Opinion
DOCKET NO. A-4755-13T4
10-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS ALVES, Defendant-Appellant.
Carlos Alves, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-03250. Carlos Alves, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals the denial of a motion for post-conviction DNA testing. The background on this matter is found in three opinions: State v. Alves, No. A-4355-00 (App. Div. Jan. 23, 2003), certif. denied, 178 N.J. 455 (2004); State v. Alves, No. A-6331-07 (App. Div. April 19, 2010), certif. denied, 203 N.J. 440 (2010); and State v. Alves, No. A-5979-10 (App. Div. July 16, 2012), certif. denied, 213 N.J. 387 (2013). We assume the reader is familiar with the prior cases, and therefore we shall dispense with a redundant recitation of the facts and procedural history. We provide the following just to give some context for our opinion.
On August 14, 1999, the body of Maria Fernando Lobo, defendant's girlfriend, was discovered in a basement apartment in Newark, where defendant and Lobo lived. At that time, Lobo earned a living cleaning homes of her clients. She kept a regular schedule and rarely missed appearing at a client's home in accordance with her schedule. When she did miss work, her clients received advance notice. Lobo missed her appointments on August 12 and August 13, 1999. Her clients did not receive notice.
On August 14, firefighters broke into Lobo's apartment and discovered her body on the sofa. She had on the same clothes she had been wearing on August 11, 1999. An investigation revealed that defendant and Lobo had been together on August 11, 1999. Defendant left for Portugal on August 12, 1999, and was not present when Lobo's body was discovered.
The deputy medical examiner classified Lobo's death as a homicide and opined she died as a result of mechanical strangling. Police interviewed defendant upon his return from Portugal on August 15, 1999. Defendant denied killing Lobo, insisting that he and Lobo stopped at a bakery together on the morning of August 12, 1999 and then each went off to their respective jobs. Defendant claimed that he was in Portugal when Lobo was killed.
At trial, defendant proffered the testimony of a medical examiner who claimed that Lobo could not have died earlier than August 12, 1999. The State's expert opined that Lobo died approximately seventy-two hours before her body was discovered on August 14, 1999 and concluded that Lobo was killed on August 11, 1999.
On January 21, 2001, a jury found defendant guilty of first degree murder, in violation of N.J.S.A. 2C:11-3(a). In March 2001, defendant was sentenced to thirty years imprisonment with thirty years of parole ineligibility. We affirmed defendant's conviction. See State v. Alves, Docket No. A-4355-00 (App. Div. Jan. 23, 2003), certif. denied, 178 N.J. 455 (2004).
Defendant filed a post-conviction relief application, which the trial court denied. We affirmed. See State v. Alves, Docket No. A-6331-07 (App. Div. April 19, 2010), certif. denied, 203 N.J. 440 (2010). Defendant thereafter filed a motion for post-trial discovery, which the trial court also denied on June 17, 2011. On July 16, 2012, we affirmed this denial, but permitted defendant to file a motion for post-trial DNA testing, pursuant to N.J.S.A. 2A:84A-32a, if he met its requirements. See State v. Alves, Docket No. A-5979-10 (App. Div. July 16, 2012), certif. denied, 213 N.J. 387 (2013).
Defendant subsequently filed a motion for DNA testing of Lobo's fingernails. On May 6, 2014, the Law Division denied this motion, explaining that defendant failed to meet the procedural requirements of N.J.S.A. 2A:84A-32a. The court further stated that defendant had previously argued at trial that his DNA would not be found under the fingernails of the victim, and yet, the jury still returned a guilty verdict. The court reasoned that DNA testing, therefore, would not affect the previous jury verdict, adding that defendant failed to articulate how DNA testing would exculpate him.
This appeal followed. Defendant raises the following issues on appeal:
I. THE STANDARDS OF N.J.S.A. 2A:84A-32a HAVE BEEN MET BOTH PROCEDURALY [SIC] AND SUBSTANTIVELY IN MOTION FOR DAN [SIC] TESTING;
II. DEFENDANT'S MOTION PROVIDES SUBSTANTIAL SUPPORT FOR ALL ARGUMENTS FOR THE MERITS OF DNA TESTING;
III. DEFENDANT SHOWED HOW A DNA PROFILE NOT CONSISTENT WITH HIS OR THAT OF THE VICTIM WOULD PRESENT A REASONABLE PROBABILITY OF DEFENDANT'S INNOCENCE;
IV. THE DNA TEST RESULTS WOULD BE DEFINITIVE EVIDENTIAL PROOF AND NOT SIMPLY CUMULATIVE AS CLAIMED BY THE SUPERIOR COURT;
V. THE COURT SUMMARIZES THE STATE'S EVIDENCE BUT NOT THE DEFENDANT'S WHO DOES MEET THE REQUIREMENTS OF N.J.S.A. 2A:84A-32a(a)(1)(b).
We review the Law Division's findings and conclusions employing the same standard we use in reviewing motions for a new trial. Such motions are "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 has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). A trial court's ruling on a petition for DNA testing pursuant to N.J.S.A 2A:84A-32a entails an exercise of the court's judgment and discretion, and is thus entitled to our deference. State v. Armour, 446 N.J. Super. 295, 306, n. 4 (App. Div. 2016). We review legal determinations de novo. State v. Reece, 222 N.J. 154, 167 (2015).
Guided by these principles, and having considered the parties' arguments in light of the record and the law, we reverse the Law Division's order and we remand for a hearing pursuant to N.J.S.A. 2A:84A-32a(b).
