STATE OF NEW JERSEY v. LAWRENCE BELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4895-05T44895-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

LAWRENCE BELL,

Defendant-Appellant.

__________________________________

 

Submitted: October 15, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-05-1163.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the briefs).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lawrence Bell appeals from the denial of his second petition for post-conviction relief (PCR) and his motion for a new trial. He is serving an aggregate term of life imprisonment plus fifty years with a fifty-five year period of parole ineligibility following his conviction of murder, felony murder, kidnapping, conspiracy, robbery, possession of a weapon for an unlawful purpose, unlawful possession of a weapon, hindering apprehension, and sexual assault.

This court affirmed defendant's conviction and sentence. State v. Bell, No. A-1632-92 (App. Div. Mar. 7, 1996) (slip op. at 18). The Supreme Court denied certification. 145 N.J. 371 (1996). We affirmed the denial of defendant's first petition for PCR, No. A-2328-99 (App. Div. Jan. 24, 2002) (slip op. at 10).

As related in our earlier opinions, the charges arise from the kidnapping, sexual assault and murder of a young woman and the kidnapping of her four year old son. Defendant was fourteen at the time of the offenses.

On appeal defendant raises the following arguments:

POINT ONE

THE PARENT OR LEGAL GUARDIAN OF A JUVENILE JUST OVER THE AGE OF 14 YEARS WHO DOES NOT HAVE A CRIMINAL RECORD SHOULD BE PRESENT DURING A CUSTODIAL INTERROGATION IF POSSIBLE REGARDLESS OF THE CHILD'S DESIRES.

POINT TWO

THE PCR COURT ERRED BY FAILING TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE DEFENDANT'S PRIOR COUNSEL PROVIDED THE DEFENDANT WITH CONSTITUTIONALLY INEFFECTIVE ASSISTANCE WHERE NEITHER OF HIS PCR COUNSEL ATTEMPTED TO LOCATE HIS LEGAL GUARDIAN NOR RAISED THE ISSUE REGARDING THE VOLUNTARINESS OF HIS CONFESSION.

POINT THREE

THE TIME BAR SHOULD BE RELAXED IN SPITE OF THE LENGTHY PASSAGE WHERE THE CONSTITUTIONAL ISSUE RAISED FOR THE FIRST TIME IS WEIGHTY AND WAS NOT INTENTIONALLY DELAYED BY THE DEFENDANT.

POINT FOUR

N.J.R. 3:22-4 IS BARELY EMPLOYED TO BAR SIGNIFICANT CONSTITUTIONAL[] ISSUES.

POINT FIVE

THIS MATTER SHOULD BE STAYED PENDING THE RESOLUTION OF THE PCR COURT'S HEARING ON THE DNA TEST RESULTS.

In a supplemental brief, defendant raises the following arguments:

POINT ONE

THE VOLUNTARINESS OF THE DEFENDANT'S CONFESSION IS EFFECTIVELY CHALLENGED BY THE PROPOSED TESTIMONY OF THE DEFENDANT'S LEGAL GUARDIAN AND STEPMOTHER, WHO PROFFERED THAT SHE WAS DENIED ACCESS TO THE 14-YEAR OLD ACCUSED DURING HIS CUSTODIAL INTERROGATION.

POINT TWO

THE STATE RELIED ON MISLEADING OR MISTAKEN PHYSICAL EVIDENCE TO CONVICT THE DEFENDANT.

The focus of this appeal is two fold: the denial of defendant's motion for a new trial following DNA testing and denial of his second petition for PCR. We address the denial of the motion for a new trial first.

Defendant contends that he should have been granted a new trial based upon the 2007 DNA test results excluding him as a contributor of the semen found in the victim's vagina. Additionally, he claims that the murder and sexual assault charges should be vacated because of the DNA results.

The State counters there are still insufficient grounds for a new trial even though the results exclude defendant as a contributor of the semen sample. The State argues that defendant's statements, in which he described how he grabbed the victim, were consistent with the bruises found on the victim's body during the autopsy. The State further contends fiber evidence incriminates defendant, and asserts that those two pieces of evidence, combined with defendant's statement, are not inconsistent with the DNA results and renders it unlikely that the new DNA results would have elicited a different result at trial.

The judge found that defendant stated in his confession that he penetrated the victim and the DNA results do not refute that statement. The judge explains that the crime of sexual assault is complete on penetration; ejaculation is not an element, and, therefore, the lack of semen does not exonerate defendant of sexual assault. He also found that the fiber evidence and the bruising on the victim's body were consistent with defendant's confession and made it likely that a jury would still find defendant guilty. Therefore, there was no basis for a new trial.

Rule 3:20-1 governs motions for a new trial. It provides that

[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

In State v. Carter, 85 N.J. 300, 314 (1981), the Supreme Court established the standard for a new trial based on newly discovered evidence:

[T]he 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.

In State v. Ways, 180 N.J. 171, 188 (2004), the Supreme Court articulated the meaning of "material" evidence under the Carter test. In a criminal case, "[m]aterial evidence is any evidence that would `have some bearing on the claims being advanced[]'" by the defense. Ibid. (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)). Any evidence tending to support a defense clearly constitutes "material" evidence, including third-party guilt or a general denial of guilt because it "relates directly to the focal issue at trial." Ibid.

Here, defendant uttered two contradictory accounts of the crime for which he is charged. In his confession, he stated he assisted in removing the victim from the car and held her down while co-defendant Jones raped her. He also stated that he penetrated the victim for two or three minutes, but did not ejaculate. During his trial testimony, defendant testified that he never left the car. He testified that he never penetrated the victim, and he did not participate in the crime beyond the point of kidnapping the victim and her son.

In considering defendant's motion for a new trial, the judge engaged in a thorough fact analysis. He considered the State's expert testimony regarding the semen evidence at the original trial and expressed concern over the misleading nature of the expert's conclusions. He noted that at trial, the State's expert asserted that defendant could not be excluded as a semen contributor merely because he was a male who could ejaculate. The judge observed this testimony could have been misleading to the jury, especially because the State relied heavily in its closing on the lack of exclusion of defendant as a contributor of the semen sample. After considering all of the evidence, however, the judge found that even if the newly obtained DNA evidence were presented to the jury, it did not contradict defendant's confession and, in view of all of the other evidence, the jury would still come to the same conclusion.

The newly obtained DNA evidence does not completely refute defendant's confession. It does tend to support his testimony at trial. The fiber evidence admitted at trial incriminated defendant because the evidence placed him at the scene and in contact with the victim. At trial, defendant explained that he came into contact with the victim when he slid over her in the car. Thus, there is a reasonable explanation as to why fibers from defendant's clothes would be on the victim's clothes and fibers from the victim's clothes would be on defendant's clothes.

On the other hand, the bruise marks on the victim's body corroborate defendant's confession. There was simply no alternative explanation for that correlation.

In light of all of the evidence presented, we agree with the judge's assessment of the likelihood of a different decision based on the 2007 DNA evidence. We, therefore, affirm the May 9, 2008 order denying defendant's motion for a new trial.

Defendant's second petition for PCR was based on the absence of defendant's mother or stepmother from the interrogation following his arrest during which he admitted his participation in the kidnapping, sexual assault and murder of a young mother. Defendant argues that his mother's attendance was required and that she was barred from the interrogation room. He contends he was entitled to an evidentiary hearing to determine the credibility of his stepmother's recently submitted statement and her recollection of the events and their relevance to the voluntariness of his oral and written statements. He further argues that his attorney was ineffective because he did not raise the issue of the stepmother's absence from the interrogation and the voluntariness of defendant's statements.

The State responds that the presence or absence of the stepmother during the interrogation was simply a factor to be considered in any evaluation of the voluntariness of defendant's statements. The State argues that the facts reveal that defendant's stepmother was present, defendant requested her to leave, and she acknowledged in writing his request to absent herself from the interrogation. Finally, the State argues that this contention is time-barred and the new information submitted by defendant's stepmother should be considered as a motion for a new trial rather than as a supplement to his second petition.

On January 17, 2006, the judge denied the second petition. In doing so, the judge adopted the findings of the judge who conducted the April 1992 Miranda hearing. Based on the testimony of a detective and defendant, he found that defendant's stepmother was in the room when Miranda warnings were issued and defendant asked her to leave. She left the room at his request and waited in an area about twenty-five feet away and defendant did not ask her to return. Under the totality of the circumstances, defendant's confession was voluntary.

Defendant filed a notice of appeal, and by order dated December 18, 2006, this court temporarily remanded the matter for a hearing on the issue of DNA testing under N.J.S.A. 2A:84A-32a. We also granted defendant's motion for a temporary remand to the trial court to consider defendant's motion for a new trial based on the results of DNA testing. It was during this remand that defendant submitted a March 4, 2007 letter from Deborah Carter Tobin, his stepmother, and asked the judge to supplement the record.

In this letter, defendant's stepmother relates that she brought defendant to the police station, they entered a room and a detective handcuffed defendant. In her letter, she states she left the room to use the bathroom. When she returned, defendant was in an interview room being questioned. A detective would not let her enter the room. When she protested, she was shown a note from defendant that stated that he did not want her to be with him. When she insisted that she wanted to see defendant, a detective opened the door. She described his skin as "a fire red in color" and that he looked scared. Deborah Carter Tobin did not testify at the April 1992 Miranda hearing.

Treating this letter as a motion for a new trial on the basis of newly discovered evidence, the judge denied that motion. The judge found that the information in the letter was at best contradictory evidence and would not have made a difference in the disposition of the Miranda hearing or the trial.

On appeal, as in the trial court, defendant never clearly states whether he sought to supplement the record of the previously decided second petition for PCR or whether he sought a new trial based on newly discovered evidence. Notably, his amended notice of appeal still makes reference to the January 2006 order denying his second petition for PCR. We elect to consider the letter as a supplement to the record of defendant's second petition for PCR because this letter is directly related to the asserted basis for PCR. In doing so, we remand for an evidentiary hearing but only on the issue of the circumstances of the absence of defendant's stepmother from the interrogation and the impact of her absence on the voluntariness of defendant's statement.

The quality of defense counsel's representation is not considered in a vacuum or by standards or principles in place today. In 1990, a court was required to consider the totality of the circumstances attending the interrogation in its determination of the voluntariness of a statement by a juvenile. In re S.H., 61 N.J. 108, 115 (1972). One of those factors or circumstances was the presence of a parent or guardian during the interrogation. The Court held that a parent or guardian should be present in the interrogation room, whenever possible. Id. at 114-15. This rule was reaffirmed in State v. Presha, 163 N.J. 304, 315 (2000). In doing so, the Court also emphasized that the absence of the parent or guardian should be considered as a highly significant factor among all of the other facts and circumstances in a court's consideration of the voluntary nature of a juvenile's confession. Ibid.

In S.H., the juvenile was ten years old. 61 N.J. at 111. Police sent his father home, and then questioned the juvenile and isolated him in a room with a detective for ninety minutes. Id. at 112-13. The Court held neither the father's presence following the interrogation and confession nor the administration of Miranda warnings to the juvenile of any significance in its analysis of the voluntary nature of his confession. Justice Proctor stated:

Recitation of the Miranda warnings to a boy of 10 even when they are explained is undoubtedly meaningless. Such a boy certainly lacks the capability to fully understand the meaning of his rights. Thus, he cannot make a knowing and intelligent waiver of something he cannot understand.

[Id. at 115.]

Considering the totality of the circumstances, the Court concluded that it could not "say it convincingly appears that his confession was voluntarily made." Id. at 115-16. The Court did not at that time, however, preclude the questioning of a juvenile outside the presence of a parent or guardian, "if the questioning is conducted with the utmost fairness and in accordance with the highest standards of due process and fundamental fairness." Id. at 115.

The presence or absence of a parent or guardian is one of several factors that must be considered in the assessment of the voluntary nature of an inculpatory statement by a juvenile. Although defendant's interrogation could proceed in the absence of his stepmother, police were required to conduct the interrogation "with utmost fairness and in accordance with the highest standards of due process and fundamental fairness." Ibid. If defendant's stepmother was excluded by detectives and defendant was not informed that she was nearby, these circumstances might suggest that the interrogation was not conducted with care and that the juvenile's will was overborne.

Moreover, as supplemented, the record of the facts and circumstances surrounding defendant's stepmother's absence is now disputed. The contradictions created by the stepmother's letter cannot be resolved by simply comparing the facts related in her letter and the transcript of the April 1992 Miranda hearing.

An evidentiary hearing will allow the court and counsel to explore the stepmother's credibility and her lengthy absence from the criminal proceedings, particularly as the efforts of trial, appellate, and PCR counsel to locate her pertain to the effectiveness of their representation. An evidentiary hearing will also be able to explore Deborah Carter Tobin's relationship to defendant.

At the May 27, 2008 hearing, defendant's attorney suggested that the relationship between defendant and Deborah Carter Tobin is not based on blood or a legally bestowed custodial obligation. She may be no more than a neighbor who took him in when his mother died. This may explain why a forensic psychologist retained by defense counsel at defendant's waiver hearing characterized him as an orphan and a very young person living by his wits on the streets with little or no adult supervision or guidance. It may explain why she did not testify at the Miranda hearing or at trial. Answers to the question of the nature of her relationship to defendant may also explain whether her presence or absence would have had any effect on defendant's decision to speak to detectives and to provide oral and written statements.

The evidentiary hearing shall be conducted within sixty days of filing of this opinion. The hearing is limited to the circumstances of the absence of defendant's stepmother from the interrogation room and the impact of her absence on the voluntariness of defendant's confession. Upon completion of the hearing, the judge shall reconsider the disposition of defendant's second petition for PCR.

In summary, we affirm the order denying defendant's motion for a new trial based on the 2007 DNA test results. We reverse the order denying defendant's second petition for PCR and remand for an evidentiary hearing on the circumstances surrounding the absence of defendant's stepmother from the interrogation and the effect of her absence on the voluntariness of his confession.

Affirmed in part; reversed in part and remanded for an evidentiary hearing. We do not retain jurisdiction.

 

She is variously referred to as defendant's mother and stepmother. As noted in this opinion, her relationship to defendant is not clearly defined in this record.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

In State in the Interest of Q.N., 179 N.J. 165 (2004), the Court considered exceptions to the bright-line rule announced in Presha, specifically, a parent's absence from an interrogation at the request of the juvenile. The Court determined that a parent who voluntarily absented herself from an interrogation at the request of her son did not render her son's unrecorded statement inadmissible. Id. at 174. Notably, the parent went to an adjoining room where she could see and hear the interrogation and knew she could return to the room and her son at anytime. Ibid.

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A-4895-05T4

November 17, 2009