator was in question here, the DNA on a cap

found so close to the victim and identified by an eyewitness was

material evidence. The court was persuaded by the "comprehensive"

proof that apparently Dixon, and not Lee, owned the cap. This

proof was established through the use of new and enhanced

technology and was of a type that would "probably change" the jury

verdicts here. In the court's view, this proof was strong evidence

that was clearly and convincingly "capable of raising a reasonable

doubt as to the guilt of both defendants and [creating] a link

between a third party and the crime."

46 A-1266-17T3
In addition, the court found that the new DNA evidence called

into doubt Paredes's identification of Lee as the man she had seen

wearing the cap. The strength of this evidence of third-party

guilt was magnified by the fact that Dixon had committed a similar

crime not far from the video store. Moreover, the court found it

significant that as of July 1993, Dixon had been recently released

from prison, was then residing in Paterson, and was twenty-eight

years of age. The new evidence of Dixon's potential guilt was not

merely cumulative, impeaching, or contradictory.

Alluding to Keel's unrebutted expert testimony, the court

observed that had either Kelley or Lee been wearing the cap during

the crime, they would have left sufficient DNA on the cap for

identification purposes, given the sensitivity of current DNA

technology. Since the cap only had to have been worn for ten to

fifteen seconds for a transfer of DNA to occur, the court reasoned

that Paredes's testimony about the length of time she and the man

wearing the cap had been together in the store confirmed that the

man who wore the cap was identifiable. The court determined that

the new DNA evidence thus could lead a jury to conclude that the

portion of Kelley's confession, in which he claimed to be the

owner of the cap, was false.

The court also found "compelling" certain other arguments

made by defense counsel, "in the totality of the circumstances and

47 A-1266-17T3
in the shadow of the new DNA evidence," even though those arguments

did not alone meet the criteria for a new trial. In particular,

the court was troubled by the way Reyes had presented the photo

array to Paredes, which the court noted was inconsistent with

current standards under State v. Henderson,
208 N.J. 208 (2011),

and highly suggestive.

Additionally, the court was concerned about the police's

decision to abandon its theory that one man had committed the

crimes – which was based upon the testimony of three eyewitnesses

– in favor of a theory that there were three perpetrators, which

was premised solely upon "double hearsay" from two informants.

The court also found Trainum's testimony regarding alleged

"tunnel vision" and confession "contamination" to be of "great

significance." The court was troubled that Reyes had "testified

in essence that, even if he had the same quality of evidence

regarding the latest DNA of Eric Dixon that was found on a hat

described by [Paredes] as being worn by Lee, [Reyes] still would

not have considered investigating Mr. Dixon."

The court disagreed with the State that the new evidence of

Dixon's DNA and his similar crime would not be admissible before

a new jury. It was satisfied that Dixon's judgment of conviction

would be admissible under the rules of evidence, and also that the

48 A-1266-17T3
victim or the investigating officers would be able to testify as

to the facts of the case that resulted in Dixon's conviction.

The court found that there was other testimony that now had

to be considered potentially more significant, in light of the new

DNA evidence. In particular, the court noted: (1) the absence

of any witnesses who saw the defendants soon after the homicide

with blood on their clothes; (2) the apparent inconsistency between

the facts set forth in the defendants' confessions and Palmbach's

version of events, based upon the bloodstain evidence; (3) the

failure to recover Kelley's bloodstained clothes; and (4) the

manner in which police had handled the potential testimony of

Thompson.

Lastly, the court noted the State's heavy reliance on the

defendants' confessions, and greater current awareness in society

that false confessions can occur.

For all these reasons, the trial court granted the motions

of both defendants for a new trial.

Subsequent Procedural Events

Following the new trial ruling, the State moved for leave to

appeal, which we granted. The trial court ordered defendants

released on bail, pending the court-ordered new trials. The State

filed an emergent application to overturn the bail order, which,

after a short interim stay and briefing, this court upheld. The

49 A-1266-17T3
Supreme Court ultimately denied the State's request for emergent

relief.

In its brief, the State argues that the trial court's new

trial order must be set aside as a "clear abuse of discretion" for

numerous reasons. The State generally asserts that the court

misunderstood the significance of the DNA retest results, and

failed to mention or adequately consider significant other

evidence pointing to defendants' guilt.

Specifically, the State contends the court failed to consider

properly: (1) the eyewitness testimony of Williams and Hanley

placing defendants in the vicinity of the video store on the date

of the killing; (2) the expert testimony of the coroner and

Joselito Versoza; (3) the inculpatory statements made by Kelley

to third parties and the police; (4) the confessions of both Kelley

and Lee; and (5) inconsistencies in Lee's trial testimony and that

of his alibi witness.

The State further argues the trial court misunderstood Keel's

testimony and gave it undue weight. In addition, the State

maintains the court did not appropriately consider Reyes's

testimony and mischaracterized critical portions of it.

Further, the State argues the court erred in declaring that

evidence of Dixon's third-party guilt would be admissible at new

50 A-1266-17T3
trials. It emphasizes that no eyewitnesses had observed Dixon at

the video store, and that Dixon's DNA was not found on any other

items from the crime scene apart from the cap. In addition, the

State notes that defendants both unsuccessfully pursued "third

party guilt" theories, albeit without reference to Dixon, at their

1996 trials. The State also faults the trial court for other

assorted legal errors.

In order 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." State v.

Carter,
85 N.J. 300, 314 (1981) (citations omitted); State v.

Sullivan,
43 N.J. 209, 233 (1964); State v. Armour,
446 N.J. Super.
295, 312 (App. Div.), certif. denied,
228 N.J. 239 (2016). As to

the last element, the test is a probability, not a mere

possibility, there will be a contrary result on retrial. Sullivan,

43 N.J. at 233 (citations omitted). All three elements must be

met before the evidence can justify a new trial. State v. Ways,

180 N.J. 171, 187 (2004) (citations omitted); Carter,
85 N.J. at
314 (citations omitted).

51 A-1266-17T3
"[E]vidence that supports a defense, such as alibi, third-

party guilt, or a general denial of guilt would be material" under

the first prong of the Carter test, where the focal issue at trial

is the identity of the perpetrator. Ways,
180 N.J. at 188. In

particular, DNA testing showing that another person was the source

of the crime scene evidence attributed to defendant would be

"material to the issue [of the perpetrator's identity] and not

merely cumulative or impeaching or contradictory." State v.

Peterson,
364 N.J. Super. 387, 398 (App. Div. 2003) (brackets in

original) (citations omitted). DNA test results that "not only

tended to exculpate defendant but to implicate someone else" would

qualify as proof of the type "that would probably change the jury's

verdict if a new trial were granted." Id. at 398-99 (citations

omitted); see also State v. DeMarco,
387 N.J. Super. 506, 517

(App. Div. 2006).

As a procedural matter, we are cognizant that defendants, who

were convicted in 1996, did not move to have the DNA from the cap

retested until 2010 and did not move for new trials until 2016

after the retested DNA results revealed exculpatory information.

Generally, under Rule 3:22-12(a)(1), a motion for post-conviction

relief must be filed within five years of a defendant's conviction,

subject to certain exceptions. One of those exceptions, of great

importance here, is where "enforcement of the time bar would result

52 A-1266-17T3
in a fundamental injustice" if there is "a reasonable probability"

that a "defendant's factual assertions were found to be

true . . . ." R. 3:22-12(a)(1)(A). Where, as here, the

application for post-conviction relief is a second or subsequent

petition, such applications must be made no more than a year after

the factual predicate was discovered or could have been discovered

through reasonable diligence. R. 3:22-12(a)(2)(B).

A recognized basis for excusing these general time bars, is

where a defendant offers newly-discovered evidence that raises

substantial doubts about his guilt and which could not have been

obtained sooner with reasonable diligence. See, e.g., State v.

Nash,
212 N.J. 518, 546-49 (2013) (addressing claim of newly-

discovered evidence in the context of a PCR application); State

v. Armour,
446 N.J. Super. 295, 304 (App. Div. 2016) (where

defendant sought new trial based on ineffective assistance of PCR

counsel, relying on newly-discovered evidence).

The State also cites Rules 3:22-4 and 3:22-5, intimating that

defendants' present arguments for a new trial were either rejected

previously, or could have been raised in previous appeals.

Although the trial court here did not expressly address these

alleged procedural bars under Rule 3:22 in its oral ruling, it

implicitly treated defendants' motion for relief to be timely. We

concur with that approach.

53 A-1266-17T3
The DNA retesting methods that Keel discussed in his 2017

report did not exist when defendants' cases were tried two decades

earlier. Indeed, the DNA testing statute itself,
N.J.S.A. 2A:84A-

32a, contains no time bar.

The newly-discovered DNA retesting results did not exist

within five years of defendants' convictions, nor within the one-

year supplemental period for second or subsequent petitions under

Rule 3:22-12(a)(2). Defendants moved for an evidentiary hearing

and a new trial with reasonable diligence after the retesting

indicated Dixon's potential third-party guilt. The new evidence

was not a subject of defendants' direct appeals or their prior

collateral attacks, nor could it have been. Hence, Rules 3:22-4

and 3:22-5 do not apply.

Absent the DNA retesting results, we are uncertain about

whether the additional proofs presented by defendants at the

evidentiary hearing (such as the expert testimony concerning

alleged false confessions, flawed eyewitness identification, and

so on) would have provided a sufficient basis to surmount the

procedural bars under Rule 3:22. We need not resolve that

question, however, because the DNA retesting results and Keel's

unrebutted expert testimony explaining those results, provide an

ample basis to qualify as newly-discovered evidence that could not

have been discovered sooner. Once that proof was presented, the

54 A-1266-17T3
trial court had the prerogative to consider the testimony of

defendants' additional witnesses as relevant to whether the non-

DNA evidence in the State's case sufficiently demonstrated their

guilt so as to render the DNA evidence insignificant or its

omission from the 1996 trials, as the State asserts, harmless. 9

In sum, there are no procedural barriers here to preclude

consideration of defendants' new trial motion on its merits.

VI.

We turn now to the substantive heart of the matter: the impact

of the DNA retesting results here on the soundness of the verdicts

that produced defendants' convictions. In considering the copious

record before us, we are mindful of our scope of review.

A motion for a new trial generally "'is addressed to the

sound discretion of the trial judge, and the exercise of that

discretion will not be interfered with on appeal unless a clear

abuse [of discretion] has been shown.'" State v. Brooks,
366 N.J.

Super. 447, 454 (App. Div. 2004) (quoting State v. Russo,
333 N.J.

Super. 119, 137 (App. Div. 2000)). Appellate review of such

rulings is ordinarily limited to a determination "'whether the

9
Indeed, as defense counsel has pointed out, the DNA testing
statute allows the court, when considering whether to grant such
a request to consider in its discretion "any evidence whether or
not it was introduced at trial . . . ."
N.J.S.A. 2A:84A-32a(d)(5).

55 A-1266-17T3
findings made by the trial court could reasonably have been reached

on sufficient credible evidence present in the record.'" Ibid.

Here, the situation is a mixed one because the judge who

presided over the evidentiary hearing and who granted defendants'

new trial motion in 2017 is not the same judge who presided over

the jury trials of both defendants in 1996. To the extent the new

trial ruling is based on the testimony adduced at the lengthy

evidentiary hearings, we accord substantial deference to that

judge and his first-hand opportunity to consider the weight of

that testimony, particularly Keel's expert forensic testimony.

However, insofar as the motion judge's ruling is based upon an

evaluation of the records of the 1996 trials, we owe his evaluation

no special deference and consider those materials de novo.

Having thoroughly considered the trial court's ruling, in

light of these principles and the substantive law, we affirm the

order granting both Kelley and Lee new trials. Our affirmance

rests fundamentally on the substantial evidence of Dixon's

potential third-party guilt that was revealed through the DNA

retesting.

A criminal defendant is entitled to introduce evidence that

another person committed the crime with which he has been charged,

subject to exclusionary considerations under N.J.R.E. 403. State

56 A-1266-17T3
v. Cook,
179 N.J. 533, 566 (2004) (citation omitted). As Keel's

expert testimony persuasively explained, the evidence of Dixon's

DNA found on the cap and the absence of DNA from either defendant

on the cap is – at the very least – substantial evidence of third-

party guilt that justifies new trials for both defendants.

The DNA evidence here did not have to conclusively establish

Dixon's third-party guilt and totally exonerate Kelley and Lee in

order to support a meritorious request for a new trial based upon

newly-discovered evidence. Rather, the evidence simply had to

show that another person was the source of important crime scene

evidence attributed to defendants where, as here, the identity of

the perpetrator was a central issue in the case.

Among other things, the relevance of the new DNA evidence was

magnified here by: (1) the doubt it cast upon the accuracy of

Paredes's identification of Lee, proof which was heavily relied

upon by the State at both trials; (2) Kelley's apparently-false

statement in his confession that he owned the cap; (3) the

testimony of multiple eyewitnesses who saw only a single black man

in the video store; (4) Keel's testimony that, with current

technology, mere seconds of wear of a cap can transfer sufficient

DNA for identification purposes; (5) Thompson's testimony that he

told police that he saw someone other than Kelley or Lee; and (6)

Dixon's age in 1993, which was consistent with the estimated age

57 A-1266-17T3
of the killer(s), his presence in Paterson around the relevant

time, and his prior commission of a similar crime.

