STATE OF NEW JERSEY VS. ROBERT THOMAS (92-07-0823, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-6021-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT THOMAS, a/k/a
KOFI BAYETE,
Defendant-Appellant.
____________________________
Submitted September 17, 2019 – Decided September 26, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 92-07-0823.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the briefs).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (John K. Mc Namara, Jr., Chief
Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
Defendant1 appeals from the June 19, 2018 Law Division order denying
his motion for a new trial based upon newly discovered evidence. We affirm.
I
In June 1993, a jury found defendant guilty of all counts of a ten-count
indictment that charged him with two counts of first-degree aggravated sexual
assault, two counts of second-degree burglary, and related charges. The trial
court sentenced defendant to an extended term of life imprisonment, with thirty-
five years of parole ineligibility.
The relevant events occurred in September and October, 1991, at the
Hensyn Village complex in Mount Olive Township. Defendant and his alleged
victims, S.A.2 and M.T., all resided in that complex. On October 12, 1991,
defendant used S.A.'s phone multiple times in her apartment during the day and
later appeared in her doorway at 3:20 a.m. Defendant put a knife to her throat
and proceeded to cover her mouth with a pillow. He entered her vaginally and
had difficulty maintaining an erection. The assault took place on S.A.'s bed.
After defendant left, S.A. noticed he cut her phone cord.
1
While in prison, defendant legally changed his name from Robert Thomas to
Kofi Bayete.
2
We use initials to protect the privacy of the victims.
A-6021-17T4
2
On October 23, 1991, M.T. reported defendant raped her. Similar to the
circumstances with S.A., defendant put a knife to her throat and then covered
her mouth with a pillow. Defendant had difficulty maintaining an erection and
cut M.T.'s phone cord before he left. M.T. immediately reported the incident to
police.
S.A. learned of M.T.'s rape and proceeded to file a police report against
defendant. Initially, she did not file a report out of fear and fled to her parents'
home in Connecticut. Both victims provided a description of defendant and
identified him at trial.
Body exemplars were taken from S.A., M.T., and defendant. Janice
Williamson, a technologist at CBR Laboratories, conducted the DNA test and
confirmed defendant was the source of the semen present at the scene of M.T.'s
sexual assault. Gail Tighe, a senior forensic scientist employed by the New
Jersey State Police, testified that the two pubic hairs recovered from S.A.'s
sheets matched defendant's pubic hair after conducting a microscopic
comparison.
Defendant appealed his conviction and sentence, and we affirmed. State
v. Thomas, No. A-6140-93 (App. Div. Nov. 6, 1996). The Supreme Court
A-6021-17T4
3
thereafter denied defendant's petition for certification. State v. Thomas, 149
N.J. 37 (1997).
Defendant filed a petition for post-conviction relief (PCR), which the Law
Division denied on January 17, 2001. We affirmed the trial court's order
denying PCR. State v. Thomas, No. A-5218-00 (App. Div. March 7, 2003), and
the Supreme Court denied certification. State v. Thomas, 177 N.J. 495 (2003).
In 2005, the Innocence Project represented defendant pro hac vice and
filed a motion to compel DNA testing on evidence related to M.T. found at the
crime scene. The DNA test confirmed defendant's DNA at the scene. The
Innocence Project later withdrew its representation.
In 2006, defendant filed a PCR petition, seeking to correct what he
claimed is an illegal sentence. He also sought a new trial and additional DNA
testing on two hair samples found in the apartment of S.A. The PCR court
denied the petition, finding the results of the DNA tests on the hair samples was
insufficient to warrant a new trial because the results were, at best, neutral and
not exculpatory. We affirmed the order denying PCR. State v. Thomas, No. A-
4103-09 (App. Div. July 19, 2012). The Supreme Court denied certification.
State v. Thomas, 213 N.J. 45 (2013)
A-6021-17T4
4
In 2009, defendant filed a pro se motion for an order permitting additional
DNA testing on two hair samples found in S.A.'s bedding. Mitochondrial DNA
tests conducted on the two hair samples excluded defendant from one hair
sample, but the other hair sample showed a 99.74 percent probability defendant
or a maternal relative matched the source.
In November 2009, Judge Thomas V. Manahan denied defendant's second
PCR petition, his motion for a new trial, and defendant's pro se motion to have
an expert retained to conduct additional DNA testing. Judge Manahan held the
DNA test results of the hair found on the mattress cover were insufficient to
warrant a new trial because the evidence was neutral rather than exculpatory.
We affirmed the order denying PCR and defendant's motions. State v. Thomas,
No. A-4103-09 (July 19, 2012).
In March 2017, defendant filed a motion for a new trial, alleging newly
discovered evidence. On June 15, 2018, following oral argument, Judge
Michael E. Hubner denied defendant's motion. He concluded the newly
discovered evidence "related to questioning the reliability of microscopic hair
analysis that [has] arisen many years after the defendant was convicted" did not
warrant a new trial. He opined that while defendant attempted to attack the
reliability of microscopic hair analysis, his argument still centered around the
A-6021-17T4
5
same question of whether evidence that excluded defendant as a source of a
single hair warranted a new trial. Judge Hubner held the trial court previously
adjudicated this question; as a result, defendant was procedurally barred from
raising this claim based on Rule 3:22-5.
Assuming for the purposes of defendant's motion that Tighe's testimony
regarding a match of the disputed hair was erroneous, Judge Hubner stated
defendant "has to come forward and demonstrate . . . there may be new evidence
that excludes him as the source of the solitary stray hair inside the victim's
bedroom was material." Since defendant failed to demonstrate the materiality
of this evidence, Judge Hubner found no "reasonable probability that the jury
would have reached a different verdict if it heard . . . this newly proffered
evidence regarding the reliability of the hair analysis." Judge Hubner further
explained mitochondrial and nuclear DNA testing replaced microscopic hair
analysis and the results of those tests were "consistent with the jury's conclusion
as to guilt."
