NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3712-14T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
NATHANIEL HARVEY,
Defendant-Respondent. _________________________________________
Argued February 14, 2017 – Decided August 28, 2017
Before Judges Messano, Espinosa and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 85-11-1568.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
Eric V. Kleiner argued the cause for respondent.
PER CURIAM
After being twice convicted by a jury and sentenced to death
for the June 1985 murder of Irene Schnaps, defendant Nathaniel
Harvey filed a pro se petition for post-conviction relief (PCR) alleging the ineffective assistance of counsel (IAC) during the
second trial. The matter was transferred to Union County because
one of defendant's trial counsel had become a Superior Court judge
in Middlesex County. PCR counsel filed various motions seeking
additional discovery and forensic testing. The PCR court denied
defendant's petition without an evidentiary hearing.
After granting defendant's direct appeal and motion for
further forensic testing, the Supreme Court summarily remanded the
matter for an evidentiary hearing and ordered the PCR court to
"consider the petition . . . anew . . . ."1 The parties stipulated
to the issues to be litigated at the hearing, which included not
only defendant's IAC claims, but also that the State failed to
provide exculpatory evidence, in violation of Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218
(1963), and newly discovered evidence compelled a new trial.
The hearing took place before Judge Stuart L. Peim, with
testimony taken on sixty-two days between April 2011 and February
2014. In a comprehensive, written opinion dated March 11, 2015,
Judge Peim granted defendant's petition, staying his order pending
1 The Court originally retained jurisdiction, and entered an additional order further detailing the procedure and scope of the forensic testing. After defendant's death sentence was commuted, the Court ordered that all further appellate proceedings following the evidentiary hearing should be filed in our court.
2 A-3712-14T3 our decision on the State's motion for leave to appeal, which we
later granted.
I.
We provide some necessary context to the specific issues
raised in the evidentiary hearing before Judge Peim by relying on
the facts as presented in the Court's opinions in defendant's two
direct appeals, State v. Harvey, 121 N.J. 407, 411-12 (1990)
(Harvey I), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L.
Ed. 2d 268 (1991), and State v. Harvey, 151 N.J. 117, 146 (1997)
(Harvey II), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L.
Ed. 2d 683 (2000).
A concerned co-worker found the victim's lifeless body in the
apartment where she lived alone in Plainsboro. Harvey II, supra,
151 N.J. at 137-38. There were no signs of forced entry, but the
bedroom where the victim was found evidenced a struggle, with
bloodstains on the floor, a towel, the mattress and box spring,
and a cardboard box protruding from under the bed. Id. at 138.
The victim sustained severe wounds to her head and face, and,
although her back was covered in blood, there was no blood on the
front of her body, suggesting someone had attempted to wipe it
clean. Ibid. Police found a bloody sneaker print on a pillowcase,
as well as an empty Seiko-LaSalle watch box, empty camera box and
3 A-3712-14T3 empty jewelry box. Ibid. The victim's pocketbook was open and
empty in the bathroom. Ibid.
Contemporaneously with the murder, police in nearby West
Windsor had been investigating a string of burglaries and sexual
assaults. Id. at 139. Defendant fit the physical description of
the perpetrator, who usually travelled by foot or on a bike. Ibid.
He was detained, identified by one of the burglary victims, and
he confessed to committing several burglaries and a sexual assault.
Ibid. The next day, while performing a consent search of
defendant's car, police found a Seiko-LaSalle watch. Id. at 139-
40.
During interrogation following his arraignment, defendant
confessed to the murder of Schnaps. Id. at 140. On defendant's
first appeal, the Court suppressed the confession because of a
Miranda2 violation, but declined to consider defendant's claim that
his confession was involuntary. Harvey I, supra, 121 N.J. at 425.
It reversed defendant's conviction on this and other grounds.
Harvey II, supra, 151 N.J. at 141-42.
Without defendant's confession available for the second
trial, the State relied heavily on DNA and serological evidence.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 A-3712-14T3 Id. at 137, 142. Philip Beesley, a forensic scientist employed
by the New Jersey State Police, opined that bloodstains on the box
spring and cardboard box had genetic markers and enzymes consistent
with defendant's blood, not the victim's. Id. at 143. He also
stated that the enzyme phenotype found in these bloodstains was
found only in African-Americans; defendant is an African-American
and the victim was not. Ibid.
Another State Police scientist, Theodore Mozer, testified
that a hair recovered from the victim's back did not belong to her
and had "Negroid" characteristics consistent with defendant's
control hair. Ibid. He also examined sneakers seized when
defendant was arrested and from a search of his wife's apartment
and stated one sneaker "could" have made the bloody sneaker print
left at the scene. Ibid.
