STATE OF NEW JERSEY v. KEVIN CONLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3829-07T43829-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KEVIN CONLEY,

Defendant-Appellant.

__________________________________

 

Submitted: December 2, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-07-0778.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kevin Conley appeals from the denial of his petition for post-conviction relief (PCR). He is serving a term of life imprisonment with a thirty-year period of parole ineligibility following his conviction of murder, aggravated sexual assault, felony murder, possession of a weapon for an unlawful purpose, and burglary. We affirm.

The charges arise from the murder of an eighty-six year old woman in her home. An autopsy revealed that the victim suffered lacerations, bruises, and contusions to her face, right hand and arm, right ankle, and right inner thigh. She also sustained stab wounds over her left eyebrow, behind her right ear, and on her right forearm and wrist; fractures of her right cheekbone, nasal bones, ribs, teeth and right side of the hyoid bone in the neck, as well as a vaginal tear. The pathologist opined that the cause of death was manual strangulation which, combined with her facial injuries, caused hemorrhage into the back of her throat and a collection of blood in her lungs.

The pathologist also opined that the lacerations, contusions, bruises, stab wounds, and fractures were all sustained before death. The victim was found naked with baby oil on her body. A bottle of baby oil was found on her bedside table; semen was found on her nightgown and bed sheet. These circumstances and the vaginal tear suggested the victim had been sexually assaulted.

The evidence presented by the State relied heavily on forensic evidence, including fingerprint and DNA analyses. A supervisory special agent assigned to the DNA analysis unit of the FBI laboratory testified that the semen stains on the bed sheets were consistent with the DNA obtained from defendant. She further testified that her "visual match" of DNA bands obtained from the bed sheet and defendant's blood DNA were confirmed by computer analysis. She also testified that there was sufficient consistency between the male DNA obtained from the bed sheets and defendant's DNA to conclude, albeit not conclusively, that defendant was a contributor of the semen in the samples. Another expert presented by the State opined that the probability that the DNA band matches found in the FBI analysis would happen randomly was less than one in one thousand and that this estimate was very conservative. Finally, the State presented evidence that a fingerprint on the bottle of baby oil found on the victim's bedside table belonged to defendant.

On direct appeal, defendant argued that the testimony of Dr. Goldman, the second DNA expert presented by the State regarding the probability of a DNA match, was improper because it departed from the opinion provided prior to trial and this deviation caused substantial prejudice to defendant. He couched the objection to the testimony as a discovery violation; yet we noted in our opinion that "the record reveals that defense counsel was well aware that studies existed which might yield a higher estimate of the possibility of a random match." State v. Conley, A-6120-96 (App. Div. Mar. 9, 2000) (slip op. at 10).

On direct appeal, defendant also challenged admission of the fingerprint evidence. Defendant argued that destruction by the FBI of the only life-sized photo of the bottle with the fingerprint compromised his attempt to prove that the fingerprint had been planted on the bottle by someone in an attempt to implicate him. An extensive evidentiary hearing was conducted following which the judge held there was no evidence to support a conclusion that the FBI methodology was faulty. We affirmed noting that there was no evidence of bad faith by the local police, prosecutor's investigators or FBI or that there had been any departure from established forensic protocols. Id. at 21.

On appeal, we also rejected an argument that a report by a juror after return of the verdict required an interview of the juror. We noted that the frightened juror reported no more than that she believed that defendant tried to intimidate jurors and witnesses. Notably, the juror did not report that defendant had succeeded. Id. at 13-14.

In his petition for PCR, defendant focused once again on the forensic evidence presented at trial and argued that trial counsel provided ineffective assistance of counsel by failing to challenge or investigate the probability evidence presented by Dr. Goldman. He also contended that appellate counsel provided ineffective assistance of counsel because he did not investigate, discover and raise the issue of whether a juror should have been excused for cause after she admitted an emotional inability to continue service. He also argued that the prosecutor had withheld evidence, and defendant was unlawfully detained when the State obtained a fingerprint from him. Finally, he contends he "requires and is entitled to" a DNA expert to "present complex scientifically detailed evidence of DNA analyses, protocols, and processes" to demonstrate departure from established protocols.

Judge Triarsi denied the petition. In doing so, the judge noted that defendant provided nothing to controvert the DNA evidence presented at trial and observed that the DNA evidence remained available for examination. He also noted that defendant has never contested that the fingerprint on the baby oil bottle was his and had presented no evidence in his petition to support his contention that it had been "planted." Finally, Judge Triarsi found that the frightened juror issue had been presented and decided adversely to defendant on direct appeal; therefore, Rule 3:22-4 barred further litigation of this issue.

On appeal defendant raises the following arguments:

POINT 1 THE TRIAL COURT ERRED IN NOT FINDING THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO SUCCESSFULLY CHALLENGE THE ADMISSIBILITY OF DNA EVIDENCE.

POINT 2 THE TRIAL COURT ERRED IN NOT FINDING INEFFECTIVE ASSISTANCE BY APPELLATE COUNSEL.

POINT 3 THE TRIAL COURT ERRED IN NOT FINDING PROSECUTORIAL MISCONDUCT PURSUANT TO BRADY V. MARYLAND FOR NOT DISCLOSING DR. GOLDMAN'S RE-ANALYSIS OF STATISTICAL PROBABILITIES.

POINT 4 THE FINGERPRINT EVIDENCE TAKEN FROM AND USED AGAINST THE DEFENDANT WAS THE FRUIT OF AN UNLAWFUL DETENTION.

POINT 5 THE DEFENDANT WAS DENIED THE EFFECTIVE [ASSISTANCE] OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF FOR FAILING TO SUBMIT A REQUEST FOR EXPERT WITNESS FORM TO THE PUBLIC DEFENDER.

POINT 6 THE COURT ERRED IN HOLDING THAT SOME OF DEFENDANT'S CLAIMS WERE PROCEDURALLY BARRED.

POINT 7 THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR RECONSIDERATION.

In a pro se supplemental brief, defendant raises the following arguments:

POINT ONE

THE CONTENTIONS IN THE GROUPING OF PAPERS FILED BY PCR APPELLATE COUNSEL JACK GERBER HAVE NO LEGAL OR FACTUAL MERIT, CONSTITUTE DISLOYALTY, AND VIOLATIONS OF THE RULES OF PROFESSIONAL CONDUCT, AND SHOULD NOT BE DECIDED IN THE INTERESTS OF JUSTICE.

POINT TWO

THE ARGUMENT PRESENTED IN THE APPENDIX TO THE GROUPING OF PAPERS FILED BY PCR APPELLATE COUNSEL, JACK GERBER PRESENTS AN ISSUE OF MERIT THAT SHOULD BE DECIDED IN THE INTERESTS OF JUSTICE.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Here, defendant re-presents virtually the same issues as on direct appeal, except those issues are now presented in the guise of a claim of ineffective assistance of trial and appellate counsel. Although the PCR remedy is the vehicle best-suited to present claims for ineffective assistance of counsel, Preciose, supra, 129 N.J. at 460, such claims must be supported by evidence, not conjecture or speculation, id. at 459-64. As related in this opinion, forensic evidence, specifically DNA and fingerprint analyses, formed a central element of the proofs offered by the State. Defendant has presented nothing to challenge the evidence presented at trial.

Moreover, this record does not support a contention that PCR counsel was ineffective for not having presented new evidence to question the forensic evidence presented at trial. PCR counsel requested access to the forensic evidence and appointment of an expert, but his request to the Office of the Public Defender for an expert witness to support the petition was denied.

Similarly, issues regarding the juror were presented and decided on direct appeal. Defendant has presented no arguments to suggest that counsel's challenge to this juror was constitutionally ineffective. We, therefore, affirm the October 16, 2007 order denying defendant's petition for PCR.

 
Affirmed.

Defendant also challenges the representation provided by PCR appellate counsel. He refers to the brief and appendix submitted by PCR appellate counsel as "the grouping of papers." A review of PCR appellate counsel's papers reveals a simple summary of defendant's claims and reference to previously filed papers. The issues, however, are clearly delineated and the State's full response to each argument and this opinion should reflect that the nature of each argument is understood and able to be addressed, even in the absence of an ideal brief.

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A-3829-07T4

January 8, 2010