A motion for DNA testing requires the moving party to comply with N.J.S.A. 2A:84A-32a(a)(1):
(1) The motion shall be verified by the eligible person under penalty of perjury and shall do all of the following:If the movant satisfies the above requirements, the court may then grant the motion, after conducting a hearing, if all components of N.J.S.A. 2A:84A-32a(d) are established:
(a) explain why the identity of the defendant was a significant issue in the case;
(b) explain in light of all the evidence, how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted;
(c) explain whether DNA testing was done at any prior time, whether the defendant objected to providing a biological sample for DNA testing, and whether the defendant objected to the admissibility of DNA testing evidence at trial. If evidence was subjected to DNA or other forensic testing previously by either the prosecution or the defense, the court shall order the prosecution or defense to provide all parties and the court with access to the laboratory reports, underlying data and laboratory notes prepared in connection with the DNA testing;
(d) make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought; and
(e) include consent to provide a biological sample for DNA testing.
(1) [T]he 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 eligible person has made a prima facie showing that the evidence sought to be tested is material to the issue of the eligible person's identity as the offender;
(5) 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. 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 applies broadly to any person convicted of a crime who is currently serving a term of imprisonment. State v. Peterson, 364 N.J. Super. 387, 394 (App. Div. 2003). A trial court, in its discretion, may order a hearing on a motion filed pursuant to N.J.S.A. 2A:84A-32a(b). However, "[a] defendant cannot compel the State to release the evidence for DNA testing where the evidence at trial was overwhelming and the defendant did not present a defense or alibi that would be consistent with the explanation the DNA results might supply." State v. Reldan, 373 N.J. Super. 396, 402-03 (App. Div. 2004) (citations omitted).
Here, the motion judge determined that defendant failed to meet the procedural and substantive requirements established by the statute, and concluded defendant failed to show that the DNA testing is material to the issue of his identity as the offender and that a motion for a new trial would be granted if the DNA testing showed that a third-party's DNA was under the victim's fingernails. See N.J.S.A. 2A:84A-32a(a)(1)(b); N.J.S.A. 2A:84A-32(a)(d)(4)-(5). The judge further opined that defendant's argument for DNA testing, to show the presence of a third party, was of no moment since defendant already raised at trial the absence of his DNA at the crime scene. The judge made these determinations on the papers, without a hearing. We disagree with the conclusions of the Law Division and we remand for a hearing.
That defendant previously raised the argument that his DNA was not discovered beneath the fingernails of the victim is, in our view, a factor that should be considered in granting the motion for DNA testing. See Reldan, supra, 373 N.J. Super. at 403. While the jury nonetheless returned a guilty verdict, it is clear that the presence of DNA from a third party beneath the victim's nails would be significantly exculpatory, bolstering defendant's claim that he did not murder Lobo.
In addition, the Law Division erred in not holding a hearing to address these issues. The State concedes that defendant met all requirements of N.J.S.A. 2A:84A-32a(a)(1), except for subsection (b). As we have stated earlier, however, defendant has explained how the results of a DNA testing, if favorable, would provide grounds for a new trial. N.J.S.A. 2A:84A-32a(a)(1)(b).
In addition, the record is not clear as to the condition of the evidence which defendant wants to have DNA tested. The State claims that it "cannot represent to this Court what condition the evidence is in fourteen years after trial." Be that as it may, the record does establish that the evidence — fingernail clippings — was taken from the victim as part of the investigation, and whether such evidence is in a condition to be tested now, must be explored during a hearing.
Our decision is consistent with our previous rulings where we have reversed the denial of motion for DNA testing, finding that the possibility of favorable DNA testing results could alter a jury's verdict. See State v. DeMarco, 387 N.J. Super. 506 (App. Div. 2006); Peterson, supra, 364 N.J. Super. 387 (App. Div. 2003).
In DeMarco, we remanded the matter after the trial judge denied defendant's post-conviction DNA testing motion. Id. at 522. We had initially determined that the record was not clear as to whether any DNA samples from the crime scene still existed and were in a condition to permit the testing. Id. at 510. On appeal, we noted that samples from newly filed DNA profiles of other convicted offenders, as well as potential sperm donors, other than the convicted defendant, when compared with the DNA available from the scene, could support the defendant's innocence. Id. at 521-22.
In Peterson, we reversed and remanded the matter to the Law Division after determining that there is a reasonable probability a motion for a new trial would be granted if the DNA results were favorable. Id. at 391. We found that DNA testing could show that the defendant was not the source of the physical evidence presented at trial, which "would raise serious questions concerning the veracity of the trial testimony ... which was a crucial part of the State's proofs." Id. at 398.
Here, defendant is in the same situation. DNA testing could show the presence of a third party, which would undoubtedly affect the veracity of the State's proofs. The State argues that this case is similar to Reldan, supra, and that the proofs adduced at trial were "overwhelming" of defendant's guilt. We disagree with the State's analogy of this case to Reldan. The State's proofs there were far superior to the proofs in this case, which had no physical evidence connecting defendant to the scene of the crime. See Reldan, 373 N.J. Super. at 404.
Finally, we note that our decision today does not mandate that the trial court grant defendant's motion for DNA testing or, if applicable, grant a future motion for a new trial. Rather, we simply hold that defendant has met the requirements of N.J.S.A. 2A:84A-32a(a)(1), and thus this motion warrants a hearing pursuant to N.J.S.A. 2A:84A-32a(b), wherein the trial court shall determine whether the requirements of N.J.S.A. 2A:84A-32a(d) are met.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION