Opinion
DOCKET NO. A-2779-12T1
06-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY G. PERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Waugh.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-11-01493.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Larry G. Person appeals the denial of his petition for post-conviction relief. He contends:
THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO
CONSULT WITH AND/OR NOT HAVING A DNA EXPERT TESTIFY.
Following a mistrial, defendant and Lyle Person, his co-defendant and brother, were tried to a second jury. The jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1a(1); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and conspiracy to commit second-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1. His brother was convicted of nothing other than conspiracy to commit theft.
Defendant was also charged with second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b, but the judgment of conviction does not reflect the disposition of that charge.
On direct appeal, we affirmed defendant's convictions but vacated his sentence and remanded for resentencing. State v. Person, No. A-6456-04 (App. Div. Apr. 16, 2007) (slip op. at 23-24). On remand, the judge merged defendant's convictions for possession of a weapon with an unlawful purpose and conspiracy with his conviction for first-degree robbery and imposed an aggregate sentence of twenty-six years subject to a period of parole ineligibility equivalent to eighty-five percent of the aggregate sentence. N.J.S.A. 2C:43-7.2.
On appeal, defendant raised the following arguments:
POINT I
THE TRIAL COURT IMPROPERLY EXCLUDED DEFENDANT FROM PARTICIPATING IN VOIR DIRE REQUIRING A NEW TRIAL.
POINT II
THE PROSECUTOR ENGAGED IN MISCONDUCT REQUIRING A NEW TRIAL.
POINT III
THE JURY'S VERDICT BELOW IS AGAINST THE WEIGHT OF THE EVIDENCE AND, THEREFORE, THE DEFENDANT IS ENTITLED TO REVERSAL.
POINT IV
THE TRIAL COURT INAPPROPRIATELY SENTENCED THE DEFENDANT REQUIRING REVERSAL AND REMAND TO THE TRIAL COURT.
The crimes were committed in November 2000, and, for that reason, defendant's terms of parole ineligibility were imposed pursuant to the first iteration of the No Early Release Act, N.J.S.A. 2C:43-7.2, as adopted in L. 1997, c. 117, § 2.
We summarize the facts as stated in our opinion on direct appeal. Person, supra, slip op. at 3-4. Maxim Samsonov and Sergei Minion, the victims of the robbery, were working at a Texaco gas station that had a garage and a store when the crimes were committed. While Samsonov was in the store and Minion was outside at the pumps, Lyle Person entered the store, purchased a cigar and requested pornographic magazines. Samsonov went to a side room to retrieve the magazines, and when he returned a second man — under the State's theory of the case, defendant — was standing behind the cash register and removing the money. Defendant wore a black jacket, blue jeans and a black hat "with some holes where the eyes are supposed to be." Samsonov was unable to see the man's face.
Samsonov described the outergarment worn by the man at the cash register as a jacket and others described it as a hooded sweatshirt, but they all identified the same piece of clothing as the garment worn by the perpetrator at the register.
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Defendant told Samsonov not to move, and at that point, Samsonov noticed that the man was holding a gun. Samsonov held the defendant's hands to "prevent him from shooting," but his effort failed, and he was shot once in the shoulder. Minion came into the store, pulled defendant away from Samsonov and threw him to the floor. Defendant and Minion began to struggle and as they did they moved from the store and into the garage. Still in the store, Samsonov heard three gunshots from the garage and later learned that Minion had been shot in the chest and stomach.
After the struggle ended, Samsonov stepped on defendant's hand, removed the gun and threw it away from the area of the fight. The defendant crawled out of the store, without his hat, sweatshirt, and a sneaker. Though he never saw defendant's face, Samsonov could tell that shooter was an African-American with black, braided hair.
The local police and officers of the Burlington County Prosecutor's Office took photographs and secured the items defendant left behind. As a consequence of his injuries, Samsonov was hospitalized for a week or two.
Minion did not testify, but Samsonov did. He was shown photographs of a sweatshirt and hat, which he identified as the ones worn by the man at the register. However, when he was shown the hat the State admitted into evidence as the one worn by the shooter, Samsonov stated that he did not see any eye holes and asked if it was the same hat, which he recalled as being black. The hat produced by the State was brown, and it was found near the sweatshirt.
Given Samsonov's testimony pertinent to the identity of the shooter, the State introduced DNA evidence. Christopher Huber, a forensic scientist employed by the Division of the State Police in its DNA laboratory, testified as the State's expert in DNA testing and analysis. In our prior decision, the panel described his testimony as follows:
Huber . . . opined that "Larry Person [was] identified as ... the major
contributor of the DNA profile found" inside the hat. The sample from the inside of the hat, which matched the control sample taken from defendant, "occurs in approximately 1 in 814 billion of the African American population, 1 in 885 billion in the Caucasian population, and 1 in 3.3 trillion of the Hispanic population." In a "hypothetical world of 814 billion African-Americans," "[w]e expect to see that profile once." Additionally, defendant could not "be excluded as being a partial contributor to the mixed DNA profile found" on the outside of the hat. The number of people who could not be excluded as having contributed that profile were one in 100,000 of the African-American population, one in 68,800 of the Caucasian population, and one in 87,900 of the Hispanic population.
Huber tested the blood stains on the left and right cuff of the sweatshirt and on the sneaker, and excluded defendant from all three stains. Huber also determined that he could not exclude defendant as a contributor to the sample from the inside of the sneaker. Defendant's DNA profile was present on the collar of the sweatshirt; the specimen from the collar "occurs in approximately one in 2,100 of the African-American population, [one] in 882 of the Caucasian population and [one] in 3,850 of the Hispanic population."
