The opinion
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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5142-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARNELL STEWART,
Defendant-Appellant.
______________________________
Submitted October 23, 2017 – Decided December 5, 2017
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
05-08-3205.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah R. Terry, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Darnell Stewart appeals from an April 29, 2015
order denying his petition for post-conviction relief ("PCR")
without an evidentiary hearing, and denying his motion for post-
conviction DNA testing. We affirm.
Following a jury trial in June 2006, defendant was convicted
of first degree kidnapping, first degree aggravated sexual
assault, second degree sexual assault, and second degree attempt
to commit sexual assault. Defendant was ultimately sentenced to
an aggregate sixty-year prison term with a sixty-year period of
parole ineligibility.
Defendant's conviction was upheld on direct appeal. 1 State
v. Stewart (Stewart I.), No. A-2745-06 (App. Div. April 29, 2009),
certif. denied, 200 N.J. 475 (2009). We incorporate by reference
the facts and procedural history set forth at length in our prior
opinion. Id., slip op. at 2-10.
I.
The following is a summary of the facts relevant to the
present appeal.
1
We remanded for resentencing, finding the trial court had
improperly imposed two extended terms, contrary to N.J.S.A. 2C:44-
5(a)(2). Because defendant previously had been convicted of sexual
assault, and was serving a special sentence of parole ineligibility
for life at the time he committed the present offense, on remand
the trial court imposed extended terms, without a period of parole
ineligibility pursuant to N.J.S.A. 2C:43-6.4(b). Defendant did
not appeal the revised sentence.
2 A-5142-14T4
On October 23, 2014, at approximately 7:00 a.m., B.S.2 was
physically attacked and sexually assaulted in Camden. B.S.
testified her attacker hit her in the face, grabbed her by the
neck, and forced her to an area under a highway underpass. There,
defendant ordered B.S. to lower her pants and bend over. Her
attacker then rubbed his penis between her buttocks and vagina.
Specifically, B.S. "felt his head going into [her] vagina, but not
all the way, and that's when [she] made an attempt to run."
However, B.S.'s attacker grabbed her, "punched [her] like a
punching bag," and forced her back to the overpass area. This
second time, her attacker ordered B.S. to bend over, and attempted
to enter her, but could not achieve an erection, despite "[r]ubbing
against [her] butt again, trying to get it hard." B.S.'s attacker
stated he should have killed B.S., then left the area.
B.S. screamed for help but no one responded. She went home
and called the police who transported her to the hospital within
one hour of the attack. At the hospital, a forensic examination
was performed. B.S. suffered multiple contusions to her face,
back and chest, including a split eyebrow and split lip. The
Sexual Abuse Nurse Examiner ("SANE"), who examined B.S., testified
B.S. did not sustain any evidence of injury to her vaginal area.
2
We use initials to protect the victim's privacy.
3 A-5142-14T4
Secretions from B.S.'s vagina, cervix, "right scapula, right
buttocks, [and] right calf," were swabbed and collected as part
of the sexual assault examination.
The SANE testified pre-ejaculate serum contains sperm and can
be discharged whether or not a man ejaculates. On cross-
examination, defense counsel attempted to elicit from the SANE
testimony that it is highly unlikely, without ejaculation, fluid
would travel to the cervix. However, the SANE responded:
The penis does not have to be fully entered
into the vagina for serum to get in there.
So, if someone attempted to insert the penis
into the vagina, some pre-ejaculate fluid or
ejaculate could be deposited at the end of the
vagina and could migrate upwards towards the
cervix.
Forensic testing of DNA evidence contained in B.S.'s sexual
assault kit matched defendant's DNA. At trial a State Police
chemist, qualified as an expert in biological stain analysis,
testified that B.S.'s sexual assault kit contained vaginal, anal,
oral, and external genital specimens, head and pubic hair combings,
fingernail specimens, buccal controls swabs, debris and dried
secretions. She tested the vaginal and cervical samples but did
not test all of the specimens because she felt the samples she had
examined were sufficient "to generate a DNA profile." On cross-
examination, trial counsel elicited testimony that B.S.'s cervical
specimen contained more than an average quantity of sperm.