Lastly, the State produced two DNA experts from Cellmark
Diagnostic Laboratories, Julie Cooper and Dr. Charlotte Word.
Ibid. They testified that the blood samples collected from the
crime scene were "genetically comparable to defendant's DNA," and
"defendant's genotypes for the genetic markers examined were
common only to one-in-1,400 African Americans." Id. at 143-44.
Defendant did not testify, but produced two witnesses. Id.
at 144. One, from Seiko, said the company produced thousands of
watches like the one seized from defendant's car. Ibid.
5 A-3712-14T3 Defendant's DNA expert, Dr. Robert Shaler, said the Cellmark tests
were "scientifically indefensible." Ibid. He opined that the
genetic makeup of the blood found at the scene was present in "one
in fifty to one in 200 African-Americans." Ibid.
Based on this evidence, the jury convicted defendant, and,
following the penalty phase, the judge sentenced defendant to
death. Id. at 144-46.
II.
Judge Peim heard the testimony of seventeen witnesses,
including, among others, the two attorneys who represented
defendant at the second prosecution, the assistant prosecutor who
tried the first case, and Beesley, Mozer, and Dr. Word. Defendant
produced his own DNA experts, and the State produced additional
expert testimony regarding DNA test results conducted after the
second trial.
Judge Peim found that senior defense counsel had
approximately six years' experience in the Public Defender's
Office prior to being assigned defendant's case in 1992. She had
tried two other murder cases, but had never tried a death penalty
case or one involving the type of forensic evidence produced at
defendant's second trial; she had no training in either death
penalty cases or forensics. Junior defense counsel had been
assigned to the trial section of the Public Defender's Office
6 A-3712-14T3 since 1991, approximately three years before the second trial,
and, although he was assigned to handle the forensic evidence, he
received little or no supervision from co-counsel.
Judge Peim considered defendant's IAC claims as they related
to the critical forensic evidence at the second trial, i.e., the
serological and DNA evidence, the "Negroid" hair, and the bloody
sneaker print. As appropriate, he referenced the relationship
between this evidence and Peter Stohwasser, an individual who
lived in the same apartment complex as the victim, knew her, and
had a history of domestic violence. Stohwasser was the "initial
suspect in the case," and the subject of defendant's asserted
defense of third-party guilt. Harvey II, supra, 151 N.J. at 203-
04.
A.
Regarding the bloody sneaker print, Judge Peim observed that
the State produced a "sneaker expert" at defendant's first trial,
Dr. Claude Owen Lovejoy, who completely ruled out two of the three
Pony-brand sneakers seized during the investigation and said it
was "highly improbable" that the third pair made the print. Dr.
Lovejoy also provided expert testimony as to the stature of the
person who left the footprint. Harvey I, supra, 121 N.J. at 426.
On the first direct appeal, in addressing evidential issues in the
event of a retrial, the Court concluded Dr. Lovejoy's "methodology
7 A-3712-14T3 was not of sufficient scientific reliability," with respect to
comparing sneaker prints with stature, and he "may not testify as
an expert" on retrial. Id. at 429.
However, we agree with Judge Peim that the Court's holding
in Harvey I did not foreclose the potential use at the second
trial of Dr. Lovejoy's opinion that none of the seized sneakers
likely made the footprint. Notably, the Court indicated that
expert testimony was not required to compare a shoe print and the
shoe alleged to have made that print, nor was it required to
establish the proposition that shorter people tend to have smaller
feet. Id. at 427. Also, Mozer's expert testimony at the second
trial was certainly "inconsistent" with the State's evidence at
the first trial. Judge Peim found defense counsel should have
either moved Dr. Lovejoy's testimony into evidence, called him as
a defense witness, or hired their own expert, but they did none
of these things. Instead, the cross-examination of Mozer regarding
the bloody footprint was very brief.
Judge Peim then considered the effect of this failure in the
context of defendant's third-party guilt claim. He noted defense
counsel were provided with the sworn testimony of a police
detective in support of a search warrant for Stohwasser's
apartment. The judge noted it was unclear from the testimony at
the PCR hearing whether trial counsel had read this discovery,
8 A-3712-14T3 but, "[b]ased on the fact that useful information [in the
discovery] was not used by defense counsel, one must conclude it
was not read, or read and forgotten."