[Id. at 7-8.]
In support of his petition for post-conviction relief, which, as previously noted is based on trial counsel's failure to obtain a DNA expert, defendant submitted a report from William M. Shields, Ph.D. Dr. Shields wrote:
I . . . have reviewed the DNA reports dated in 2002 and 2004 associated with your client Larry Person. Based on my training and experience I believe that there are a number of potential problems with this evidence and especially with the conclusions reached by the examiners in this testing. The first problem is the statement in the 4/10/02 report that: "Within a reasonable degree of scientific certainty, Larry Person is identified as the source of the primary DNA profile found at 9 of the 13 loci examined."
There are two major errors in this statement. First there are numerous geneticists and forensic DNA statisticians (myself among them) that believe that source attribution (saying this individual is the donor to a reasonable degree of scientific certainty) is just wrong. First the statement cannot and should not be applied to mixtures ever and they note that specimen 1A reacts as a mixture. It also follows that source attribution should not be applied to partial profiles. A partial profile is one where results are found for fewer than the number of tested loci. In this case they note that the putative match only occurs at 9 of the 13 tested loci. At 2 of the loci an allele foreign to Mr. Person was detected and this makes the statement that he matches ambiguous at best. Finally because relatives are known to be more likely to carry identical alleles a source attribution that ignores relatives is logically flawed. Specimen 1B is a mixture of at least 3 people (indicated by 5 alleles at locus VWA). The statement that Mr. Person cannot be excluded as a partial contributor is incorrect because at two loci alleles that he carried were not found (his 13 at D13 and 11 at D7). If these are absent from the mixture in the evidence then he should be excluded as a contributor. It is certainly the case that DNA from
individuals other than Mr. Person was found in both 1A and 1B and this is not addressed adequately in the report.
The second wave of testing reported on 5/28/04 examined cuttings or swabs from other items including a jacket (8-1 through 8-4) and a sneaker (9-1 and 9-2). Sample 8-1 is determined to be a mixture and the report claims that the "DNA profile of Larry Person (Specimen No. 2) matches the major DNA profile found at 3 of the 13 loci examined." This statement is belied by the results for the rest of the jacket by the subsequent exclusion of Mr. Person from the other samples (8-2, 8-3, and 8-4). The fact that the major donor to these samples carried the same alleles as Mr. Person at many loci means that any matching of alleles between 8-1 and Mr. Person could easily be chance as is indicated by the very large probabilities of a random match associated with this test. Finally, the sample designated 8-1 is listed as being weak with signals that fall below the threshold of detection. This is what occurs with weak or degraded samples that are best described as inconclusive for inclusion purposes. The final samples from the sneaker are also problematic. Against the first sample (9-1) is a mixture and they conclude that Person cannot be excluded from that mixture. They also note that this is a sample with weak signals that "were below the threshold of detection." Many of Person's alleles are not found in the "mixture" (his 13 at D13, his 9 at D16, his 12 at CSF, his 32.2 at D21) and if any one of those is truly missing he would be excluded. The lab did exclude him from Sample 9-2 as would I. I would also conclude that both of these samples are either exclusions or inconclusive with respect to including Mr. Person as a potential contributor.
The law the judge was required to apply is clear. Recently, in State v. Nash, 212 N.J. 518, 540 (2013), the Supreme Court stressed the important role that post-conviction relief (PCR) has in our criminal justice system. PCR provides "a built-in 'safeguard that ensures that a defendant was not unjustly convicted.'" Ibid. (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). "Ultimately, a PCR petition is a defendant's last chance to challenge the 'fairness and reliability of a criminal verdict in our state system.'" Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). "If an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." Ibid.
In order to obtain relief from a conviction based upon ineffective assistance of counsel, a defendant must demonstrate deficient performance and resulting prejudice. In short, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). An evidentiary hearing is needed where the defendant has come forward with facts that would, if believed, make a prima facie showing of both deficient performance and resulting prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992). There is no question that "[a]s a general principle, 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" State v. DiFrisco, 174 N.J. 195, 223 (2002) (quoting State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695))).
In denying defendant's petition for post-conviction relief, the judge did not address Dr. Shield's report in light of those standards at all. Rather, the judge concluded that defendant could not demonstrate a prima facie case of ineffective assistance of counsel, because trial counsel "was able to elicit testimony through cross examination regarding potential weaknesses in the State's DNA expert testimony."
Without an analysis of the relationship between Dr. Shield's report, the expert testimony presented at trial and the "weaknesses" in the State's testimony exposed, the judge was in no position to determine that defendant failed to raise a prima facie case. The judge pointed to only one weakness defense counsel exposed — an admission from Huber that defendant could have left DNA on the hat even if he had worn it years before the incident. But that says nothing pertinent to Dr. Shield's detailed criticisms of the State's analysis, at least nothing apparent to us. In short, the judge did not find the facts necessary to support his conclusion that defendant failed to establish a prima facie case of ineffective assistance of trial counsel.
The judge's inadequate statement of findings and reasons requires reversal of the denial of this petition and a remand. In considering whether defendant established a prima facie case, the judge must evaluate evidence defendant submitted in support of his application. The judge cannot conclude that defendant failed to make that showing by pointing to alternative, and obviously unsuccessful, points defense counsel was able to make without the assistance of a defense expert. At this stage in the proceeding, a judge must review the evidence in the light most favorable to defendant.
The order denying the petition for post-conviction relief is vacated and the matter is remanded for further consideration in conformity with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION