STATE OF NEW JERSEY v. LOUIS WATLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1132-07T41132-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS WATLEY,

Defendant-Appellant.

_______________________________________

 

Submitted December 2, 2008 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 98-01-00099.

Louis Watley, appellant pro se.

Thomas J. Romankow, Union County

Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Louis Watley appeals from the denial of a motion for post-conviction relief. He is serving an aggregate sentence of eighteen years for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and related crimes. This court affirmed his conviction, and the Supreme Court denied his petition for certification. State v. Watley, No. A-4295-00 (App. Div. Apr. 23, 2004), certif. denied, 180 N.J. 458 (2004).

Defendant filed a petition for post-conviction relief in 2005. On a prior appeal, we affirmed the trial court's decision to deny the petition on all but one of the numerous issues raised. (slip op. at 8-11, 18). We concluded, however, that defendant established a prima facie case of ineffective assistance of counsel based on his trial attorney's stipulation about blood-type evidence, failure to object to portions of the State's opening and closing arguments addressing blood stains and failure to object to testimony about the blood stains given by the investigating detective and the victim. (slip op. at 16-18); see State v. Preciose, 129 N.J. 451, 462-63 (1992). Accordingly, we remanded for an evidentiary hearing on those claims.

We limit our discussion of the evidence and arguments presented at trial to the facts that provide the context essential for our discussion of defendant's claim of ineffective counsel. Defendant's challenge to his trial attorney's performance is based on her treatment of blood evidence relevant to his conviction for aggravated sexual assault. The victim testified about acts of penetration that occurred in defendant's bed on a day when she was menstruating. After the crime was reported, defendant's house was searched. A stained bed sheet was seized. Controlled samples of defendant's and the victim's blood and saliva were taken, and DNA extracted from the stain on the bed sheet was tested. The results confirmed that the stain contained defendant's DNA and the DNA of another person. The testing did not permit either the defense expert or the State's expert to conclusively identify or rule out the victim as the person who contributed the unidentified DNA extracted from the stain.

At trial, defense counsel and the prosecutor agreed to stipulate to the chain of custody for the bed sheet and the controlled samples of blood and saliva that were taken from defendant and the victim. They also stipulated that: semen and blood were detected on the bed sheet; no semen was detected in the victim's underwear; and defendant's blood type is "B" and the victim's is "A." The stipulation did not identify the type of the blood found on the bed sheet, and no evidence about the type of the blood that was found on the sheet was introduced at trial. Although the scientific evidence of identity based on the stained sheet was limited to the DNA evidence, the detective who retrieved the sheet from defendant's bed testified that the stain appeared to be dried blood, and the victim was shown a photograph of the bed sheet, which she described as showing her blood on the sheet.

During opening argument, the prosecutor told the jurors that they would hear that the victim's "blood type was found on the bed sheet." In closing, the prosecutor argued, "[the victim] was raped in that bed. That blood stain is [hers.]"

On remand, Judge Anzaldi, who presided at defendant's trial, conducted an evidentiary hearing in accordance with this court's mandate. The attorney who represented defendant at trial, Cassandra Savoy, and the defense expert who addressed the State's DNA evidence, Dr. Robert Shaler, testified at that hearing.

At the evidentiary hearing, Savoy testified about her experience, trial preparation and her decisions to agree to the stipulated facts and refrain from objecting to the testimony and argument about the blood stain. Based on her prior experience representing defendants in trials involving DNA evidence, she did not view the critical question as whether there was blood on the sheet removed from defendant's bed or the type of the blood that was present. In her view, DNA evidence was superior because, unlike blood-type evidence that classifies people in a few large groups, DNA evidence can identify or exclude individuals. DNA evidence was also more important than blood- type evidence because the State was relying on DNA evidence.

Focusing on the DNA evidence, Savoy retained an expert who would call the value of the State's evidence into question. She retained Dr. Shaler, formerly a medical examiner with the Manhattan Coroner's Office, who had done "pioneering" work in the field of DNA evidence. In addition to corresponding with him in writing and by telephone, she spent four to five hours with Dr. Shaler in his home in preparation for trial.

Dr. Shaler testified about his efforts. He not only reviewed the State's results but also examined the underlying data at the State Police lab. He received all of the data he requested and needed to formulate his opinion, which was that the unidentified DNA extracted from the stain on the bed sheet could have been left by many persons in addition to the victim. In addition, he developed a basis for attacking the validity of the identifying marker that prevented exclusion of the victim as a possible donor of the unidentified DNA.

In an effort to establish that the stipulation about blood on defendant's bed sheet was improper, defendant questioned Dr. Shaler about the absence of evidence that the stain was a blood stain. Dr. Shaler explained that there was a lab report that showed the bed sheet tested positive for human blood and semen. He also noted that DNA of two persons would not have been extracted from the stain if the stain were colored by a substance other than human blood.

Defendant also questioned Dr. Shaler about the absence of "blood type" evidence linking the victim to the blood stain. According to Dr. Shaler, the stain on the sheet was not tested for blood type because it was a "mixed stain." For that reason, "blood typing" would have been "problematic." With "a mixture of . . . bodily fluids doing A/B/O typing is not as definitive as DNA typing so it makes sense to continue on and not do the A/B/O typing and do the DNA typing." The test would be positive for each blood type present.

Savoy explained that she stipulated to the blood types of the victim and defendant and that blood was found on the bed sheet because the State could not conclusively establish that the victim was in defendant's bed through blood-type evidence. Moreover, the facts she agreed to stipulate did not link the victim's blood type to the stain on defendant's bed sheet, and the State's physical evidence was based on DNA retrieved from the sheet, not blood type. Thus, she did not view the stipulation as having evidential value prejudicial to the defense, and she viewed the stipulation as a way to avoid overwhelming the jurors with scientific evidence by limiting the presentation of this technical evidence.

Savoy also articulated her reasons for not objecting to testimony about blood on the sheet offered by the detective and the victim. She did not object to the detective's testimony because he likely could provide a foundation for his lay opinion that the stain on the bed sheet looked like dried blood. While Savoy could not recall hearing the victim's testimony identifying the stain on the sheet as her own and did not remember what she was thinking when the victim gave that testimony, she noted that she could not prevent the victim from telling her story, which was that she was menstruating at the time of the sexual assault and left blood on the sheet of defendant's bed.

Savoy also had grounds for declining to object to portions of the prosecutor's opening and closing statements referencing the blood stain. She had two reasons for allowing the prosecutor's opening statement to pass without objection despite the reference to a fact never established at trial that the victim's "blood type was found on the bed sheet." Savoy believed that she could argue the State's failure to present such evidence in closing if necessary, and she was not certain that the prosecutor would not attempt to elicit that evidence from a DNA expert. She did not object when the prosecutor, in summation, urged the jurors to find that the victim's blood was on defendant's bed sheet because there was some support for that argument in the State's DNA evidence. Although that evidence was inconclusive, it intended to show that the victim was among the persons who could have contributed to the stain.

In a written opinion dated September 28, 2007, Judge Anzaldi, who presided over the trial and the evidentiary hearing, found:

1. As to the failure to . . . object to the prosecutor's opening remarks, I find same without merit. If the prosecutor was going to make an allegation at opening, then defense certainly had the right to wait and see where the evidence would take them and to challenge the [S]tate's failure to produce that which it said it could produce in opening.

2. Failure to object to the detective's testimony referencing blood on the sheet.

I find this clearly is without merit, since both the defense expert and the [S]tate's expert agreed that there was, in fact, blood on the sheet.

3. As to the victim's identifying the blood on the bed sheet as her blood, [defense counsel] acknowledged not recalling or hearing the testimony. The failure to object does not cause this court to find that counsel's performance was deficient. [The victim] testified that she was familiar with the interior of the defendant's home. She testified that she was menstruating. She testified that the blood that she saw in the picture [of defendant's bed] was hers.

4. Failure to object to the prosecutor's closing remarks that the blood on the bed sheet was the victim's. I find that [defense counsel's] reasons for not objecting to those remarks clearly fall within trial tactics. She believed this case would be decided on DNA, not on blood type. She was also concerned that she did not wish to alienate the jury by objecting to the prosecutor's comments. I find that the prosecutor's comments were fair comment under the circumstances. To wit: the victim placed herself in the home. The victim was bleeding. Blood was found on the bed. It was fair comment to suggest to the jury that it was the victim's blood.

With respect to the stipulation, the judge determined:

As part of the trial strategy, Ms. Savoy agreed to enter into the stipulation for a number of reasons. Specifically, she did not want to overwhelm the jury with science and secondly, DNA was the crux of the case. The stipulation was primarily a chain of custody of the controlled blood samples taken from [the victim] and the defendant. No blood typing was conducted as to the sheet. As to the sheet, both the [S]tate and defense experts agreed that a mixed stain of semen and human blood were detected on the sheet and that the DNA was inconclusive.

Judge Anzaldi concluded:

Ms. Savoy's conduct met all professional standards in defending a complex DNA trial. She was prepared. She was ready. She was experienced[,] and she aggressively defended the defendant's rights. Neither prong of Strickland [v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)] has been met. Her representation did not fall below an objective standard of reasonableness, nor fall outside the range of competence demanded of criminal defense attorneys. The results . . . would not have been different had she interposed the objections set forth above. . . . The defense aggressively argued to the jury the perceived deficiency of proofs in the [S]tate's case.

On appeal, defendant raises four issues:

I. PCR COURT ERRED IN DENYING DEFENDANT

RELIEF ON INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM WHERE IT WAS CLEAR COUNSEL KNOWING[LY] ALLOW[ED] PROSECUTOR TO PRESENT FALSE SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO THE JURY. THAT EVIDENCE WAS THE PRINCIPLE [SIC] PIECE OF FORENSIC EVIDENCE LINKING THE DEFENDANT TO THE CRIME.

II. PCR COURT ERRED IN DENYING DEFENDANT

RELIEF WHERE IT WAS CLEAR PROSECUTOR PRESENTED FALSE SEROLOGIC (ABO BLOOD TYPE) EVIDENCE TO THE JURY. THAT EVIDENCE WAS THE PRINCIPLE [SIC] PIECE OF FORENSIC EVIDENCE LINKING THE DEFENDANT TO THE CRIME. BRADY EVIDENCE ALSO WITHHELD RELATED TO THE SAME.

III. PCR COURT ERRED IN DENYING DEFENDANT

RELIEF WHERE IT WAS CLEAR PROSECUTOR PRESENTED FALSE AND MISLEADING DNA BLOOD EVIDENCE. THE BLOOD EVIDENCE WAS THE PRINCIPLE [SIC] PIECE OF FORENSIC EVIDENCE LINKING THE DEFENDANT TO THE CRIME.

IV. IMPROPER CONDUCT BY [THE] PCR

JUDGE SUBSTANTIALLY PREJUDICE[D] THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND IMPARTIAL REMAND HEARING.

After review of the record in light of the arguments presented under each of these point headings, we conclude that the claims lack sufficient merit to comment beyond the observation that defendant's complaints about the manner in which the evidentiary hearing was conducted are wholly unsupported by the record. To the contrary, the record demonstrates that Judge Anzaldi diligently and patiently received and thoroughly considered and analyzed the evidence presented. R. 2:11-3(e)(2).

The denial of defendant's application for post-conviction relief is affirmed substantially for the reasons stated by Judge Anzaldi. Although the defendant established a prima facie case on his prior appeal, on remand the substantial credible evidence on the record as a whole did not overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). For that reason, there is no basis for concluding that counsel's allegedly deficient performance "materially contributed to defendant's conviction." Id. at 58.

Affirmed.

 

As noted above, this matter was before the trial court on remand from this court for the limited purpose of conducting an evidentiary hearing on specific claims of deficient performance by trial counsel. Defendant did not file a new or amended petition for post-conviction relief, and his claims about the State's falsification and concealment were not raised below and need not be addressed here. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because there is no support for either claim in this record, we consider and reject them. Defendant's claim of concealment of evidence is based on nothing but supposition and suspicion, and his allegation of falsification of evidence is based solely on the prosecutor's opening argument, not on evidence introduced at trial.

We agree that the prosecutor's opening argument was not proper because the State had no evidence to support the assertion about blood-type evidence. Nonetheless, when that assertion is viewed in the context of this case, which was focused on DNA evidence not blood-type evidence, the argument cannot be deemed capable of "substantially prejudic[ing] the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Roach, 146 N.J. 208, 219 (internal quotations omitted), cert. denied, 519 U.S. 1021, 117 S. Ct 540, 136 L. Ed. 2d 424 (1996). No reasonable juror could have been misled.

(continued)

(continued)

12

A-1132-07T4

December 17, 2008