As to Kelley, individually, the State stresses he had already

been excluded as a contributor of the DNA evidence on the cap at

the time of his trial in 1996. But that is not the same as

revealing to a jury that the cap belonged to a third party who

might well be the real perpetrator. Kelley had already linked

himself to the cap through his confession. Kelley's confession

that he and Lee committed the crime was echoed by Paredes's (now-

questionable) identification of Lee and the then-inconclusive DNA

evidence as to Lee.

We agree with the State that the retested DNA evidence does

not conclusively establish that Kelley and Lee were not present

at the video store and were not guilty of participating in any

offenses there. It is conceivable that, at retrial, the State

will persuade new jurors that, despite the new DNA results, one

or both defendants were guilty beyond a reasonable doubt of one

or more of the crimes charged. For instance, the State may now

attempt to prove that Dixon, along with one or both defendants,

committed the robbery and murder, although that revised theory

would clash with certain details within the narratives of the

eyewitnesses and defendants' confessions.

58 A-1266-17T3
We need not forecast here what might occur at any new trials.

All we need decide is whether the trial court erred in granting

those trials. We discern no such error.

We categorically reject the State's position that the

omission of the now-revealed DNA retesting evidence at defendants'

1996 trials was merely "harmless." See State v. Macon,
57 N.J.
325, 340-41 (1971) (regarding harmless error). To the contrary,

such exculpatory proof, had it been presented, could easily have

engendered reasonable doubt and produced contrary verdicts of

acquittal.

DNA evidence concerning the cap was presented in the State's

case at both trials, and the cap itself was admitted as a State's

exhibit. We recognize that the State did not assert at Kelley's

trial that his DNA was found on the cap. But the State did present

Kelley's written confession stating that he owned the cap.

Moreover, the State maintained at both trials that evidence

concerning the cap served to link, directly or indirectly, both

defendants to the crime scene. The retesting of the cap now places

that evidence in a markedly different light. Indeed, even if no

DNA proof had been presented by the State at either 1996 trial,

the present DNA results alone would supply an adequate basis for

new trials, as critical exculpatory evidence.

59 A-1266-17T3
The State argues the trial court failed to properly consider

the compelling other proofs of defendants' guilt presented at the

1996 trials. For instance, the State maintains that the trial

court failed to consider the eyewitness testimony of Williams and

Hanley placing Kelley and Lee in "close proximity to the scene of

the murder at the relevant times . . . ." However, the fact that

Kelley and Lee had been seen near Victoria's Video was hardly

surprising, since both defendants lived in the neighborhood.

Moreover, neither Williams nor Hanley stated that either

defendant did anything to suggest that they were about to commit,

or had just committed, a crime. Rather, defendants allegedly were

initially at St. Mary's Church seeking to receive some free food.

When Williams and Hanley saw defendants after the murder had been

committed, neither man was bloodied, acting unusually, nor seen

in possession of stolen goods.

The State contends the trial court improperly disregarded

Williams's testimony about the inculpatory statements made by

Kelley shortly after the murder; and Reyes's testimony that he

heard Kelley tell Hancock at the police station to "just give it

up." However, the significance of Williams's testimony is undercut

by the DNA evidence pointing to another possible perpetrator, and

also by Dr. O'Connell's testimony as to the magnitude of Kelley's

head injury and cognitive decline. Indeed, Dr. O'Connell's expert

60 A-1266-17T3
opinion bolstered Williams's claim that Kelley was a "strange"

person who made odd jokes and was not taken seriously. Likewise,

the significance of Reyes's trial testimony was arguably

diminished by the new DNA evidence, Dr. O'Connell's testimony, and

Trainum's testimony about Kelley's susceptibility to coercive

interrogation techniques.

The State further argues that the trial court failed in its

ruling to consider the testimony of Dr. Platt and Versoza, which

allegedly contradicted Palmbach's reconstruction of the murder.

However, Dr. Platt never offered an opinion about why there was

not more blood behind the counter and in the hallway. Moreover,

Versoza testified at Lee's trial only that the absence of skin on

the victim's fingernail clippings reflected a lack of any

significant struggle.