In the sworn testimony to obtain the search warrant, the
detective claimed the bloody footprint was made by a Nike sneaker,
the type worn by Stohwasser, not defendant. The detective also
characterized Stohwasser as "deceptive" when questioned about the
victim's death. Moreover, Judge Peim observed that Mozer
identified the bloody print as being made by a Pony sneaker only
after defendant was arrested, although an investigator identified
a Pony logo on the print before defendant's arrest.
In fact, Mozer's handwritten notes predating defendant's
arrest indicated the footprint was "incomplete — no further
information could be developed." Judge Peim found that defense
counsel never asked for "all documents which relate[d] in any way
to the analysis of the bloody footprint." Regardless, the judge
found these notes should have been turned over by the State under
Brady. Judge Peim also found Mozer could have been effectively
cross-examined with his own notes, and, further, that defense
counsel never questioned Mozer about the fact that no blood was
found on any of the seized sneakers, even though "[t]he crime
scene was covered in blood, [and] the killer left a bloody
footprint."
9 A-3712-14T3 B.
Regarding the "Negroid hair" recovered from the victim's
back, the Court rejected defendant's argument raised on the first
appeal that Mozer was unqualified and unfamiliar with accepted
standards for comparison. Harvey I, supra, 121 N.J. at 429-30.
Mozer testified at the first trial that "the hair had come either
from defendant or from '[a]nother individual who had [the] same
microscopic characteristics.'" Id. at 429. On defendant's second
appeal, the Court was unpersuaded that the prosecutor's
examination of Mozer was improper. Harvey II, supra, 151 N.J. at
217-18.
Judge Peim considered Mozer's testimony at the PCR hearing,
in which the expert acknowledged that his analysis of the two
hairs was highly subjective.
Q. [By judge]: I'll know it when I see it, that's the analysis.
A. [Mozer]: I'm afraid so, Judge.
The hair itself was never produced at either trial, and Judge
Peim found that "[w]hen the hair became missing and under what
circumstances [was] not clear." Trial counsel in the second trial
never asked to see the hair or other evidence of Mozer's analysis,
such as microscopic slides, photographs, or notes. At the PCR
10 A-3712-14T3 hearing, both defense counsel testified they did not know the hair
was missing.3
Judge Peim concluded trial counsel should have demanded the
hair and all discovery relating to the hair, or, alternatively,
they should have retained an expert to challenge the reliability
of Mozer's analysis. The judge also found that the State "should
have specifically disclosed that the hair was missing." He
reasoned that if, as the State alleged, trial counsel knew the
hair was missing, counsel "were ineffective in how they handled
the hair situation." The judge concluded defense counsel should
have sought to have any testimony about the hair excluded, or,
failing that, cross-examined Mozer about the missing hair, lack
of notes or photographs, and sought an adverse inference charge.
Yet, they "did not pursue any of these avenues."
C.
Judge Peim carefully considered trial counsel's handling of
the DNA evidence at the second trial. He recognized that
Cellmark's DNA analysis of the bloodstained box spring was the
"smoking gun," because it concluded the stain's genetic markers
were a combination of the victim's and defendant's blood. At the
same time, he referred to a letter from Dr. Shaler to defense
3 In a post-trial certification, however, senior trial counsel said she recalled the hair itself was lost prior to the retrial.
11 A-3712-14T3 counsel sent in 1994, which definitively stated that based upon
serological (blood-type (A/B/O) testing), the bloodstain on a
cardboard box found under the bed and immediately below the stained
box spring could not have come from either defendant or the victim.
Critically, at the second trial, Beesley testified that the
blood from the box spring had dripped onto the cardboard box.
However, in very limited cross-examination, he was never
questioned about A/B/O testing and any inconsistency between the
two stains. As Judge Peim recognized, if Beesley acknowledged
that based upon the A/B/O testing the stain on the cardboard came
from neither defendant nor the victim, "[t]his would have
established that there had to be a third bleeder at the scene."
More importantly, with respect to the theory of a third
bleeder, the judge cited Cellmark's acknowledgment that it was
generally impossible to determine DNA types of individual donors
when three or more donors were present by using the specific
analyses it employed. Yet, Judge Peim found trial counsel failed
to challenge Cellmark's assumption that there were only two donors
to the bloodstain on the box spring. Judge Peim specifically
addressed this in the context of the opinion in Harvey II, in
which, based on the record then before it, the Court rejected
defendant's "third-person" argument as "more theoretical than
real." 151 N.J. at 184.
12 A-3712-14T3 Judge Peim also considered a second assumption made by
Cellmark, i.e., there were equal amounts of the victim's blood and
defendant's blood in the stain. He noted Beesley's own report
indicated most of the blood found at the scene was "genetically
compatible" with the victim. He also noted serious questions
regarding the scientific reliability of Cellmark's conclusions in
light of the testimony of defendant's DNA experts at the PCR
hearing.
Judge Peim acknowledged that some of Dr. Shaler's testimony
at the second trial rebutted the conclusions reached by Cellmark,
and that despite very short cross-examination, trial counsel
elicited an admission from Dr. Word that it could not be
conclusively determined whether the stain on the box spring came
from more than two people. Ultimately, however, the judge
determined "[t]here were avenue[s] to attack the DNA and serology
analysis that were not used . . . and should have been[,]" as they
were disclosed directly in correspondence from Dr. Shaler to
defense counsel.
D.
Lastly, Judge Peim considered trial counsels' performance
regarding the assertion of third-party guilt. He noted that senior
counsel's opening statement claimed the State's investigation
stopped short of proving that defendant, "to the exclusion of
13 A-3712-14T3 anyone else," killed the victim. One of the lead investigators
in the case, James O'Brien, testified that law enforcement
eliminated Stohwasser as a suspect after items seized from his
apartment tested negatively for the presence of blood, Stohwasser
had no footwear that matched the bloody foot print on the
pillowcase, a Negroid hair was discovered at the scene, and
Stohwasser passed a polygraph. Harvey II, supra, 151 N.J. at 203-
206. Trial counsel asked for a mistrial based upon this reference
to a polygraph, but the judge gave a curative instruction instead.
The Court concluded any prejudice was "minimal." Id. at 206.
However, the PCR proceedings revealed that Stohwasser had not
passed the polygraph. In fact, the sworn testimony supporting the
search warrant of Stohwasser's home indicated the opposite.
Defense counsel had this information in the discovery provided by
the State.
At the PCR hearing, O'Brien testified the prosecutor told him
in advance that he was going to ask about the polygraph, and he
claimed he testified truthfully, i.e., he believed, based on
conversations with other investigators, that Stohwasser actually
did pass the test.4 Senior defense counsel testified at the PCR
hearing that she essentially abandoned the third-party guilt claim
4 O'Brien was not the investigator whose testimony secured the search warrant.
14 A-3712-14T3 once the jury heard Stohwasser had passed a polygraph. Her
decision was further influenced by the prosecutor's warning that
if she explored the third-party guilt claim, he would seek to have
defendant's confession admitted, since in Harvey I the Court never
addressed the voluntariness issue.
More importantly, defense counsel never asked for the
polygraph file in discovery. It revealed that the polygraphist
concluded Stohwasser was deceptive as "to all questions asked
including when he denied being involved in [the] murder."
Judge Peim listed six other statements in the testimony
supporting the search warrant, in addition to the "Nike" sneaker
statement, which supported the State's proofs that probable cause
existed to believe Stohwasser murdered the victim. These included
Stohwasser's desire to have a romantic relationship with the
victim, even though she was not interested, prior incidents of
domestic violence and damage to property, and that Stohwasser
lived in the same apartment complex.
Judge Peim acknowledged it was unlikely the results of the
polygraph test would have been admitted at the second trial, but
defendant could have impeached O'Brien's credibility by using the
prior sworn testimony. He also noted O'Brien's testimony at trial,
that police found no items containing blood in Stohwasser's home,
was false, since police actually seized a quilt that tested
15 A-3712-14T3 positively for human blood. Additional analysis could not develop
further identification of the blood, and authorities returned the
quilt to Stohwasser before the first trial.
E.
Judge Peim concluded defendant had not received "adequate
assistance of counsel as guaranteed by the Sixth Amendment."
Noting again the State's reliance on serological and DNA evidence,
the judge concluded trial counsel had "strong and more viable"
means to "rebut and attack this evidence which were not utilized
. . . ." He determined these "approaches would have been obvious
from a careful review" of discovery and the record from the first
trial, including Dr. Lovejoy's testimony about the sneaker print,
the investigator's testimony in support of the Stohwasser search
warrant, lab tests done on the quilt seized from Stohwasser's
home, Beesley's blood-type analysis of the bloodstains at the
crime scene, and correspondence from defense DNA experts at trial.
Judge Peim also concluded that trial counsel failed to
"request items from the State which any experienced criminal lawyer
would have asked for," including the polygraph file, and all
documents regarding the bloody footprint and the "Negroid hair."
He found that "there is a reasonable probability that but for
these deficiencies . . . the result of the trial would have been
different." He granted defendant's petition.
16 A-3712-14T3 III.
Before us, the State argues in a single point:
POINT I
THE COURT BELOW IMPROPERLY USED HINDSIGHT TO RULE THAT TRIAL COUNSEL WAS INEFFECTIVE IN THE 1994 RETRIAL.
We have considered the State's contention, in light of the
considerable record from the evidentiary hearing and applicable
legal standards. We affirm substantially for the reasons expressed
by Judge Peim. We add only the following.
To establish an IAC claim, a defendant must satisfy the two-
prong test formulated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). First, he must demonstrate "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed
. . . by the Sixth Amendment." Id. at 52 (quoting Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
To satisfy prong one, [a defendant] ha[s] to "overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." "[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is 'virtually unchallengeable.'" Mere dissatisfaction with "'a counsel's exercise of judgment'" is
17 A-3712-14T3 insufficient to warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (third alteration in original) (citations omitted).]
Second, a defendant must prove that he suffered prejudice due
to counsel's deficient performance. Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must
show by a "reasonable probability" that the deficient performance
affected the outcome. Fritz, supra, 105 N.J. at 58. "'A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583
(2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one
prong of the Strickland-Fritz standard, but not the other, his
claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280
(2012).
"Our standard of review is necessarily deferential to a PCR
court's factual findings based on its review of live witness
testimony. In such circumstances we will uphold the PCR court's
findings that are supported by sufficient credible evidence in the
record." Nash, supra, 212 N.J. at 540 (citing State v. Harris,
181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.
18 A-3712-14T3 2973, 162 L. Ed. 2d 898 (2005)). However, we review the PCR
court's legal conclusions de novo. Id. at 540-41.
The State does not contend, nor could it, that Judge Peim's
factual findings were not supported by substantial credible
evidence in the record. Instead, it argues first that the judge
"essentially ruled that [defense counsel] could have been better."
We disagree.
Judge Peim cited specific shortcomings that demonstrated
counsels' performance was deficient. This included the failure
to seek discovery on critical issues in the case, as well as the
inability to consider the significant implication of what was
actually contained in some of the discovery defendant did receive.
We agree with the judge's legal conclusion that counsels'
performance was deficient.
The State next argues that Judge Peim's "analysis [was] barren
of any meaningful discussion of prejudice within the meaning of
Strickland and Fritz." We again disagree.
"Important to the prejudice analysis is the strength of the
evidence that was before the fact-finder at trial." Pierre, supra,
223 N.J. at 583. As noted, the State's case at defendant's second
trial was wholly tethered to the Negroid hair and the bloody
sneaker print, for which the only significant witness was Mozer,
and the serologic and DNA evidence. The only other important
19 A-3712-14T3 evidence was the empty watch box found at the scene and the watch
found in defendant's vehicle, which circumstantially tied
defendant to the victim.
Mozer's opinions were both somewhat equivocal and certainly
subject to effective attack, through the use of documentary
evidence which, in some instances, was available to defense
counsel, and in other instances, should have been produced by the
State but was not, or should have been requested in discovery.
Judge Peim notably did not conclude that defense counsel's
performance regarding the DNA evidence was in and of itself
deficient. As evidence adduced at the PCR hearing demonstrated,
there were significant advances in DNA technology in the
intervening years between defendant's second trial and the PCR
hearing. Defense counsel could not be deficient in failing to
raise arguments based upon the more specific science that was not
yet available. Additionally, at the PCR hearing the State produced
the results of new DNA testing performed in 2008 that substantiated
the critical conclusion that the stain on the box spring was the
combined DNA of two people, and the probability of defendant's
inclusion was even greater than testified to at trial.
However, the judge did not conclude that defendant's new DNA
testing supported a claim of actual innocence, or was newly
discovered evidence that warranted a new trial. See, e.g., Nash,
20 A-3712-14T3 supra, 212 N.J. at 549-50 (discussing PCR based upon newly
discovered evidence). Rather, Judge Peim concluded defense
counsel failed to appreciate the significance of other serological
evidence and the impact of that evidence upon Cellmark's
conclusions as testified to at the time of the second trial. In
short, we agree with Judge Peim. "Defendant's counsel's errors
were sufficiently serious so as to undermine confidence that
defendant's trial was fair, and that the jury properly convicted
him." Pierre, supra, 223 N.J. at 588.
Affirmed. We remand the matter to the Law Division for
further proceedings consistent with this opinion. We do not retain
jurisdiction.
21 A-3712-14T3