Opinion
DOCKET NO. A-3788-11T2
07-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ISAAC LENIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney (Michael Confusione, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney (Tzvi Dolinger, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-02-0179.
Joseph E. Krakora, Public Defender, attorney (Michael Confusione, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney (Tzvi Dolinger, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Isaac Lenin appeals from the December 10, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In 1997, two separate juries were unable to reach a verdict on murder and related charges for which defendant had been indicted. In 2002, after new evidence was received from a confidential informant, defendant was re-indicted on charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b). This time, a jury returned a verdict of guilty on all three offenses. In June 2004, defendant was sentenced to an aggregate thirty-year term of imprisonment, with a thirty-year term of parole ineligibility.
On April 7, 2009, we affirmed defendant's conviction and sentence. State v. Lenin, 406 N.J. Super. 361 (App. Div. 2009). On appeal, defendant argued, among other things, that the prosecutor's improper remarks in opening and summation denied him a fair trial. We disagreed, and found that none of the complained of remarks deprived defendant of a fair trial. Defendant's petition for certification was denied by the Supreme Court on October 26, 2009. State v. Lenin, 200 N.J. 477 (2009).
On June 28, 2009, defendant filed a motion requesting post-conviction DNA testing pursuant to N.J.S.A. 2A:84A-32a. Defendant alleged that a DNA test of blood found on the murder weapon and doorknob at the crime scene could possibly "exclude" defendant as the perpetrator.
On February 10, 2010, while his DNA motion was pending, defendant filed his petition for PCR alleging his trial counsel was ineffective in that counsel failed to conduct a sufficient pre-trial investigation of the State's witnesses and possible defense witnesses; failed to secure an updated and independent DNA test before his third trial; and failed to object to alleged improper statements made during the prosecutor's opening and closing.
After hearing oral argument on December 2, 2010, the PCR judge denied defendant's petition and declined to conduct an evidentiary hearing. The PCR judge found that based on the standards articulated in Strickland v. Washington 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz 105 N.J. 42, 52 (1987) defendant's trial counsel's performance was not deficient. He found that trial counsel's failure to seek an updated, independent, DNA test, was not ineffective, that defendant's trial counsel conducted an adequate pre-trial investigation, and that there was no prosecutorial misconduct. The PCR judge issued a corresponding order on December 10, 2010, denying defendant's petition for PCR, and further dismissing his request for DNA testing, without prejudice.
This appeal followed.
II.
We briefly set forth the facts recited in our earlier opinion:
At around 10:30 a.m. on Monday, April 24, 1995, Deborah Fowler was found dead in the basement of a vacant home at 343 Townsend Street in New Brunswick, where defendant occasionally slept on a mattress. Her face was bloody and battered so badly that the police officers could not even determine the victim's gender. The blood was still wet in places, including where it had splashed on the wall behind her head.
It was later determined that the victim suffered a broken jaw and nose and numerous blunt force injuries to the head, face and neck. She had also been manually strangled. The blunt force trauma injuries were consistent with a ball peen hammer, discovered later that afternoon with human blood on it in the backyard of an abutting property, inasmuch as its semi-circular shape matched the curved lacerations on Fowler's face. Cause of death was a combination of manual strangulation and blunt force trauma. It was believed the homicide took place where the victim was found, because blood on her body showed gravitational draining. Time of death was estimated to be thirty-six to forty-eight hours before discovery of the body. The autopsy also revealed high levels of alcohol, cocaine and morphine in the victim's system, ingested no more than four hours before her death. Fowler did not display any defensive wounds.
In the days preceding her death, Fowler was seen in the vicinity of 343 Townsend Street, in the company of defendant, who worked construction. On Friday evening, April 1, 1995, Ernest Wilson, a fellow construction worker, accompanied defendant and Fowler to his girlfriend's apartment where the four ingested cocaine and drank beer. When, thereafter, Wilson refused to allow defendant to use the bathroom to have sex with Fowler, defendant complained, "If she don't give me none, I'm going to take it." Out of defendant's hearing, Fowler told Wilson's girlfriend, Tracy Lyles, that she was going to get defendant's money and that "he wants some but I'm not going to give him none." Defendant and Fowler left the apartment around 10:00 p.m., at Lyles' request. Lyles recalled defendant wearing a tool belt that night with a ball peen hammer, which, according to Wilson, defendant also carried in his belt at work.
Sometime in April 1995, Israel Lopez saw defendant bring a mattress into 343 Townsend Street, and, late one Friday night in April, observed defendant with a "dark-skinned lady" whom he later identified as Fowler from a photograph. On Friday, April 21, at about 10:30 p.m., Luis Dastas, who lived across the street from 342 Townsend, saw defendant go into the house with a black woman.
Michael Rodriguez, a sixteen-year old drug dealer who worked the French/Townsend Street area, knew Fowler for many years and described her "like an aunt." On Saturday, April 22, at around 6:30 p.m., he sold her a $ 20 bag of cocaine on Townsend Street, after which she walked down the street toward the railroad bridge. Rodriguez next saw Fowler at 8:30 p.m., coming from the same direction with defendant. She bought another $ 20 bag of cocaine while defendant stood a few feet away. At 10:30 p.m., he
sold her a third $ 20 bag of cocaine, but defendant was not with her at the time.
Earlier that day, Eddie Warren saw defendant near a liquor store, carrying a ball peen hammer on a belt. Later that evening, around 8:00 p.m., Warren was on his way to see his girlfriend when he saw Fowler and defendant near the railroad tracks. Fowler asked Warren for a cigarette, but defendant remained under the railroad bridge, about eight or nine feet from the two.
Not long afterwards, according to the medical examiner's estimated time of death, defendant, by his own admission years later, struck Fowler repeatedly with a hammer, because she pushed him in the face and tried to take his wallet. Although, at the time, he denied any involvement in the homicide or even knowing the victim, defendant was actually the first to report finding the dead body. On the Monday following Fowler's death, April 24, 1995, at about 9:00 a.m., defendant walked into a neighborhood liquor store, reported that he had just discovered the body of a dead woman when he entered the house at 343 Townsend Street to use a bathroom, and asked someone to call the police. An elderly man volunteered, using a pay phone at a nearby bakery, and the police responded.
Later that afternoon, New Brunswick police interviewed defendant, who repeated his account of discovering the body when he entered the house to use a bathroom, but emphatically denied ever having been in the house before. The house was indeed abandoned with no working plumbing. However, just a few days earlier, in applying for financial assistance from the City of New Brunswick, defendant reported to a social worker that he lived in an abandoned house on Townsend Street.
Months later, on August 23, 1995, after discovering discrepancies in the statements of defendant and other witnesses, Sergeant Ronald Kushner and Orlando Roman from the Middlesex County Prosecutor's Office interviewed defendant. He denied knowing Fowler and, again, denied being inside 343 Townsend Street before April 24. Roman then confronted defendant with information (from witnesses Ernest Wilson and Tracy Lyles) placing him with Fowler on the evening of the homicide or the night before, buying her cigarettes and trying to have sexual relations with her. Defendant denied these reports, but eventually admitted seeing Fowler at Lyles' house, but insisting she remained behind after he left. When asked the location of his other hammer, defendant denied having one. Defendant was arrested that same day for Fowler's murder.
The investigation remained open even after two juries in 1997 could not reach a verdict. Years later, on December 5, 2001, Kushner received a call from Detective Michael McHale of the Sarasota, Florida Police Department, who reported that one of his confidential informants, Pedro Dominguez, had information about the Fowler murder from defendant, when the two were together at the county jail. Specifically, defendant had told Dominguez in Spanish that "[defendant] had killed a girl here on Townsend [Street] in [New] Brunswick, that he had hit her on the head with a hammer in the forehead." Defendant also told Dominguez that he had discarded the hammer, but that police officers had found it, and that the site of the murder was a vacant house. Finally, defendant told Dominguez that he had entered a store to report a dead woman, that somebody telephoned the police department, and that police officers answered the call.
As a result, Kushner and another investigator traveled to Florida on January 21, 2002, to meet McHale and Dominguez, a Cuban national who, at the time, was in federal custody awaiting deportation proceedings. After the officers interviewed Dominguez, arrangements were made to transfer Dominguez to the state prison where defendant was incarcerated. Once the two men were reunited, Dominguez was fitted with an electronic transmitter, in the hope of capturing incriminating information on tape. Eventually, their conversations generated hours of dialogue including one in which defendant disclosed how he murdered Fowler. Specifically, defendant related that Fowler took his wallet and would not return it, so "Man, I let her have it. I let her have it and you know how it happened." Defendant continued, "She was found dead. I don't even want to tell the story."