4 A-5142-14T4
Six months after the assault, B.S. identified defendant from
a photo array. She was sixty-percent certain defendant was her
attacker. B.S. identified defendant in court and testified she
had never seen him before the day of the attack. Defendant called
an investigating police officer and defense investigator to
establish inconsistencies between B.S.'s testimony and her prior
statements.
Defendant did not testify at trial. At the pretrial
Sands/Brunson hearing, 3 the State indicated it would seek to
impeach defendant's credibility, if he elected to testify, by
adducing testimony about his multiple prior convictions, including
a second degree offense.4
5
During a pretrial Wade hearing, trial counsel first
suggested B.S. and defendant had engaged in sexual intercourse on
an unspecified "earlier date." Over trial counsel's objection,
the trial court ruled admissibility of defendant's alleged prior
3
State v. Sands, 76 N.J. 127, 141 (1978); State v. Brunson, 132
N.J. 377 (1993).
4
Because defendant's prior second degree conviction was for sexual
assault, the trial court "sanitized" all of his prior convictions.
Brunson, supra, 132 N.J. at 391. As such, the court limited the
State's line of questioning, had defendant testified, to "the date
of the conviction, the sentence imposed, and the degree of the
crime without mentioning the title of the conviction."
5
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
5 A-5142-14T4
sexual relations with B.S. was governed by the Rape Shield Law.
N.J.S.A. 2C:14-7. Notwithstanding lack of notice, the court
afforded defendant the opportunity for a hearing, pursuant to the
statute, but trial counsel responded that his client did not intend
to testify, nor produce any evidence as to this issue. Rather,
trial counsel intended to cross-examine the victim and argue his
theory to the jury. In response to the court's inquiry as to when
the alleged sexual activity occurred, trial counsel responded,
"Judge, I don't know. I'm waiting for the victim to testify."
Because defendant would not avail himself of the procedures
required by the Rape Shield Law, the court ruled trial counsel
would be limited to arguing "it would be impossible for the crime
to have been committed because [defendant] did [not] have an
erection or he didn't ejaculate or did [not] leave any genetic
material without going . . . to the next step and saying they had
sex on some prior occasion." Nevertheless, during summation,
without objection by the State or interference from the court,
defense counsel implied defendant and B.S. had sex on a prior
occasion, that is, defendant "obviously and fully penetrated
[B.S.] and left his semen. But it was not under the circumstances
she described."
In January 2010, defendant filed a pro se PCR petition
alleging his trial counsel was ineffective for, among other things,
6 A-5142-14T4
failing to investigate alibi witnesses and failing to conduct an
effective cross-examination of the State's witnesses. PCR counsel
subsequently was appointed to represent defendant ("first PCR
counsel").
In September 2010, defendant sent correspondence to his first
PCR counsel which essentially incorporated a "supplemental letter
brief" to file on his behalf. Defendant claimed, without
certifying or providing details, that B.S. was a prostitute, and
a second DNA test would support his consensual sexual intercourse
"theory."
In November 2010, first PCR counsel filed an amended petition,
alleging appellate counsel was ineffective for, among other
things, "not raising denial of DNA testing on his direct appeal."
However, first PCR counsel did not file defendant's proposed
supplemental letter brief in any form.
On November 17, 2010, defendant sent a twenty-five-page
document to first PCR counsel, certifying the information therein
was "truthful to the best of his knowledge." Defendant asserted,
for the first time, he engaged in consensual sex with the victim
three days prior to the incident. He also claimed the victim was
a prostitute and that he paid her half of her fee in cash and half
with drugs in exchange for sex.
7 A-5142-14T4
In May 2011, the first PCR judge denied relief, essentially
determining defendant's petition was unsupported by competent
evidence. As to defendant's claim that his appellate counsel was
ineffective for failing to raise "the denial of DNA testing," the
PCR judge found, "[t]he simple flaw in this argument is that there
was DNA testing in this case. And the results, which linked
defendant to the victim through sexual penetration, were never
disputed." Defendant appealed the first PCR court's decision.
Having found defendant's first PCR counsel failed to advance
his pro se arguments, we reversed and remanded for a new hearing
with new PCR counsel. State v. Stewart (Stewart II.), No. A-2210-
11 (App. Div. June 10, 2014).
In June 2014, new PCR counsel was assigned to represent
defendant ("second PCR counsel"). In July 2014, a forensic DNA
consultant hired by second PCR counsel, determined certain
specimens collected from the victim's body were never tested.
