STATE OF NEW JERSEY VS. WILSON MORALES(05-04-1576, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2515-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILSON MORALES,
Defendant-Appellant.
________________________________
Submitted April 26, 2017 – Decided August 25, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 05-04-1576.
Wilson Morales, appellant pro se.
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from the January 20, 2016 Law Division
order denying his motion for post-conviction DNA testing and
assignment of counsel. We affirm.
On September 29, 2006, defendant entered a negotiated guilty
plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-
4(a)(1), and was sentenced in accordance with the plea agreement
to eighteen years imprisonment, subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2. The charges stemmed from defendant's
involvement in a robbery at a grocery store, during which the
storeowner was shot and killed. The State's proofs included the
victim's wife's identification of defendant as one of two robbers,
defendant's girlfriend's incriminating statement and defendant's
confession.
The victim's wife identified defendant from a photo array as
the gunman. Defendant's girlfriend told police that she overheard
defendant and another person planning to rob a store. Thereafter,
defendant came home one night in tears with money and a gun and
admitted to her that he had robbed and shot someone in a store.
In addition, defendant confessed to police during a custodial
interrogation that he and an associate planned the robbery but he
waited outside until he heard gunshots, at which point he entered
the store briefly to pull out his associate. During his plea
allocution, defendant admitted that he and his associate drove to
the grocery store intending to rob it and he knew his associate
had a gun. Defendant acknowledged that his reckless actions caused
the victim's death and that he was an accomplice to the robbery.
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Defendant's direct appeal was heard by the excessive sentence
panel, R. 2:9-11, which affirmed his sentence, State v. Morales,
No. A-6700-06 (App. Div. Nov. 14, 2008), and the Supreme Court
denied defendant's petition for certification. State v. Morales,
198 N.J. 314 (2009). Defendant filed his first petition for post-
conviction relief (PCR) on March 16, 2009 and was assigned counsel.
On May 10, 2010, that petition, which asserted, among other things,
a Brady1 violation in connection with defendant's girlfriend's
recantation and the State withholding DNA evidence, was denied by
the trial court and that denial was later affirmed on appeal.
State v. Morales, No. A-1270-10 (App. Div. Feb. 20, 2013).2
Thereafter, the Supreme Court denied defendant's petition for
certification. State v. Morales, 216 N.J. 6 (2013).
On February 27, 2015, defendant filed a pro se motion for
post-conviction DNA testing and assignment of counsel, contending
that, despite his guilty plea, testing of the ski mask found at
the scene would show that "someone else committed the crime." To
support his application, defendant submitted a certification
averring that "[he] had voluntarily submitted hair samples to the
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).
2
Defendant filed a second PCR petition, but that petition was
dismissed on January 9, 2012 because the appeal of defendant's
first PCR petition was pending.
3 A-2515-15T4
State for DNA testing[.]" Defendant certified that although a
forensic analyst had sent his trial attorney "a report saying more
DNA could be performed on the mask that could exonerate [him,]"
the State "did not do a completed test of the hair that was found
on the mask[.]" Accordingly, defendant sought "STR testing and
mitochondrial testing[.]"
Attached to defendant's certification was a March 20, 2006
letter addressed to his trial attorney from a forensic analyst
with Orchid Cellmark who was apparently retained as a defense
expert. The analyst reported the results of her review of the New
Jersey State Police Laboratory testing performed in the case.
While the analyst agreed with "the ultimate conclusion" of the
State Police that "no DNA was detected[,]" the analyst "believed
further testing could have been performed[,]" stating:
Further analysis of the ski mask for trace
evidence is a possibility. If any hairs are
present, additional DNA can be performed. If
the hairs have roots then STR testing can be
performed. If there are no roots present on
any hairs possibly collected from the mask,
then mitochondrial testing can be utilized.
Judge Edward J. McBride, Jr., denied defendant's motion in a
cogent and well-reasoned written opinion. The judge carefully
analyzed N.J.S.A. 2A:84A-32a and concluded that defendant failed
to meet all the procedural and substantive requirements of the
statute, and was therefore "not entitled to either performance of
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post-conviction forensic DNA testing or assignment of counsel."
Judge McBride acknowledged that defendant had consented to
providing hair samples for comparison to evidence collected in the
case. Defendant had also provided a letter from a defense expert
who agreed with the test results performed by the State Police but
would have performed other tests on the hair samples, specifically
STR and mitochondrial testing. Because defendant now sought
performance of those tests and was willing to provide supplemental
samples to facilitate them, Judge McBride determined that
defendant thereby "satisfied his burdens under [N.J.S.A.] 2A:84A-
32a(a)(1)(c), (d), and (e)."
However, the judge found that defendant "failed to
satisfactorily explain, as required under [N.J.S.A.] 2A:84A-
32a(a)(1)(a), why his identity was a significant issue in the
case." The judge explained:
Defendant submits that "the identity of him
[sic] is a significant issue in this case,
because he is innocent of the crime he pled
to." This bald assertion, made nearly ten
years after the [d]efendant pled guilty, is
insufficient for several reasons. First, a
finding that the hair was not [d]efendant's
would not necessarily be exculpatory given the
other evidence in the case, including
[d]efendant's inculpatory statement, the
statement of his girlfriend, and the out-of-
court identification of [d]efendant by the
victim's wife. Second, and more importantly,
[d]efendant pled guilty to the charge of
aggravated manslaughter and admitted under
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oath that, inter alia, he was an accomplice
to the robbery and that he was, in fact, guilty
of aggravated manslaughter.
Further, the judge found that defendant "failed to explain,
as required by [N.J.S.A.] 2A:84A-32a(a)(1)(b), . . . that if the
results of such DNA testing were favorable to [d]efendant, a motion
for a new trial based upon newly discovered evidence would be
granted." Citing the standard for a new trial motion articulated
in State v. Carter, 85 N.J. 300, 314 (1981), the judge pointed out
that "although it is arguable that such DNA evidence could be
material, . . . contrary to [d]efendant's assertions, at no point
does [the defense expert] state that such evidence would
'exonerate' [d]efendant." Further, according to the judge, "this
evidence was known to [d]efendant and his counsel at the time of
his plea agreement." Finally, the judge noted, "it is unlikely
that such evidence would change a jury's verdict had [d]efendant's
case gone to trial" given "all of the other highly inculpatory
evidence[.]"
This appeal followed. On appeal, defendant raises a single
argument for our consideration:
POINT I
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S
MOTION FOR PERFORMANCE OF FORENSIC DNA TESTING
AND ASSIGNMENT OF COUNSEL, VIOLATING
DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
6 A-2515-15T4
We defer to the factual findings of the trial court so long
as they are supported by "sufficient credible evidence present in
the record." State v. Reece, 222 N.J. 154, 166 (2015) (quoting
State v. Locurto, 157 N.J. 463, 470-71 (1999)). However, our
review of a trial court's legal determinations is de novo. Reece,
supra, 222 N.J. at 167. Defendant argues that contrary to the
judge's ruling, he "has met every requirement warranting relief"
under N.J.S.A. 2A:84A-32a.3 We disagree and affirm substantially
for the reasons expressed in Judge McBride's written opinion. We
add only the following comments.
N.J.S.A. 2A:84A-32a allows one convicted of a crime who is
serving a term of imprisonment to move for forensic DNA testing
of evidence probative of guilt or innocence. State v. Peterson,
364 N.J. Super. 387, 390 (App. Div. 2003). The DNA testing statute
imposes both procedural and substantive requirements upon a
3
For the first time on appeal, defendant also seeks DNA testing
of a "bite mark on [the] victim." We "'decline to consider
questions or issues not properly presented to the trial court when
an opportunity for such a presentation is available unless the
questions so raised on appeal go to the jurisdiction of the trial
court or concern matters of great public interest.'" Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson,
200 N.J. 1, 20 (2009), certif. denied, 226 N.J. 213 (2016)).
Defendant did not raise this issue before the trial judge and it
is not jurisdictional in nature, nor does it substantially
implicate the public interest.
7 A-2515-15T4
defendant seeking DNA testing. Procedurally, a defendant must
first meet the following requirements:
(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 the DNA testing
evidence at trial. . . . ;
(d) make every reasonable attempt to identify
both the evidence that should be tested and
the specific type of DNA sought; and
(e) include consent to provide a biological
sample for DNA testing.
[N.J.S.A. 2A:84A-32a(a)(1).]
If the defendant meets the procedural requirements of
N.J.S.A. 2A:84A-32a(a)(1), then the defendant is entitled to a
hearing pursuant to N.J.S.A. 2A:84A-32a(b), wherein the trial
court shall determine whether the following substantive
requirements 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
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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 eligible person has made a prima facie
showing that the evidence sought to be tested
is material to the issue of the eligible
person's identity as the offender;
(5) the requested DNA testing result would
raise a reasonable probability that if the
results were favorable to the defendant, a
motion for a new trial based upon newly
discovered evidence would be granted. The
court in its discretion may 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 required 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.
[N.J.S.A. 2A:84A-32a(d).]
"It is [the] defendant's burden to establish that all of the
elements necessary for DNA testing have been fulfilled." State
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v. Armour, 446 N.J. Super. 295, 311 (App. Div. 2016), certif.
denied, 228 N.J. 239 (2016).
Defendant argues he has satisfied the statutory criteria
because his identity was a significant issue in the case and he
asserts the judge applied an incorrect standard by relying on the
State's overwhelming evidence. We disagree. The proofs necessary
to establish whether the identity of the defendant was a
"significant issue" in the case were analyzed in Peterson, supra,
364 N.J. Super. at 394. In Peterson, we explained N.J.S.A. 2A:84A-
32a(d)(3) "does not specify that the identification of the
defendant as the perpetrator must have been established by any
particular form of evidence." Id. at 395. Additionally, "the
strength of evidence against a defendant is not a relevant factor
in determining whether his identity as the perpetrator was a
significant issue." Id. at 396. Rather,
[t]he underlying objective of N.J.S.A. 2A:84A-
32a--to provide an opportunity for exoneration
of an innocent person through the testing of
evidence by a highly reliable scientific
methodology that was not available at the
original trial--may be served in any case
where there is a genuine question concerning
the identity of the perpetrator. Therefore,
we conclude that the requirement of N.J.S.A.
2A:84A-32a(d)(3) that "identity" must have
been a "significant issue" at defendant's
trial before post-conviction DNA testing will
be ordered does not turn on the form of
evidence the State relied upon to prove the
perpetrator's identity.
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[Id. at 395.]
Here, we conclude defendant's motion was properly denied
because defendant failed to "explain why the identity of the
defendant was a significant issue in the case[.]" N.J.S.A. 2A:84A-
32a(a)(1)(a). Likewise, defendant failed to "explain in light of
all the evidence, how if the results of the requested DNA testing
[were] favorable to [him], a motion for a new trial based upon
newly discovered evidence would be granted[.]" N.J.S.A. 2A:84A-
32a(a)(1)(b). In this regard, to meet the standard for "a new
trial based on newly discovered evidence, . . . defendant must
show that the evidence is . . . 'material . . . and not merely
cumulative[,] . . . impeaching[,] or contradictory[;] . . . and
. . . that [the evidence] would probably change the jury's verdict
if a new trial were granted.'" Peterson, supra, 364 N.J. Super.
at 398 (quoting Carter, supra, 85 N.J. at 314). Further, as
relevant here, defendant must show that the evidence was discovered
after he pled guilty "and was not discoverable by reasonable
diligence beforehand[.]" State v. Ways, 180 N.J. 171, 187 (2004)
(quotation and citation omitted).
We have construed the analysis of the "new trial" standard
in the context of the DNA testing statute to "not require a
defendant to prove the DNA results will be favorable, rather it
11 A-2515-15T4
must only be established that there is a reasonable probability
that a new trial would be granted if the DNA results are favorable
to the defendant." Armour, supra, 446 N.J. Super. at 312
(quotation and citations omitted). However, in determining
whether there exists a reasonable probability that a new trial
would be granted, we may consider the extent and nature of the
State's proofs and "[a] defendant cannot compel the State to
release the evidence for DNA testing where the evidence . . . was
overwhelming and the defendant did not present a defense
. . . that would be consistent with the explanation the DNA
[testing] results might supply." State v. Reldan, 373 N.J. Super.
396, 402-03 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).
Simply stated, we cannot draw the connection suggested by
defendant that a favorable outcome in connection with the testing
of the ski mask would exonerate him. Even if the DNA of a person
other than defendant was found on the ski mask, there is no
reasonable probability that the discovery of such proof would
establish his entitlement to a new trial. In Peterson, the
challenged forensic evidence was used to identify the defendant
as the perpetrator (i.e., hairs found on or near the victim, semen
found on the outside of the victim's clothing and blood found
under the victim's fingernails). Id. at 392. There, the identity
of the murderer was likely and almost certainly the person whose
12 A-2515-15T4
DNA was found at the crime scene. Ibid. Here, the evidence sought
to be tested is immaterial to the issue of defendant's identity
as the perpetrator and would not constitute grounds for a new
trial. Even the most favorable retesting outcome must be weighed
against the State's compelling proofs and would be overshadowed
by the probative evidence of defendant's guilt. For those reasons,
we agree with Judge McBride that defendant has not made the
necessary showing pursuant to N.J.S.A. 2A:84A-32a(a)(1)(a) and
(b).
Affirmed.
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