State v. Peterson

• Decision Date: 10 December 2003
• Citation: 836 A.2d 821,364 N.J. Super. 387
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Larry L. PETERSON, Defendant-Appellant.
• Court: New Jersey Superior Court

836 A.2d 821

364 N.J. Super. 387

STATE of New Jersey, Plaintiff-Respondent, v. Larry L. PETERSON, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued September 23, 2003.

Decided December 10, 2003.

Vanessa Potkin of the New York bar, admitted pro hac vice, argued the cause for appellant (Rutgers University Law School Urban Legal Clinic, attorneys; Ms. Potkin and Marcia Levy, Newark, on the brief).

Kristen M. Harberg, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Ms. Harberg, of counsel and on the brief). Before Judges SKILLMAN, COBURN and WELLS.

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

In 2002, the Legislature enacted a statute which provides that a person convicted of a crime who is currently serving a term of imprisonment may obtain DNA testing of evidence probative of guilt or innocence. L. 2001, c. 377; N.J.S.A. 2A:84A-32a. This appeal requires us to interpret two of the conditions a convicted person must establish to obtain such DNA testing—that "the identity of the defendant was a significant issue in the case," N.J.S.A. 2A:84A-32a(d)(3), and that "the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted," N.J.S.A. 2A:84A-32a(d)(5).

In March 1989, a jury found defendant guilty of felony murder, in violation of N.J.S.A. 2C:11-3a(3), and four counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3) and (6). The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for felony murder, and a consecutive twenty-year term, with ten years of parole ineligibility, for one count of aggravated sexual assault. The court merged defendant's other convictions.

We affirmed defendant's convictions and sentence in an unreported opinion, State v. Peterson, A-3034-89T4 (Nov. 30, 1992), and the Supreme Court denied his petition for certification, 133 N.J. 433, 627 A.2d 1139 (1993).

In September 1994, defendant filed a petition for post-conviction relief which sought, among other things, an order for DNA testing of evidence the State had introduced at trial. The trial court denied defendant's petition. We affirmed that denial in an unreported opinion, State v. Peterson, A-1072-98T4 (Nov. 13, 2000), and the Supreme Court again denied certification, 167 N.J. 634, 772 A.2d 935 (2001).

In November 2001, defendant brought an action in federal district court under the Civil Rights Act (42 U.S.C.A. § 1983) seeking DNA testing of evidence introduced at his trial. On June 28, 2002, the district court temporarily stayed proceedings pending defendant's application for relief under N.J.S.A. 2A:84-32a in state court.

Defendant then filed a motion in the trial court to obtain DNA testing of the evidence found at the crime scene that had been introduced at trial. After hearing argument by counsel, the trial court concluded that defendant had not established all the conditions for post-conviction DNA testing prescribed by N.J.S.A. 2A:84A-32a, specifically the requirements that identity must have been a "significant issue" at trial, N.J.S.A. 2A:84A-32a(d)(3), and that if the DNA test results were "favorable" to defendant, there would be a "reasonable probability" a motion for new trial would be granted, N.J.S.A. 2A:84A-32a(d)(5). Accordingly, the court entered an order denying defendant's motion, from which this appeal has been taken.

We conclude that identity was a significant issue at defendant's trial and that there is a reasonable probability a motion for new trial would be granted if the results of DNA testing were favorable. Therefore, we reverse the order denying DNA testing and remand to the trial court.

The murder and aggravated sexual assaults for which defendant stands convicted were committed sometime in the early morning hours of August 24, 1987. The victim's body, which was partially nude, was found later that day in a field near an apartment complex in Pemberton Township. An eight-inch-long stick, which had been inserted in the right side of the victim's mouth, protruded through her throat to form a bulge in the back of her neck. Another two-inch-long stick was discovered broken off inside the victim's vagina. The police also found sticks near the body which had strands of the victim's hair attached to them. In addition, the police found blood under the victim's fingernails, semen on the outside of her pants and various hair samples on her body.

After a lengthy investigation, the State charged defendant with the crime. At trial, the State presented strong evidence of defendant's guilt. This evidence included testimony by three persons with whom defendant allegedly rode to work the morning of the murder, who said that defendant described the crime to them in lurid detail only a few hours after it was committed, before the police had released any detailed information to the public. The State also presented the testimony of an inmate in the jail where defendant was incarcerated before trial, to whom defendant allegedly made statements admitting he had committed the crime. In addition, the State presented evidence that shortly after the murder, defendant had fresh scratch marks on his arm that looked like fingernail marks, that he asked several persons for money so he could travel to Germany, and that he threatened several potential witnesses.

Most pertinent to the issue presented by this appeal, the State presented the testimony of Gail Tighe, a senior forensic scientist in the State Police laboratory, who expressed the opinion that seven hairs found at the crime scene had the same characteristics as defendant's hair. Three of those hairs were discovered in the victim's pubic combings, one in the victim's body bag and three on a stick found forty-feet from the body. This stick also had four hairs attached to it that had the same characteristics as the victim's hair. The State did not present any evidence concerning the source of the semen on the victim's pants or the blood under her fingernails. No DNA testing was performed on any of the physical evidence presented at trial.

The operative subsection of the recently enacted statute providing for post-conviction DNA testing of evidence sets forth eight conditions a convicted person must establish to be entitled to such testing:

(1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;

(2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;

(3) the identity of the defendant was a significant issue in the case;

(4) the convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the offender;

(5) the requested DNA testing would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial;

(6) the evidence sought to be tested meets either of the following conditions:

(a) it was not tested previously;

(b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;

(7) the testing requested employs a method generally accepted within the relevant scientific community; and

(8) the motion is not made solely for the purpose of delay.

[N.J.S.A. 2A:84A-32a(d).]¹

In State v. Hogue, 175 N.J. 578, 585, 818 A.2d 325, 329 (2003), the Court noted that N.J.S.A. 2A:84A-32a has "broad application" to any person convicted of a crime who is currently serving a term of imprisonment. However, the sole issue in Hogue was whether a convicted person must wait until the end of the direct appeal process before seeking DNA testing by a petition for post-conviction relief, which the Court held was not required. Consequently, the Court in Hogue did not have occasion to consider the conditions for post-conviction DNA testing set forth in N.J.S.A. 2A:84A-32a(d), and there is no other reported opinion dealing with those conditions.

The State does not dispute that defendant established the conditions for post-conviction DNA testing set forth in N.J.S.A. 2A:84-32a(d)(1), (2), (4), (6), (7) and (8). However, the State successfully opposed DNA testing of the physical evidence introduced at defendant's trial on the ground that he failed to make the showings required by N.J.S.A. 2A:84A-32a(d)(3) and (5)—that identity was a "significant issue" and that there is a "reasonable probability" a motion for new trial would be granted if the results of the DNA testing were "favorable."

We first consider whether identity was a "significant issue" at the trial. In concluding that defendant failed to make this showing, the trial court stated:

[T]his is not [a] case where a witness makes a stranger to stranger identification, often through a photo array or a in-person line up.

....

... I think the reason that that's in the statute is because lawyers have become extremely conscious about identification testimony when it's a stranger to stranger identification. It seems to be an area where risk of erroneous identification is high. So, I find that ... the identity issue is not present as far as the statute is concerned.

We perceive no basis in the language of N.J.S.A. 2A:84A-32a(d)(3) or the policy of N.J.S.A. 2A:84A-32a to confine post-conviction DNA testing to cases in which a conviction rests primarily upon eyewitness identification evidence. This subsection only...