Opinion
DOCKET NO. A-2570-11T1
06-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANCIS RICHARD BENNETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 96-03-0371.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Francis Richard Bennett appeals from an August 10, 2011 Law Division order denying his petition for post-conviction DNA testing and a new trial and the subsequent January 5, 2012 order denying his pro se motion seeking reconsideration. Defendant, along with his co-defendants Joel and Jamie Pandure, was convicted by a jury in November 1997, in connection with the murder of his sister-in-law. Following his conviction, defendant filed an appeal, raising more than a dozen arguments seeking to set aside his murder conviction and sentence. We affirmed in an unpublished opinion and the Court denied certification. State v. Bennett, No. A-1279-98 (App. Div. May 24, 2000) (slip op. at 35), certif. denied, 165 N.J. 531 (2000).
Our opinion details the facts of the crimes and the State's evidence presented at trial found to support defendant's guilt beyond a reasonable doubt. Relevant to this matter, we relate the following. In 1991, police gathered physical evidence from the murder scene. Among the items were Marlboro Light and Merit cigarette butts found in a stairwell landing outside the victim's office and a single hair found on the victim's inner pants leg. The hair was not tested, but the cigarette butts were tested for DNA. Defendant and his co-defendants were excluded as contributors to the DNA on the Merit cigarette butt; and the Marlboro Light's test results excluded co-defendants, but was inconclusive as to defendant. During trial, the police discussed the evidence gathered, including the cigarette butts and the inconclusive test results.
Forensic evidence was not the basis of the State's case against defendant. In fact, a police detective testified there was no physical evidence that linked defendant to the crime scene. Rather, the State relied on defendant's incriminating statements to witnesses showing knowledge of the crime scene, his extensive custodial statements to police, and his jail-house confession to a fellow inmate. At trial, defendant testified in his own defense, maintaining the custodial statements were false, made under duress and based on information fed to him by police. However, he admitted, as he had in his custodial statement, that Marlboro Light was a brand of cigarettes he smoked in 1991. In light of this evidence, on appeal, we concluded "the jury disbelieved defendant's tale of coercion and coaching[.]" Ibid.
Defendant's post-conviction motion sought forensic DNA testing, N.J.S.A. 2A:84A-32a(a), of the Marlboro Light cigarette butt and the strand of hair. Defendant maintained testing would "exclude me as the source, and consequently, lending credence to my innocence. In addition, conclusive DNA results will raise serious questions and doubt as to veracity and voluntariness of my statement, a statement which resulted in my conviction." He also moved for a new trial, predicated on the proposition that scientific advances in DNA testing since his trial must be considered. See State v. Halsey, 329 N.J. Super. 553, 559 (App. Div.) ("[A] defendant can seek a new trial if he can now show that recently improved scientific methodology, not available at the time of trial, would probably have changed the result."), certif. denied, 165 N.J. 491 (2000).
The State opposed the motion for DNA testing, arguing it would not yield proof of defendant's innocence and explaining the Marlboro Light cigarette butt had never been returned from the testing laboratory and was determined to have been destroyed.
Judge Jamie S. Perri, after extensive argument, denied defendant's motions in a comprehensive oral opinion. Defendant's subsequently filed motion for reconsideration was also denied.
Judge Perri's opinion detailed the eight statutory predicates outlined in N.J.S.A. 2A:84A-32a(d), which must be demonstrated by a defendant seeking a post-conviction order for DNA testing. She found defendant's proof insufficient to satisfy these requisites, concluding "defendant's conviction was overwhelmingly supported by non-forensic evidence" and the DNA evidence sought "would not be material to the issue of defendant's identity" and participation in the murder. Further, after considering the State's proofs, Judge Perri found "the overwhelming non-forensic evidence" presented at trial "made it reasonably probable that favorable DNA results would not have disproved defendant's guilt." Moreover, no physical evidence conclusively placed defendant at the scene as the presence of the Marlboro Light cigarette butt was merely circumstantial. The State admitted as much at trial and defendant vigorously argued these points. Therefore, possible DNA evidence disclaiming a connection of these items to defendant would not be exculpatory or, as noted by Judge Perri, "would not alter the outcome of the trial."
In denying his motion for a new trial, Judge Perri found defendant had correctly posited recent DNA technology would produce results not obtainable when he was tried; however, he failed to satisfy the second and third prong of the three-part test outlined in State v. Carter, 85 N.J. 300, 314 (1981) (requiring a defendant seeking a new trial based on newly discovered evidence to show the evidence was discovered after trial and not discoverable using reasonable diligence during trial; the evidence was material to the issue of guilt; and it would likely change the verdict), cert. denied, 397 U.S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970).
On appeal from those orders, defendant argues:
POINT I:
THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANT FAILED TO SATISFY SECTION[S] 4 AND 5 OF THE REQUIREMENTS OF N.J.S.A. 2A:84A-32a FOR POST-CONVICTION DNA TESTING.
POINT II:
THE DEFENDANT SATISFIED ALL EIGHT REQUIREMENTS OF N.J.S.A. 2A:84A-32a.
POINT III:
THE COURT SHOULD PERMIT DNA TESTING OF THE CLOTHES AND THE HAIR.
We have considered the arguments advanced on appeal, in light of the record and the applicable law. We reject defendant's claims of error. For the reasons identified in her opinion, we concur with Judge Perri's analysis that testing the cigarette butt would not alter defendant's conviction. We agree defendant's conviction hinged on the jury's rejection of his trial testimony recanting his confession as coerced fabrication, and its acceptance of defendant's custodial statements detailing events of the shooting, describing the crime scene, and directing police to the place of purchase and location of the discarded murder weapon. The identity of the Marlboro Light smoker was immaterial to the State's proof of defendant's conduct.
Similarly, we see no benefit resulting from DNA testing of the single hair found on the clothing worn by the victim. Importantly, defendant offers no basis to support his assertions that the testing would cast doubt on his guilt. His argument that the victim likely struggled over her pocketbook so that she "may have succeeded in drawing blood, or tearing[] hair from the perpetrator" amounts to nothing more than speculation. As we noted, the State's witnesses freely admitted there was no physical evidence linking defendant to the murder scene or showing he had had physical contact with the victim before she died. DNA testing of other items would merely reinforce this fact, which was not contested by the State at trial.
We find no basis exists to interfere with Judge Perri's denial of defendant's motions for post-conviction DNA testing and a new trial. Further, the judge correctly denied defendant's motion for reconsideration of those orders.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION