STATE OF NEW JERSEY VS. REGINALD ROACH (06-03-0342, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1523-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD ROACH, a/k/a
REGINALD W. HOLMES,
Defendant-Appellant.
___________________________
Submitted April 8, 2019 – Decided May 7, 2019
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 06-03-
0342.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
After a 2007 jury trial, defendant Reginald Roach was found guilty of
aggravated sexual assault, burglary, and other offenses. His crimes arose out of
the home invasion and sexual assault of a sixty-four-year-old woman, H.H.1 He
was sentenced to a forty-four-year aggregate prison term.
On direct appeal, we upheld defendant's conviction and sentence in an
unpublished opinion, except for requiring the merger of one of his offenses.
State v. Roach, No. A-1890-07 (App. Div. Aug. 1, 2011). The Supreme Court
upheld his conviction as well, rejecting defendant's argument that the trial cou rt
violated his Confrontation Clause rights by admitting certain DNA evidence
against him through the testimony of the State's expert witness. State v. Roach,
219 N.J. 58 (2014). The United States Supreme Court denied his petition for
certiorari. State v. Roach, 135 S. Ct. 2348 (2015).
Defendant subsequently filed a timely petition in the Law Division for
post-conviction relief ("PCR"), principally claiming his trial attorney was
constitutionally ineffective in his advocacy with respect to the State's DNA
proofs that identified him as the perpetrator in the home invasion and sexual
assault. Among other things, defendant alleges his trial attorney was
1
We use initials to protect the victim's privacy.
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inadequately prepared, ineffective in cross-examining the State's testifying
expert, and should have retained a competing DNA expert. The same judge who
had presided over the trial rejected defendant's PCR petition, without finding an
evidentiary hearing necessary.
In his present appeal, defendant makes the following points in his
counseled brief:
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS, IN THAT TRIAL
COUNSEL, BY HIS OWN ADMISSION, WAS
UNPREPARED AND FAILED TO MOUNT A
COMPLETE DEFENSE DUE TO LACK OF
INVESTIGATION.
POINT II
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW REGARDING PREVIOUSLY UNADDRESSED
CLAIMS. (NOT RAISED BELOW).
Defendant also advances three points in a pro se supplemental brief:
PRO SE POINT I
THE PCR COURT COMMITTED "HAR[M]FUL
ERROR" WHEN IT TRIVIALIZED THE
IMPORTANCE OF A DNA EXPERT FOR THE
DEFENDANT, AND USED EVIDENCE OF A "NON
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3
EXISTING" PRIOR CONVICTION TO JUSTIFY
VIOLATING DEFENDANT'S VI AMENDMENT,
AND TO "DIRECT EVIDENCE" OF THE USE OF
CONTAMINATED DNA. (NOT RAISED BELOW)
PRO SE POINT II
PROSECUTORY [SIC] MISCONDUCT, AND
ULTIMATE COLLUSION BY THE COURT,
SUBSTANTIALLY PREJUDICED THE
DEFENDANT AND MISLED THE JURY DURING
THEIR FACT-FINDING DELIBERATION,
VIOLATING HIS VI AND XIV AMENDMENTS
UNDER THE CONSTITUTION, (NOT RAISED
BELOW)
PRO SE POINT III
TRIAL COUNSEL WAS INEFFE[C]TIVE, ILL
PREPARED, AND UNINFORMED: PRIOR TO
TRIAL, DURING TRIAL AND DURING
SENTENCING. HE NEGLECTED TO HAVE A DNA
EXPERT, IN A DNA TRIAL, DIMINISHING THE
STATE'S RESPONSIBILITY, VIOLATING VI AND
XIV AMENDMENTS TO THE CONSTITUTION.
(NOT RAISED BELOW)
For the reasons that follow, we affirm the PCR denial.
I.
The facts and procedural history were already canvassed in our prior
opinion and the Supreme Court's opinion. We repeat portions relevant to the
present appeal.
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The victim, H.H., testified at the jury trial that when she was sixty-four
years old, she lived in a two-story townhouse in North Brunswick. H.H. testified
that she awoke at approximately 1:30 a.m. on November 5, 2005, to find a man
sitting on her bed, holding a pointed object to her neck and telling her to follow
his orders so she will not "get hurt." The man then demanded money. When
H.H. said she had some downstairs, they both went downstairs to get it whi le
the man remained "very close" to her with the pointed object in his hand.
Once downstairs, H.H. opened a kitchen drawer for the man, but when she
went to lift up the cutlery tray under which money was hidden, the man told her
not to touch it. He lifted up the tray instead and took the money. Then the man
ordered her back upstairs and told her to lie face-down on the bed. According
to H.H., the man proceeded to sexually assault her. After the man fled the scene,
H.H. called the police. Roach, 219 N.J. at 61.
North Brunswick Police Officer David Incle responded to the scene. The
officer took H.H. to a hospital and then to a rape crisis center, where Registered
Nurse Eileen Aiossa performed a forensic examination and prepared a sexual
assault kit. During this examination, Aiossa took fingernail, oral, vaginal, and
anal swabbings for DNA analysis. Aiossa also collected dry secretions from the
inner aspect of H.H.'s left and right thighs. Finally, Aiossa collected head and
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pubic hair combings, an external genital specimen, and the nightgown H.H. was
wearing when she was sexually assaulted.
Aiossa also observed several injuries on H.H. Specifically, Aiossa saw a
cut one-and-a-half centimeters long on the left side of H.H.'s neck and a cut a
half-centimeter long on her neck's right side. Aiossa also observed two tears in
H.H.'s vaginal opening, as well as fresh blood.
Aiossa individually sealed each of the collected specimens, and put the
sealed specimens in a standardized sexual assault kit. She then gave this kit to
Patrolman Incle.
After receiving the rape kit from Aiossa, Patrolman Incle brought both
H.H. and the rape kit back to the North Brunswick Police Department. The rape
kit specimens were delivered to the State Police Forensic Laboratory ("the State
Lab").
H.H. was interviewed by Lead Investigator Paul Miller from the
Middlesex County Prosecutor's Office. H.H. described her attacker to the police
as "slim, soft-spoken, and taller than she." Id. at 62. She was unable to identify
him because she had not seen his face.
After investigating H.H.'s residence and the surrounding area, the police
spoke to neighbors who initially identified a male "E.A." as a potential suspect.
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A buccal swab was obtained from E.A. and sent to the State Police Lab for
analysis. Ibid.
Defendant was thereafter developed as a suspect, based initially on a tip
from a confidential informant. Upon learning that defendant lived less than a
mile away from H.H., investigators went to his residence to talk to him.
Defendant was not home when the investigators arrived, and Investigator Miller
left his business card. Several days later, Miller received a phone message from
defendant denying any knowledge about the crime. Defendant refused Miller's
request to voluntarily submit a buccal swab sample.
Miller testified that, after defendant refused to provide a sample, he
realized that a previous DNA sample from defendant was already in the
Combined DNA Index System ("CODIS") because defendant was a convicted
felon. Miller accordingly asked the State Lab to compare the DNA sample taken
from H.H. to defendant's prior sample in CODIS. The State Lab informed Miller
that defendant's previous DNA sample matched the sample taken from H.H., and
defendant was subsequently arrested. Pursuant to a court order, investigators
obtained defendant's fingerprints and a new buccal swab sample, which was
used to again confirm the CODIS match, and as evidence in the trial.
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Charles Williams, a forensic scientist in the Biochemistry Department of
the State Lab, tested the items in the sexual assault kit for the presence of blood
and sperm. Id. at 62. According to Williams, "the vaginal slide tested positive
for sperm, the external genital specimen and anal swab tested positive for blood,
and the dried secretions from H.H.'s thighs tested positive for both blood and
sperm." Ibid. Those specimens were passed along to the DNA Department of
the State Lab along with H.H.'s buccal swab. Ibid.
Thereafter, Lydia 2 Schiffner, a forensic scientist with the DNA
Department of the State Lab, received the items from H.H.'s sexual assault kit,
as well as the buccal swabs taken from H.H. and E.A. Id. at 64. Specifically,
Schiffner analyzed H.H.'s buccal swabs, vaginal swabs, anal swabs, and
swabbings from the left and right-thigh areas and generated DNA profiles from
those swabs. Schiffner performed a differential extraction on each specimen to
separate the sperm cells from the skin cells, creating separate sperm-cell
fractions ("SCF") and non-sperm-cell fraction ("NSCF") samples from each
specimen. Ibid.
Based on the analysis that Schiffner performed, she was able to create a
full DNA profile for the individual who had contributed the sperm ce lls to the
2
The Supreme Court opinion spells the expert's first name "Linnea."
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specimens taken from H.H., as well as DNA profiles for H.H. and E.A. from
their respective buccal swabs. Id. at 64. Schiffner's report concluded that E.A.
was excluded as a possible contributor to the DNA profiles from the sperm cell
fractions of the inner thigh samples. Ibid.
After Schiffner generated her report in December 2005, she relocated to a
distance state and the H.H. file was assigned to Jennifer Banaag, another
forensic scientist in the DNA Department of the State Lab. Ibid. Banaag
eventually testified for the State at trial as an expert in DNA analysis.
Banaag reviewed Schiffner's entire case file and, as she put it,
"independently" agreed with Schiffner's analysis. Banaag testified that
Schiffner analyzed the swabs from H.H. and came up with a DNA profile of a
suspect who was the secondary contributor (H.H. being the primary contributor)
to the DNA recovered from H.H.'s thigh swabs. In the meantime, Banaag
analyzed the DNA taken from defendant's buccal swab and generated a full DNA
profile for him. Ibid. Banaag testified that her DNA analysis revealed that
defendant's DNA matched that of the secondary contributor to the secretion
found on the two thigh swabs from H.H. in thirteen locations of alleles.
Banaag testified that the DNA profile found in defendant's samples was
estimated to occur in only one in approximately 1.3 quintillion African
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Americans, one in 339 quintillion Caucasians, and one in 7.42 quintillion
Hispanics. Ultimately, Banaag concluded, "within a reasonable degree of
scientific certainty," that defendant was the source of the DNA taken from H.H.'s
thigh swabs. Ibid.
On cross-examination of Banaag, defendant's trial counsel focused
extensively on potential flaws in the procedures used by the State Lab to ensure
accurate testing and results. Defense counsel asked Banaag detailed questions
about the process of detecting, separating, and amplifying the DNA samples.
After asking Banaag to explain that process, defense counsel followed up with
a question asking Banaag to explain if the "reagents" she just mentioned were
called "primers," a term that Banaag did not use previously in her testimony on
direct. Banaag confirmed that the substances are called primers, and at defense
counsel's request, she explained what a primer is. Defense counsel then
followed up with a question about whether the State Lab uses "buffers" – another
term not previously mentioned by Banaag – and Banaag confirmed that they
used such buffers and explained what they are.
Defense counsel then proceeded to probe Banaag with questions about
where the State Lab purchases their testing kits from; the intricacies of the
machine used to generate and mix the samples, including questions about the
A-1523-17T4
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accuracy of those machines and how the computer generates the results from the
machine; the accuracy of her statistical calculations; and the quality controls and
procedure used by the scientists in the Lab. Counsel also highlighted the fact
that Banaag discussed only the alleles generated from H.H.'s thigh samples, but
did not mention the results of the other samples contained in the rape kit.
Before summations, the trial judge complimented defense counsel outside
of the jury's presence on his cross-examination of Banaag:
THE COURT: You did a good job on cross. For
someone who claims doesn't know much about DNA
you did a good job. Let the record reflect that you did.
PROSECUTOR: He could have fooled me.
DEFENSE COUNSEL: I'm a quick learner.
During summations, defense counsel spoke at length about the DNA
evidence and pointedly called Banaag's testimony into question. Counsel
suggested to the jury that the DNA samples could have mislabeled, the testing
machines could have been inaccurate, and that the scientists could have
accidently contaminated the specimens by not following protocol. As such, the
summation reinforced the attack defense counsel presented earlier in his cross-
examination of Banaag.
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Despite this advocacy by defense counsel, the jury returned a verdict in
the State's favor. On direct appeal, we rejected defendant's argument that his
confrontation rights were violated by the forensic evidence introduced through
Banaag's testimony. State v. Roach, No. A-1890-07 (App. Div. Aug. 1, 2011).
The Supreme Court upheld that conclusion. Roach, 219 N.J. at 82.
A crucial facet of the Supreme Court's decision was the fact that Banaag
had independently reviewed and verified Schiffner's results and did not "merely
parrot" Schiffner's findings. Id. at 79. The Court emphasized, however, that
such "testimony must be provided by a truly independent and qualified
reviewer." Ibid. Concluding that Banaag's testimony appropriately "explained
how she used her scientific expertise and knowledge to independently review
and analyze the graphic raw data . . . generated [from] Schiffner's testing," id.
at 81, the Court ruled that the defense "had the opportunity to confront Banaag
on her conclusions and on the facts that she independently reviewed, verified,
and relied on in reaching those conclusions." Id. at 82-83.
Having thus failed to demonstrate on direct appeal that the trial court erred
in admitting the State's DNA expert's testimony, defendant turned his sights on
his former counsel in a PCR petition. In particular, he complained his attorney
was unprepared to deal with the DNA proofs at trial and should have retained a
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competing DNA expert. He also alleged ineffective assistance on other aspects
of the case. We turn to those claims of ineffectiveness.
II.
Under the Sixth Amendment of the United States Constitution, a person
accused of crimes is guaranteed the effective assistance of legal counsel in his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a
deprivation of that right, a convicted defendant must satisfy the two-part test
enunciated in Strickland by demonstrating that: (1) counsel's performance was
deficient, and (2) the deficient performance actually prejudiced the accused's
defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-part test in New Jersey).
When reviewing such claims of ineffectiveness, courts apply a strong
presumption that defense counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy'
will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105
N.J. at 54 (citation omitted); see also State v. Echols, 199 N.J. 344, 357-59
(2009).
A-1523-17T4
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"The quality of counsel's performance cannot be fairly assessed by
focusing on a handful of issues while ignoring the totality of counsel's
performance in the context of the State's evidence of defendant's guilt." State v.
Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall 123 N.J. 1, 165
(1991)). "As a general rule, strategic miscalculations or trial mistakes are
insufficient to warrant reversal 'except in those rare instances where they are of
such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at
314-15 (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42
(1991)). Moreover, "'an otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with his or her counsel's exercise of
judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting
Castagna, 187 N.J. at 314).
The applicable law further instructs that, in order to obtain an evidentiary
hearing on a PCR petition based upon claims of ineffective of assistance of
counsel, a defendant must make a prima facie showing of both deficient
performance and actual prejudice. State v. Preciose, 129 N.J. 451, 463 (1992).
"To establish such a prima facie case, the defendant must demonstrate a
reasonable likelihood that his or her claim will ultimately succeed on the
merits." Marshall, 148 N.J. at 158; see also R. 3:22-10(b).
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"When determining the propriety of conducting an evidentiary hearing,
the PCR court should view the facts in the light most favorable to the defendant."
State v. Jones, 219 N.J. 298, 311 (2014) (citing Marshall, 148 N.J. at 158). See
also Preciose, 129 N.J. at 462-63. "However, a defendant is not entitled to an
evidentiary hearing if the 'allegations are too vague, conclusory, or speculative
to warrant an evidentiary hearing.'" State v. Porter, 216 N.J. 343, 355 (2013)
(quoting Marshall, 148 N.J. at 158).
When, as here, a defendant claims his trial attorney "inadequately
investigated his case, he 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." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (citing R. 1:6-6). "Bald
assertions" of deficient performance are insufficient to support a PCR
application. Ibid. See also R. 3:22-10(b); Porter, 216 N.J. at 356-57
(reaffirming these principles in evaluating which of a defendant's various PCR
claims warranted an evidentiary hearing).
Having applied these well-established standards to defendant's present
appeal, we affirm the trial court's denial of his PCR petition. We do so
substantially for the sound reasons set forth by Judge Dennis V. Nieves in his
A-1523-17T4
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comprehensive written opinion dated August 31, 2017. We amplify the judge's
analysis with a few additional comments.
We agree with Judge Nieves that defendant has not made a prima facie
showing on the first prong of Strickland, i.e., deficient performance by trial
counsel relating to the DNA evidence. From our own review of the trial
transcripts, we share the judge's assessment that defense counsel capably
attempted to undermine the State's DNA proofs linking him to the semen and
genetic material found on the victim. The fact that the jury ultimately was
persuaded by the State's evidence and found defendant guilty does not mean that
defense counsel's efforts fell below the standards of professional competency.
Defendant stresses that his trial counsel asserted to the court at a pretrial
hearing on January 3, 2007 that he was "unprepared" to proceed to trial and
would need about "a year or two" to educate himself sufficiently enough to
counter the State's DNA evidence. These comments by defense counsel seeking
a long postponement of the looming trial appear, in context, to be hyperbole.
When the trial convened a week later, defense counsel nonetheless exhibited
substantial knowledge of the subject matter. He strenuously advocated his
client's interests in attempting to impeach the State's DNA expert. Moreover, as
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we have already noted, the trial judge complimented counsel after his cross-
examination, a compliment that appears from the transcript to be well-deserved.
Defense counsel also competently preserved, through a timely objection,
defendant's constitutional argument of a denial of confrontation rights stemming
from Schiffner's absence at trial. This was an important legal issue with
widespread implications that was not resolved until the Supreme Court's 2014
opinion in this case and in the two companion opinions the Court issued that
same day. See, e.g., State v. Michaels, 219 N.J. 1 (2014); State v. Williams, 219
N.J. 89 (2014). Although defendant's constitutional argument was ultimately
not adopted by the Supreme Court majority, that is no indication of any failure
of competent advocacy.
The PCR court reasonably rejected defendant's claim that his trial attorney
was professionally deficient because he did not present testimony from an
opposing DNA expert. As Judge Nieves observed in his PCR opinion, defense
counsel attempted to retain one or more DNA experts but "they were not much
help" because they required additional documents. Defense counsel then sought
to obtain those documents by moving to compel discovery. On the whole, the
judge found "[i]t is clear that trial counsel investigated the issues related to DNA
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evidence and that defense counsel attempted to hire a DNA expert well before
the onset of trial."
Furthermore, defendant has failed to supply a report or certificate from a
DNA expert attesting to opinions that could support a prima facie claim of a
Sixth Amendment violation. The mere "bald assertions" of defendant himself
that further investigation and advocacy concerning the DNA proofs are
inadequate to warrant relief or justify an evidentiary hearing. Porter, 216 N.J.
at 349.
Given the statistical force of the DNA match in this case, it may well be
that no opposing expert or a more experienced lawyer could have done more to
undermine those proofs effectively. In sum, both prongs of Strickland, i.e.,
deficient attorney performance and actual prejudice stemming from alleged
subpar advocacy, are simply not present here.
The remaining arguments posed by defendant in his appellate brief and
pro se supplemental brief lack sufficient merit to warrant discussion in this
written opinion, beyond the cogent analysis already set forth in Judge Nieves'
written opinion. R. 2:11-3(e)(2).
As one minor aside, we find no merit in defendant's pro se assertion that
the PCR judge critically overlooked Point "F" of his pro se PCR supplemental
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brief challenging the accuracy of a November 17, 2006 pretrial transcript
concerning a confidential informant. Defendant provides no evidence to
substantiate that the transcript is incorrect. He does not disprove the
transcriber's presumptively valid certification of accuracy. See Rule 2:5-5(a);
see also State v. Kuske, 109 N.J. Super. 575, 592-93 (App. Div. 1970) (finding,
on a motion to settle the record, the court reporter's affidavit that the trial
transcript was "true and correct" more credible than defendant's pro se
accusation of transcription errors).
Affirmed.
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