The trial court did not definitively conclude that Palmbach

was necessarily correct. The court simply recognized that, as

noted above, defendants would be able to present at their

respective new trials Palmbach's alternate theory of what had

occurred at the crime scene.

Next, the State argues that the trial court erred in

considering Paredes's identification of Lee in light of the new

standards for eyewitness identification announced by the Supreme

Court in State v. Henderson,
208 N.J. 208 (2011). As the State

61 A-1266-17T3
correctly notes, the Court in Henderson expressly ruled that its

modification of the standards of eyewitness-identification

evidence was not to be given retroactive effect. Id. at 220, 302.

Even so, we are unpersuaded the trial court here was engaging in

an improper retroactive application of Henderson. Rather, the

import of the trial court's ruling is that the evidentiary aspects

of Henderson (such as the new Model Criminal Jury Instruction10 on

eyewitness identification and the right to present expert

testimony on the subject) would apply at any new trials in this

case. That is because defendants' original trials would be

rendered nullities, and the parties would be required to proceed

at the new trials as though there had been no prior trials at

all.11

The finality of any decision or ruling reached in a trial is

negated when a new trial is mandated, such as by a declaration of

mistrial. All matters decided at the first trial, such as the

admissibility of evidence or the voluntariness of a confession,

may be revisited at the second trial. State v. Munoz,
340 N.J.

Super. 204, 220 (App. Div. 2001); State v. Hale,
127 N.J. Super.

10
Model Jury Charges (Criminal), "Identification: In-court and
Out-of-court Identifications" (rev. July 19, 2012).
11
We agree with the State that the non-evidentiary aspects of
Henderson (such as the new required police practices) would not
govern this matter.

62 A-1266-17T3
407, 412-13 (App. Div. 1974). The first trial is deemed a nullity

and the parties must proceed as though there had been no trial at

all. Hale,
127 N.J. Super. at 412 (citations omitted).

The parties are thus returned to their original positions,

and at the new trial, can introduce new evidence and assert new

defenses not raised at the first trial. Ibid. (citations omitted).

The admissibility of such evidence is generally governed by the

law now in effect, and not the rules of admissibility that were

in force at the time of the first trials in 1996. See generally

N.J.R.E. 101 (regarding the application of the Rules of Evidence).

The State further emphasizes the detailed confessions

provided by Kelley and Lee. However, the motion judge was entitled

to accept Trainum's testimony that the reliability of the

confessions was at least questionable. Kelley's confession may

well have been influenced by his diminished mental capabilities.

In addition, Lee's confession may have been derivatively tainted

by him being advised about Kelley's confession.

We reject the State's argument that the trial court did not

appropriately consider Detective Reyes's testimony at the

evidentiary hearing. We are mindful that Reyes denied posing

leading questions to Kelley, or disclosing information to him, or

revealing to Paredes that a suspect had been arrested. Even so,

the motion judge had the right as a fact-finder at the hearing to

63 A-1266-17T3
accord Reyes's assertions limited credible weight. State v.

Locurto,
157 N.J. 463, 470-71 (1999). The judge apparently found

Trainum's competing testimony to be more impressive. Although the

State insists that Reyes did not say he would never investigate

Dixon, Reyes did display at the hearing a persistent reluctance

to acknowledge that Dixon might be a culpable party.12

We also reject the State's argument that the trial court did

not assign appropriate significance to Lee's inconsistent trial

testimony and that of his alibi witness. Even if Lee and his

defense witnesses were not believed at trial, that does not require

the court to ignore the powerful import of the newly-discovered

exculpatory DNA evidence and of Dixon's potential third-party

guilt.

In conclusion, we are unpersuaded by the State's arguments

that the State's other evidence at the 1996 trials is so

unassailable to deprive these defendants a second chance to be

tried fairly before juries, now with the benefit of the newly-

discovered exculpatory DNA evidence. The trial court did not

abuse its discretion, nor did it misapply the law in ordering new

trials.

12
That said, we do not offer a view on whether or not Reyes or the
other police involved in the investigation engaged in "tunnel
vision." That question remains to be evaluated by new juries, if
presented by the parties and the evidence.

64 A-1266-17T3
All other issues raised by the State lack sufficient merit

to warrant discussion. R. 2:11-3(e)(2).

VII.

We end our analysis by briefly addressing the State's argument

that the trial court mistakenly ruled that proof of Dixon's prior

"bad acts" and his 1989 conviction for robbery would be admissible

as third-party guilt evidence at defendants' new trials. We

disagree with the State's position.