[Lenin, supra, 406 N.J. Super. at 367-71 (footnotes omitted).]
III.
On appeal, defendant raises the following arguments for our consideration:
I. THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.Having considered these arguments in light of the record and the applicable law, we affirm.
A. Defendant's Petition Is Not Time Barred.
B. Defendant Established At Least Prima Facie Evidence Of Ineffective Assistance Of Counsel.
C. Defendant Is Entitled To DNA Testing.
D. At The Very Least, Defendant's Claims Warranted An Evidentiary Hearing In The Court Below.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). 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).
The mere raising of a claim for PCR does not entitle the 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 only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.
With these standards in mind, we review defendant's contentions. First, defendant simply alleges that defense counsel failed to perform a sufficient pre-trial investigation of the State's witnesses, and failed to investigate possible defense witnesses. This unsupported assertion is unpersuasive. When claiming trial counsel inadequately investigated his or her case, the petitioner "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have likely changed the outcome of the trial.
From our review of the record, defendant has failed to meet that burden here. Defendant failed to demonstrate that impeachment evidence existed that would have had the likelihood of successfully discrediting the State's witnesses, or that there were defense witnesses who would have supported defendant's case. Accordingly, defendant failed to establish a prima facie case, warranting an evidentiary hearing on this basis.
Next, defendant's claim that counsel failed to secure DNA testing of blood on the murder weapon and on a doorknob at the crime scene, is also without merit. Contrary to defendant's contention, the existence of blood on the weapon and at the crime scene was not a significant part of the State's case. The State's expert testified that these items were positive for blood, and there was no direct forensic link with defendant. More significant was the overwhelming circumstantial evidence and testimony of a witness to whom defendant confessed his commission of the crime.
Finally, defendant's argument that trial counsel should have objected to the prosecutor's comments is also without merit in that we already held that the comments did not deprive defendant of a fair trial. Based on the foregoing, we are persuaded that defendant has failed to satisfy either the performance or prejudice prongs of the Strickland test.
Lastly, defendant does not meet the criteria of N.J.S.A. 2A:84A-32a. Defendant merely raises the inchoate "hope" that DNA testing of the murder weapon and doorknob could "exclude" him as the perpetrator. Such a claim, however, will not support a statutory right to DNA testing.
The statute governing DNA testing, N.J.S.A. 2A:84A-32a, was approved on January 8, 2002, and was to take effect on the 180th day after enactment. L. 2001, c. 377, § 4. It imposes both procedural and substantive requirements upon a defendant who seeks to have DNA testing conducted after he has been convicted of a crime. The procedural requirements are as follows:
a. Any person who was convicted of a crime and is currently serving a term of imprisonment may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.
(1) The motion shall be verified by the convicted person under penalty of perjury and shall do all of the following:
(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.
[N.J.S.A. 2A:84A-32a(a)(1)].
N.J.S.A. 2A:84A-32a(a)(2) and (b) set forth notice requirements and address the hearing on a motion for DNA testing.
N.J.S.A. 2A:84A-32a(d)(1) to (8) lists the substantive requirements a defendant must meet to compel DNA testing:
(d) The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that all of the following have been established:
(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 result would raise a reasonable probability that if the result were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion my 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.
Given the language of the statute, it is clearly defendant's burden to establish that "all" the elements necessary for DNA testing have been fulfilled. See State v. Peterson, 364 N.J. Super. 387, 392-93 (App. Div. 2003) ("The . . . statute providing for post-conviction DNA testing of evidence sets forth eight conditions a convicted person must establish to be entitled to such testing [.]")
Here, defendant did not meet the requirements of the statute. First, defendant failed to demonstrate that after seventeen years the evidence was subject to a proper chain of custody, or that it is available in a condition that would allow DNA testing. Furthermore, defendant has not established a reasonable probability that if the results of the testing were favorable he would be granted a new trial. In this case, the confidential informant's testimony coupled with eyewitnesses' testimony provided ample support to convict defendant. The forensic circumstantial evidence showed that defendant initially lied to the police about even knowing the victim and thereafter admitted knowledge of the victim. Consequently, DNA results not showing defendant's blood on the scene would not likely change the jury's verdict.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION