NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0600-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSH POMPEY,
Defendant-Appellant.
Argued February 10, 2021 – Decided May 18, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 89-12-1594.
Eric V. Kleiner argued the cause for appellant (Eric V. Kleiner, attorney; Eric V. Kleiner and Rudie Weatherman, on the briefs).
John J. Scaliti, Legal Assistant, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Jaimee Chasmer, Assistant Prosecutor, of counsel and on the brief; John J. Scaliti, on the brief).
PER CURIAM Defendant Josh Pompey appeals from two Law Division orders denying
his petitions for post-conviction relief (PCR). We affirm.
A jury found defendant guilty of two counts of first-degree murder,
N.J.S.A. 2C:11-3(a)(1), (2) (counts one and two); four counts of felony murder,
N.J.S.A. 2C:11-3(a)(3) (counts three through six); aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(3) (count seven); and aggravated assault, N.J.S.A. 2C:12-
1(b)(5)(a) (count eight). Defendant was first charged with capital murder,
resulting in a hung jury.
The next trial, a non-capital prosecution, took place between November
5, 1997, and March 9, 1998, and defendant was convicted of all charges. After
appropriate mergers, defendant was sentenced to an aggregate two life terms
plus twenty-one and one-half years, with a seventy-year and nine-month parole
bar. Sentence was imposed on April 3, 1998, and the judgment signed April 8,
1998. On appeal, we affirmed. State v. Pompey, No. A-5772-97 (App. Div.
May 17, 2004). The Supreme Court denied certification on June 22, 2005. State
v. Pompey, 184 N.J. 211 (2005).
Defendant's convictions arose from the murder of his former girlfriend
and her aunt. He broke into the victims' home through a basement window and
waited there for the former girlfriend's return for several hours. Defendant
2 A-0600-17 confronted her about resuming the relationship; she became fearful and
attempted to appease him to no avail. When her aunt came downstairs to inquire
about the commotion, defendant, who had attempted to engage in sexual
relations with his former girlfriend, stabbed them both. He unsuccessfully
attempted to hotwire her car.
Defendant ran from the scene, hiding his clothing, including the gloves
worn during the killing, along the way. In his confession, he directed police to
the locations where the scattered clothing could be found. Cuts were observed
on his left hand when he was processed at the jail, which defendant said were
injuries from a kitchen knife on the day of the murders.
DNA testing established that defendant could not be ruled out as a major
contributor, and the former girlfriend a minor contributor, to blood samples
taken from inside her car and from his black pants. Additional items, found at
the locations defendant identified, were also tested. The victim could not be
ruled out as the major contributor and defendant the minor contributor, to blood
found on his windbreaker and to blood stains found on a shirt in a dumpster.
Additionally, defendant could not be ruled out as a contributor to the blood on
the mattress and the victim's brassiere. Her boyfriend was excluded as a
contributor to any samples.
3 A-0600-17 Defendant's pretrial Miranda 1 motion was denied. Among the grounds he
raised for suppression of his statement was his limited IQ of 80. He later claimed
the police bullied him, struck him, and kept him handcuffed during the
interview.
Defendant filed his first PCR petition in January 2006, claiming that his
experts were improperly barred from testifying as established by subsequent
caselaw and news articles; the prosecutor engaged in misconduct during opening
and closing statements; police tampered with evidence and conspired against
him, as did the judges who presided over the case; the DNA evidence had been
tampered with and was unreliable; he was wrongfully precluded from pursuing
an investigation into the victim's boyfriend as a "bloody" fingerprint had been
found on the utensil drawer (during the trial, the State's DNA expert said that
although the boyfriend's fingerprint was found on the utensil drawer, it had no
blood on it, and was not in a bloody area); the jury charge was erroneous; his
confession was coerced and he should have been granted a Miranda rehearing
after it was revealed that he had a handcuff on one arm when the stenographer
transcribed his statement to police; the physical evidence against him should
have been suppressed; the jury was prejudiced and engaged in misconduct; he
1 Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-0600-17 was wrongfully precluded from trying on one of two knit gloves he allegedly
wore during the killing; he was wrongly denied discovery essential to his attack
on the credibility of the investigating officers who testified against him; the
serology log books were doctored by police and prosecutors; the prosecutor
presented perjured testimony regarding photos taken of the victim's car; defense
witness testimony regarding his reaction to "learning" of the victim's death was
wrongfully precluded; there was judicial bias against him; and appellate counsel
failed to advise him of PCR filing deadlines and was otherwise ineffective.
Defendant also requested an evidentiary hearing and additional DNA testing.
The judge who heard the petition on September 28, 2007, ruled that it was
time-barred, having been filed more than seven and one-half years after entry of
the judgment of conviction. He considered defendant's claim of excusable
neglect—based on appellate counsel's alleged failure to advise him of the time
limits for filing for PCR—unavailing, as counsel had no duty to do so and no
other exceptional circumstances existed. The judge also found the majority of
defendant's claims to be barred under Rule 3:22-4 and 3:22-5 because either they
were raised on direct appeal, or could have been raised on direct appeal, and
recent caselaw and post-trial newspaper articles were not newly discovered
evidence. The judge observed:
5 A-0600-17 [T]he only change between the defendant's arguments as presented today and those presented approximately ten years ago, is that the defendant has added myself and a three [j]udge Appellate [c]ourt [p]anel to the ever growing list of conspirators, which already includes the current Assignment Judge, two Superior Court [j]udges, the Bergen County Prosecutors office and the entire Hackensack Police Department. Accordingly, those arguments raised by the defendant which have already been adjudicated[,] are barred by Rule 3:22-5.
Despite finding no prima facie case had been established, the judge
granted defendant's request for additional DNA testing. Defendant appealed,
but requested a stay of appeal pending the new DNA results. On August 15,
2008, we dismissed defendant's appeal without prejudice, expressly authorizing
him to file a new appeal after the additional DNA testing was completed.
The parties spent two years litigating which items would be submitted for
additional DNA testing. Ultimately, a judge signed orders on November 19,
2009, and August 27, 2010, authorizing the testing, and in some cases the repeat
testing, of: (1) the black pants; (2) the burgundy windbreaker; (3) the victim's
boyfriend's red gym bag (which had been found in the trunk of the victim's car)
and up to four items from the car; (4) a surgical glove; (5) the cut wires from the
victim's car; (6) "[v]aginal, oral and anal swabs designated as SP 81, 82 and 83";
(7) the left and right hand gloves and defendant's sneakers (at the State's
6 A-0600-17 election); (8) the plastic bag found in the woods; (9) the victim's bra; and (10)
the brown belt. After the additional testing was completed, the appeal was not
reinstated.
On September 9, 2011, defendant filed a motion for a new trial based upon
news articles regarding one of the officers whose work was crucial to the
investigation and who testified at trial. As a result of these news articles,
defendant alleged, among other things, that the officer was in the mob, a liar,
and a contract killer for hire. The motion was denied on February 1, 2012,
because the claims were speculative and conclusory. That judge opined that if
the application was treated as a PCR petition, it was time-barred.
On March 13, 2012, defendant filed a motion in our court under the initial
PCR appeal docket number, asking that the issues be consolidated with his
appeal of the denial of a new trial and any issues that might arise from the
ongoing DNA testing. That motion was denied on April 9, 2012, because
defendant's initial appeal had been dismissed and was never reinstated.
The additional DNA testing was completed February 7, 2014. Among
other things, it established again that defendant was the main contributor of one
of the blood stains on the black pants, and the main contributor to another blood
stain, with the victim a minor contributor. The DNA testing also revealed that
7 A-0600-17 both the aunt and the boyfriend were excluded, and that defendant was the main
contributor of the blood found on the cut wires in the victim's car.
No DNA was present on the left-hand glove. As a result, on April 13,
2015, defendant filed another petition for PCR, supported by a DNA, serology,
and criminalistics expert. He sought the vacation of his convictions, further
DNA testing, a new trial, or dismissal of the charges against him. Defendant
claimed not only that the judge had improperly excluded his experts at trial, but
he had improperly prevented him from exploring the criminality of the officers
involved, as well as the status of the victim's boyfriend. In addition, defendant
argued the new DNA test results indicating that only DNA belonging to the
victim was found on the right glove meant that he was entirely innocent and his
confession entirely false, while one of the principal officers in the investigation
was "a serial mobster[,]" "a depraved monster[,]" and "[a] dirty cop[,]" who
acted as a "mastermind" in framing defendant.
Defendant contended that the State's entire case rested upon him having
worn the recovered gloves, and since DNA did not establish that he had, it meant
that an officer engaged in unlawful conduct, including planting evidence taken
from the crime scene. He further contended that his innocence was supported
by the absence of semen in vaginal swabs from the victim. Defendant's expert
8 A-0600-17 report stated that since defendant's DNA was not found on the right glove, that
meant he did not wear it, and since no DNA traces were found on the left glove,
or on the inside of the plastic bag in which he allegedly transported his clothing
to hiding places, or on the belt used to choke the victim, more DNA testing
should be conducted. The State opposed the application on the basis that the
test results were merely cumulative to the proofs presented at the two trials,
would not change the jury's verdict, and ignored the crucial fact that only
defendant's blood was found on the cut wires in the victim's car.
Judge Margaret M. Foti heard oral argument, denying relief on August 29,
2017. Now on appeal, defendant raises the following points:
POINT I
EVIDENTIARY HEARINGS ARE REQUIRED BASED ON APPELLANT'S PRIMA FACIE SHOWING THAT FACTS SUPPORTING HIS PETITION FOR POST-CONVICTION RELIEF WARRANT FURTHER DEVELOPMENT AND THE MERITORIOUS DEFENSES ASSERTED INVOLVE FACTS AND EXPERT OPINIONS WHICH ARE GENERALLY OUTSIDE OF THE TRIAL AND APPELLATE RECORD.
POINT II
THE PCR COURT FAILED TO COMPREHEND THE SIGNIFICANCE OF NEWLY AVAILABLE STR DNA TEST RESULTS AND ABUSED ITS DISCRETION IN FAILING TO HOLD
9 A-0600-17 EVIDENTIARY HEARINGS, PRECLUDING SCIENTIFIC EVIDENCE, AND REFUSING TO ORDER ADDITIONAL DNA TESTING.
POINT III
THE PCR COURT ABUSED ITS DISCRETION IN DENYING DISCOVERY AND A PLENARY HEARING TO FURTHER DEVELOP EVIDENCE OF THIRD-PARTY GUILT.
POINT IV
THE PCR COURT ABUSED ITS DISCRETION IN FAILING TO ORDER ADDITIONAL SCIENTIFIC TESTING.
POINT V
THE TRIAL COURT WOULD NOT HAVE PRECLUDED APPELLANT'S EXPERT AND SCIENTIFIC EVIDENCE HAD THE STR DNA EVIDENCE BEEN AVAILABLE AT THE TIME.
POINT VI
PROSECUTORIAL MISCONDUCT IN THE FORM OF BRADY VIOLATIONS, FALSE TESTIMONY THAT REMAINS UNCORRECTED TO THIS DAY, AND INTENTIONAL TAMPERING AND DESTRUCTION OF EXCULPATORY PHYSICAL EVIDENCE DENIED APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT VII
SUPPRESSION OF THE ALLEGED CONFESSION IS REQUIRED DUE TO VIOLATIONS OF THE
10 A-0600-17 FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS.
POINT VIII
THE PROCEDURAL BAR DOES NOT PRECLUDE APPELLANT'S PCR CLAIMS.
POINT IX
APPELLANT ASSERTS A FREE STANDING ACTUAL INNOCENCE CLAIM ON PCR.
I.
We address defendant's arguments by combining the issues he raises.
Rule 3:22-12(a)(1)(A) provides that a first petition for PCR must be filed no
more than five years after conviction unless a defendant can demonstrate
excusable neglect and the reasonable probability that, if his factual assertions
were true, enforcement of the time bar would result in a fundamental injustice.
The rule further provides that a defendant may file a first PCR petition within
one year of the recognition of a new constitutional right or of a factual predicate
for relief that could not have been discovered earlier through reasonable
diligence. R. 3:22-12(a)(1)(B). The trial court should relax the time bar only in
exceptional circumstances and when the error complained of "played a role in
the determination of guilt." State v. Mitchell, 126 N.J. 565, 580 (1992); accord
11 A-0600-17 State v. Nash, 212 N.J. 518, 547 (2013); State v. Afanador, 151 N.J. 41, 52
(1997).
Defendant's asserted reason for the late filing, that appellate counsel failed
to advise him of his right to seek PCR and of the applicable filing deadline, lacks
merit. It is well-established that ignorance of the law does not equate to
excusable neglect. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div.
1998); accord State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div. 1999)
(difficulty reading and writing and defendant's ignorance of law did not excuse
late filing).
In addition to defendant's failure to establish excusable neglect, many of
the points raised in his petition are barred because, pursuant to Rule 3:22-5, they
were previously addressed in prior appellate and trial court decisions, or could
have been resolved on the direct appeal. These include: (1) the allegation the
prosecutor engaged in misconduct during opening and closing statements; (2)
that defendant was improperly precluded from presenting evidence that the
victim's boyfriend was the actual perpetrator based in part on the presence of the
victim's boyfriend's "bloody" fingerprint on the utensil drawer; (3) error in the
jury charge; (4) that defendant's confession was coerced and he should have been
granted a rehearing after it was "revealed" that he was handcuffed while in police
12 A-0600-17 custody; (5) the physical evidence should have been suppressed; (6) the jury was
prejudiced and engaged in misconduct; (7) the serology books were doctored by
police and the prosecutor; (8) the prosecutor presented perjured testimony
regarding photos taken of the victim's car; (9) other defense witness testimony
was wrongfully precluded; (10) the DNA evidence was unreliable; and (11) the
judges who presided over his prosecution were biased against him.
Defendant attempts to gain consideration of these issues a second, third,
or fourth time, in part by arguing that appellate counsel was ineffective for
failing to raise them. In order to establish that, pursuant to the familiar standard,
defendant would have to show not only the particular manner in which counsel's
performance was deficient, but also the manner in which the deficiency
prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
694 (1984); State v. DiFrisco, 137 N.J. 434, 457 (1994); State v. Fritz, 105 N.J.
42, 58 (1987). A defendant must not make bald assertions, but must allege facts
sufficient to demonstrate that his or her counsel's performance was substandard.
State v. Porter, 216 N.J. 343, 355 (2013); Cummings, 321 N.J. Super. at 170.
Defendant has entirely failed to do more than make bald assertions and
engage in broad-ranging speculation. This simply is not enough to satisfy his
13 A-0600-17 prima facie burden. Porter, 216 N.J. at 355; Cummings, 321 N.J. Super. at 170.
Many of the claims are simply factually inaccurate.
There has never been any proof, for example, that the victim's boyfriend
left a bloody fingerprint on a utensil drawer. In fact, to the contrary, the only
evidence in the record regarding his fingerprint on the drawer was proffered by
the initial DNA expert, who testified it was taken from an area on which no
blood was found, and the print itself had no blood.
Defendant may be unhappy with the outcome of the Miranda motion. But
years of litigation have still not made his confession one that should have been
suppressed.
Defendant is not entitled to an evidentiary hearing as he has not
established "a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, [would] ultimately succeed
on the merits." R. 3:22-10(b); Porter, 216 N.J. at 355; State v. Preciose, 129
N.J. 451, 462-64 (1992). Thus, this attack upon the judge's dismissal of his 2006
PCR petition—essentially a belated appeal—lacks merit. R. 2:11-3(e)(2).
II.
With regard to the 2015 PCR petition, Judge Foti correctly concluded that
defendant had not established all of the eight conditions required for additional
14 A-0600-17 DNA testing under N.J.S.A. 2A:84A-32a(a). Again, by seeking to test more
items, defendant is in actuality engaging in a belated appeal of the 2007 decision.
Furthermore, as Judge Foti pointed out, the jury convicted defendant
despite his argument at trial that the absence of DNA on the left glove mandated
acquittal. Additional DNA testing would serve no purpose. The finding, for
example, that no trace of defendant's DNA was found on the inside of the right
glove is consistent with his statement to police that the victim pulled it off during
the struggle. The jury heard that testimony before convicting defendant.
Defendant's claims regarding police and prosecutorial misconduct are
nothing more than baseless allegations. No new trial should have been granted
based on purely speculative assertions.
N.J.S.A. 84:32a(d)(5) provides in part that a trial court must deny a motion
for DNA testing unless
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.
Under subsection (5), a defendant need not prove that the DNA results
will be favorable; rather, he or she need only establish a reasonable probability
that if the DNA results are favorable to him or her, a new trial would be granted.
15 A-0600-17 State v. Peterson, 364 N.J. Super. 387, 396-97 (App. Div. 2003). A defendant
is entitled to a new trial where "the State's proofs are weak, when the record
supports at least reasonable doubt of guilt, and when there exists a way to
establish guilt or innocence once and for all." State v. Reldan, 373 N.J. Super.
396, 402 (App. Div. 2004) (quoting State v. Thomas, 245 N.J. Super. 428, 436
(App. Div. 1991)).
Defendant claims the new DNA test results prove his innocence—a claim
that does not require much discussion. R. 2:11-3(e)(2). The new DNA results
were inconsequential. Their lack of significance is highlighted by the findings
regarding the cut wires and black pants—which corroborated, not refuted, his
confession. Thus, his motion for more DNA testing was properly denied.
III.
Defendant does not show excusable neglect or any fundamental unfairness
that would impact application of the rules that bar further consideration.
Appellate counsel was not ineffective because the issues defendant contends he
mishandled had no merit from inception. The deficiencies defendant now
alleges fail to meet either the performance or prejudice prongs of Strickland.
16 A-0600-17 Affirmed.
17 A-0600-17