As we have already noted, a defendant may be entitled to

introduce evidence that another person committed the crime with

which he or she has been charged. Cook,
179 N.J. at 566 (citation

omitted). In that context, the standard for introducing defensive

"other-crimes" evidence under N.J.R.E. 404(b) is lower than the

standard imposed on the State when it seeks to use such evidence

to incriminate a defendant. Id. at 566-67 (citation omitted);

State v. DeMarco,
387 N.J. Super. 506, 520 (App. Div. 2006). This

is because the defendant is offering the proof for an exculpatory

purpose and there is no risk to him or her. Cook,
179 N.J. at 567

(citation omitted). As such, the standard of admissibility is

simple relevance to guilt or innocence, subject to offsetting

exclusionary factors under Rule 403. Ibid.

"[A] defendant may use similar other-crimes evidence

defensively if in reason it tends, alone or with other evidence,

65 A-1266-17T3
to negate his guilt of the crime charged against him." State v.

Garfole,
76 N.J. 445, 453 (1978) (citations omitted). Importantly,

a "lower standard of degree of similarity of offenses may justly

be required of a defendant using other-crimes evidence defensively

. . . ." Id. at 452. There must simply be some link or thread

between the third party and the victim or crime that bears on the

State's case. State v. Forin,
178 N.J. 540, 591 (2004); State v.

Koedatich,
112 N.J. 225, 300 (1988). A defendant need only

"engender reasonable doubt of his guilt whereas the State must

prove guilt beyond a reasonable doubt." Garfole,
76 N.J. at 453.

When a prosecutor attempts to present other-crimes evidence

against a defendant, a rigorous four-factor test of admissibility

must be satisfied under the criteria of State v. Cofield,
127 N.J.
328, 338 (1992). But as the Supreme Court more recently explained

in State v. Weaver,
219 N.J. 131, 150-51 (2014), a "more relaxed"

admissibility standard governs so-called "reverse 404(b)" proof

of a third-party's prior bad acts. Trial courts need only

determine that "the probative value of the evidence is not

substantially outweighed by any of the Rule 403 factors," which

are "undue prejudice, confusion of issues, or misleading the jury,"

and "undue delay, waste of time, or needless presentation of

cumulative evidence." See Cook,
179 N.J. at 567.

66 A-1266-17T3
The State maintains that evidence of Dixon's prior conviction

would not be admissible at a new trial, because there is allegedly

no "factual nexus" tying that conviction to the current crime. We

disagree. Dixon's earlier crime of robbery was sufficiently

similar in nature to warrant consideration at a new trial. His

intervening incarceration made it irrelevant that three years had

passed between the two crimes.

Moreover, Dixon's age at the time of the instant murder and

the DNA evidence pointing to his presence at the murder scene,

warrants a jury's consideration of his criminal background at the

new trials. Given the low threshold for the admissibility of

third-party guilt evidence, we discern no abuse of discretion in

the trial court's prescriptive evidentiary ruling. The parties

shall be guided accordingly at any new trials.13

VIII.

We conclude this lengthy opinion with some thematic

observations. Our system of criminal justice fundamentally

depends upon the soundness of the evidence presented to jurors at

trial. When, as here, the soundness of that evidence and the

resulting verdicts is seriously undermined by newly-obtained DNA

13
We need not decide here, however, whether any of the "other
crime" proof concerning Dixon would need to be restricted or
sanitized under N.J.R.E. 403. The precise scope of the evidence
is for the judge who presides over any retrials to determine.

67 A-1266-17T3
evidence of third-party guilt, we cannot turn a blind eye to the

revelation and the probability that defendants, who have been

incarcerated since 1996, would have been acquitted.

We are very mindful that over two decades have passed since

defendants' trials, and that it now will be challenging for the

State to locate witnesses and reactivate a stale case, and

distressful for the family of the victim. But, despite those

challenges, the rule of law justifies such new trials, with new

jurors evaluating a more complete and informative record with

fresh eyes and the benefit of current scientific technologies. We

by no means comment here on the State's decision about whether to

proceed with such new trials, and defer to the prosecutor's sound

discretion in that regard.

In sum, we have not decided these men are innocent. We only

conclude the trial court did not err in granting them another

opportunity, with the insight of new DNA results, to make the

State prove their guilt beyond a reasonable doubt. Simple justice

requires no more, and no less, than that.

Affirmed.

68 A-1266-17T3

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