Those specimens were "anal swabs . . . external genital swabs . .
. [and] dried secretions collected from the exterior of the
victim's body" ("additional specimens").
In February 2015, defendant filed a pro se motion to compel
the State to produce specimen evidence for post-conviction DNA
testing. In March 2015, present PCR counsel filed a brief in
support of defendant's motion and PCR petition.
8 A-5142-14T4
In a comprehensive oral opinion rendered on April 29, 2015,
following oral argument, Judge Frederick J. Schuck denied
defendant's motion and PCR petition.
Applying the well-established two-pronged Strickland-Fritz6
standard, Judge Schuck recognized
the defendant must allege facts sufficient to
demonstrate counsel's alleged substandard
performance supported by affidavits or
certifications based on the personal knowledge
of the affiant. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999).
With respect to this [requirement], a court
must indulge a strong presumption that
counsel's conduct falls within the wide range
of reasonable professional assistance or that
the challenged action might be considered
sound trial strategy. State v. Harris, 181
N.J. 391, 431 (2004) (quoting Strickland,
supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694-95.
6
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42,
58 (1987). In order to establish a case of ineffective assistance
of counsel, defendant must demonstrate a reasonable likelihood of
success under the two-pronged Strickland-Fritz test. A defendant
must show: (1) that counsel was deficient or made egregious errors,
so serious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment of the United States
Constitution; and (2) the deficient performance actually
prejudiced the accused's defense. Strickland, supra, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz,
supra, 105 N.J. at 52.
9 A-5142-14T4
Considering this standard, the PCR judge rejected defendant's
argument trial counsel was ineffective for failing to secure
testing of the additional specimens. In so doing, the judge
"indulge[d] the strong presumption that the decision not to seek
DNA testing falls within the wide range of reasonable professional
assistance or might be considered sound trial strategy."
As to the first Strickland-Fritz prong, the PCR judge found
trial counsel utilized the DNA evidence to defendant's advantage
by claiming the attacker could not achieve an erection, penetrate
B.S., or ejaculate inside her. Among other reasons, the court
found testing the additional specimens could have been harmful to
defendant's case if defendant's DNA matched that contained in the
additional specimens.
As to the second Strickland-Fritz prong, the PCR judge found
defendant did not demonstrate prejudice because DNA testing of the
additional specimens would not have impacted the weight of the
evidence, that is, B.S.'s positive in-court and out-of-court
identifications of defendant, and her testimony that she had never
seen defendant prior to the day of the assault.
Recognizing trial counsel was unable to make "a sufficiently
specific proffer to warrant admissibility of a prior sexual act,"
the PCR judge likewise rejected defendant's argument trial counsel
was ineffective for failing to pursue a hearing pursuant to the
10 A-5142-14T4
Rape Shield Law. Judge Schuck observed defendant's specific
contention B.S. was a prostitute with whom he had consensual sex
three days prior to the assault, did not appear in the record
until defendant's November 17, 2010 correspondence to his first
PCR counsel. Citing trial counsel's response to the court when
the rape shield issue was discussed during the Wade hearing, the
PCR court found it apparent that trial counsel was unaware of
defendant's newly-minted "bald assertion."
Judge Schuck found defendant's remaining claims lacked merit,
including defendant's contention trial counsel failed to speak
with two purported alibi witnesses, George Bucks and Dawn Stewart. 7
Citing State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div.
2002), the judge observed defendant failed to support this claim
by an affidavit or certification of his witnesses. Moreover, the
court noted Dawn Stewart's pretrial statement to law enforcement
indicating she could not vouch definitively that defendant was at
her house the day of the assault.
Turning to defendant's motion for post-conviction DNA testing
pursuant to N.J.S.A. 2A:84A-32a, Judge Schuck carefully analyzed
the statute's requirements and the case law interpreting the
7
On appeal, defendant argues trial counsel failed to present "his
alibi witnesses, including his aunt, Dawn Stewart;" defendant does
not reference George Bucks.
11 A-5142-14T4
statute, concluding defendant's failure to satisfy two of the
eight requirements set forth in N.J.S.A. 2A:84A-32a(d)(1) - (8).
Specifically, defendant failed to demonstrate the additional
specimens were material to the issue of his identity pursuant to
N.J.S.A. 2A:84A-32a(d)(4). Nor could defendant show that if the
results were favorable, a motion for a new trial based upon newly-
discovered evidence would be granted pursuant to N.J.S.A. 2A:84A-
32a(d)(5).
Judge Schuck's rationale was similar to that supporting his
denial of defendant's PCR ineffective assistance of counsel
claims. Citing State v. Relden, 373 N.J. Super. 396, 407 (App.
Div. 2004), certif. denied, 182 N.J. 628 (2005), the judge found
favorable results would not obviate the facts that: defendant's
DNA was found inside B.S.'s vagina and cervix; B.S. positively
identified defendant; he could not prevail at a rape shield
hearing; and his defense that he had sex with B.S. on a prior
occasion was belated.
This appeal followed.
On appeal, defendant raises the following points for our
consideration:
POINT I
THE LOWER COURT'S ORDER THAT DENIED
DEFENDANT'S MOTION FOR POST-CONVICTION DNA
12 A-5142-14T4
TESTING MUST BE REVERSED BECAUSE [ ] DEFENDANT
MET ALL THE REQUIREMENTS SET FORTH IN N.J.S.A.
2A:84-32A(d) INCLUDING SUBSECTIONS (d)(4) AND
(d)(5)
A. [ ]Defendant Satisfied N.J.S.A. 2A:84A-
32a(d)(4) Because the Presence of Another
Man's DNA on the Victim's Body
Immediately After the Assault Would
Certainly Create a Material Dispute as
to the Identity of the Perpetrator
B. [ ]Defendant Satisfied N.J.S.A. 2A:84A-
32a(d)(5) Because There is a Reasonable
Probability That Favorable DNA Test
Results Would Entitle Him to a New Trial
Based Upon Newly[-]Discovered Evidence
POINT II
THE PCR COURT'S ORDER THAT DENIED DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF MUST BE
REVERSED BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
PROCEEDINGS BELOW
A. Trial Counsel's Failure to File a
Meritorious Rape Shield Motion
Constituted Ineffective Assistance of
Counsel
B. Trial Counsel's Failure to Obtain a DNA
Expert to Perform DNA Analysis on the
Untested Evidence Constituted
Ineffective Assistan[c]e of Counsel
C. Trial Counsel's Failure to Present
Defendant's Alibi Witnesses Constituted
Ineffective Assistance of Counsel
D. Trial Counsel's Failure to Investigate
the Facts and Research the Law
Constitute[d] Ineffective Assistance of
Counsel
13 A-5142-14T4
POINT III
THIS COURT SHOULD REMAND THE MATTER FOR AN
EVIDENTIARY HEARING
II.
We first address defendant's PCR petition. 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, material issues of disputed facts lie
outside the record, and resolution of the issues necessitates a
hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992). We review any legal conclusions of the
trial court de novo. State v. Nash, 212 N.J. 518, 540-41 (2013);
State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
"[I]n order to establish a prima facie claim, [the defendant]
must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient
14 A-5142-14T4
to demonstrate counsel's alleged substandard performance."
Cummings, supra, 321 N.J. Super. at 170. Under the first prong,
the defendant must demonstrate 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.
We have considered defendant's PCR contentions in light of
the record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
Judge Schuck expressed in his well-reasoned oral opinion. We add
the following remarks.
Trial counsel's decision to forego DNA testing of the
additional specimens was consistent with his well-executed trial
strategy. That strategy was to insulate his client from testifying
in light of defendant's lengthy criminal record. Although the
15 A-5142-14T4
nature of defendant's convictions was sanitized, had defendant
testified, the prosecutor undoubtedly would have attempted to
impeach his credibility by referencing his convictions for a second
degree offense, and multiple third and fourth degree offenses.
See N.J.R.E. 609. Without defendant's testimony, there was no
other way for him to introduce evidence of his purported prior
consensual sexual intercourse with the victim, and that her
attacker must have been a third party.
In light of the defense strategy, DNA testing of the
additional specimens was not a no-risk or clearly advantageous
option. Defense attorneys are required to provide the results of
such tests to the State. Rule 3:13-3(b)(2)(A). Had one or more
of the additional specimens matched defendant's DNA, counsel could
not have argued, as he did, that defendant was not the attacker
because the attacker's sperm did not reach B.S.'s cervix. Because
defendant's DNA was found on B.S.'s cervical and vaginal specimens,
defendant's DNA potentially could have been found in B.S.'s "anal
swabs . . . external genital swabs . . . [and] dried secretions
collected from the exterior of the victim's body." Without testing
the additional specimens, counsel was able to argue to the jury
B.S. and defendant likely had sex on a prior occasion.
Viewed in context, there is no support for a finding of
anything other than a reasonable strategic decision to forego DNA
16 A-5142-14T4
testing of the additional specimens. Even strategic choices made
after limited investigation are generally afforded great deference
and are assessed for reasonableness. Petrozelli, supra, 351 N.J.
Super. at 22. Trial strategy is clearly within the presumptive
discretion of competent trial counsel. State v. Coruzzi, 189 N.J.
Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Thus, defendant's PCR claim based on trial counsel's failure to
hire a DNA expert and request DNA testing was properly denied.
Moreover, the record is completely devoid of any evidence
defendant informed trial counsel that B.S. supposedly was a
prostitute whom he paid with money and drugs in exchange for sexual
intercourse three days prior to the assault. Indeed, the first
mention of his purported defense is partially referenced in the
September 2010 letter to first PCR counsel, more than four years
after trial, and six years after a crime defendant claims he did
not commit. When a defendant asserts his attorney has inadequately
represented him, "he must assert the facts that an investigation
would have revealed, supported by [an] affidavit[] or
certification[] based upon [his] personal knowledge." Porter,
supra, 216 N.J. at 353 (citing Cummings, supra, 321 N.J. Super.
at 170). Here, defendant has done no more than "make bald
assertions that he was denied the effective assistance of counsel."
Cummings, supra, 321 N.J. Super. at 170.
17 A-5142-14T4
The record also supports Judge Schuck's findings on
defendant's other claims. Accordingly, we are satisfied from our
review of the record that defendant failed to make a prima facie
showing of ineffectiveness of trial counsel under the
Strickland/Fritz test. We, therefore, discern no abuse of
discretion in the denial of defendant's PCR petition. The judge
correctly concluded an evidentiary hearing was not warranted. See
Preciose, supra, 129 N.J. at 462-63.
III.
Turning to defendant's motion for post-conviction DNA
evidence, we concur with Judge Schuck's denial of such testing.
Indeed, one of the key factors in determining the motion is number
five, that is, whether there is a "reasonable probability" that a
motion for a new trial would be granted if the DNA results proved
to be favorable to the defendant. N.J.S.A. 2A:84A-32a(d)(5).
Moreover, it is well-settled that to obtain a new trial based
on newly-discovered evidence, the defendant must establish the new
"evidence is (1) material, and not 'merely' cumulative,
impeaching, or contradictory; (2) . . . was discovered after
completion of the trial and 'was not discoverable by reasonable
diligence beforehand';" and (3) could "probably change the jury's
verdict if a new trial [was] granted." State v. Ways, 180 N.J.
18 A-5142-14T4
171, 187 (2004) (emphasis added) (quoting State v. Carter, 85 N.J.
300, 314 (1981)).
However, because we are satisfied trial counsel's decision
in not testing the additional specimens was sound and strategic,
and not ineffective, we conclude the additional specimens are not
new evidence. Indeed, the additional specimens were known at the
time of trial; counsel chose not to test them for the reasons set
forth above.
Simply put, even if the results of the additional specimens
could be construed as favorable to defendant, the specimens are
not new evidence and, as such, defendant would not be entitled to
a new trial. We, therefore, affirm on that basis. We are entitled
to affirm orders or judgments for reasons other than those
expressed by a trial court. See Isko v. Planning Bd. of
Livingston, 51 N.J. 162, 175 (1968); Voellinger v. Dow, 420 N.J.
Super. 480, 483 (App. Div.), certif. denied, 208 N.J. 599 (2011).
"It is [the] defendant's burden to establish that all of the
elements necessary for DNA testing have been fulfilled." State
v. Armour, 446 N.J. Super. 295, 311 (App. Div.), certif. denied,
228 N.J. 239 (2016). Defendant failed to establish the untested
specimens are newly-discovered evidence because they were known
at trial. That failure is fatal to his request for DNA testing.
N.J.S.A. 2A:84A-32a.
19 A-5142-14T4
Affirmed.
20 A-5142-14T4