Defendant then filed this appeal, presenting the following point of
argument:
DEFENDANT'S MOTION FOR A NEW TRIAL
BASED UPON NEWLY DISCOVERED EVIDENCE,
PERTAINING TO THE S.A. CONVICTIONS,
SHOULD HAVE BEEN GRANTED DUE TO THE
A-6021-17T4
6
DEBUNKED "SCIENCE" OF MICROSCOPIC HAIR
ANALYSIS.
By leave granted, defendant filed a supplemental brief, presenting this
additional point of argument:
DEFENDANT'S MOTION FOR A NEW TRIAL
BASED UPON NEWLY DISCOVERED EVIDENCE,
PERTAINING TO THE S.A. CONVICTIONS,
SHOULD HAVE BEEN GRANTED DUE TO GAIL
TIGHE'S LACK OF QUALIFICATIONS AND
CREDIBILITY.
II
Defendant contends the trial court erred in denying his motion for a new
trial because he was convicted in a proceeding that involved erroneous
microscopic hair analysis testimony that identified him as the source of the hairs
found on S.A.'s sheets.
"A motion for a new trial upon the ground of newly discovered evidence
is not favored and should be granted with caution by a trial court since it disrupts
the judicial process." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.
1984) (citing State v. Haines, 20 N.J. 438, 443 (1956)). "A motion for a new
trial is addressed to the sound discretion of the trial court, and its determination
will not be reversed on appeal unless there has been a clear abuse of that
A-6021-17T4
7
discretion." State v. Puchalski, 45 N.J. 97, 107 (1965) (quoting State v. Artis,
36 N.J. 538, 541 (1962)).
When seeking a new trial based on newly discovered evidence, our
Supreme Court requires the defendant to meet a three-part test:
To meet the standard for a new trial based on newly
discovered evidence, defendant must show that the
evidence is 1) material, and not "merely" cumulative,
impeaching, or contradictory; 2) that the evidence was
discovered after completion of the trial and was "not
discoverable by reasonable diligence beforehand"; and
3) that the evidence "would probably change the jury's
verdict if a new trial were granted." State v. Carter, 85
N.J. 300, 314 (1981).
[State v. Ways, 180 N.J. 171, 187 (2004).]
A defendant must satisfy "all three prongs" of the Carter test to obtain a
new trial. Ibid. The court must review the newly discovered evidence "with a
certain degree of circumspection to ensure that it is not the product of
fabrication, and, if credible and material, is of sufficient weight that it would
probably alter the outcome of the verdict in a new trial." Id. at 187-88. The
defendant bears the burden to show he is entitled to a new trial. State v. Johnson,
34 N.J. 212, 223 (1961) (stating "[f]ailure of a defendant to satisfy any one of
the three prerequisites of newly discovered evidence is sufficient to warrant a
denial of a motion for a new trial.").
A-6021-17T4
8
Under prong one of the Carter test, a defendant must show the evidence
"ha[s] some bearing on the claims being advanced." Id. at 188 (quoting State v.
Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). This requires the court to
engage in "an evaluation of the probable impact such evidence would have on a
jury verdict." Id. at 188-89. Because the issue of materiality inquires whether
the evidence would change the jury's verdict, the court should evaluate the first
and third prongs of the test together. Id. at 189.
Under prong two of the Carter test, "the new evidence must have been
discovered after completion of trial and must not have been discoverable earlier
through the exercise of reasonable diligence." Id. at 192. A defendant must "act
with reasonable dispatch in searching for evidence before the start of the trial."
Ibid.
Under prong three of the Carter test, a defendant must show the evidence
"would probably change the jury's verdict if a new trial were granted." Id. at
187 (quoting Carter, 85 N.J. at 314). "The power of the newly discovered
evidence to alter the verdict is the central issue . . ." before the trial judge. Id.
at 191. "[T]he test is whether the evidence if introduced is such as ought to have
led the jury to a different conclusion — one of probability and not mere
possibility[.]" Haines, 20 N.J. at 445.
A-6021-17T4
9
Here, Judge Hubner properly found defendant's first claim failed to satisfy
the first and third prongs of the Carter test. Both M.T. and S.A. provided in-
court identifications at trial. Although previously unsure, S.A. identified
defendant in court explaining she feared defendant would return to her home
and harm her child. The State also provided evidence revealing the virtually
identical attacks of S.A. and M.T. Moreover, the mitochondrial DNA results
were not dispositive in establishing S.A. incorrectly identified defendant
because the hair found in the fitted sheet tested more likely than not to belong
to defendant or to his maternal relative. The second hair provided greater
certainty defendant was in S.A.'s room on the night of the attack. Therefore, the
new evidence in the present case is not "material." Ways, 180 N.J. at 187.
The DNA evidence strongly suggests defendant not only was in S.A.'s
apartment but was also in her bed because his hair was found in her fitted sheet.
Thus, the evidence tends to corroborate the identification and "would [not]
probably change the jury's verdict if a new trial were granted." Id. at 187. In
fact, the evidence is stronger than the initial trial because there is a 99.74 percent
probability that defendant was the donor or the hair came from a relative on his
maternal side. Therefore, defendant's claim failed to satisfy the first and third
prongs of the Carter test.
A-6021-17T4
10
Defendant alleges that Tighe provided erroneous testimony because
subsequent mitochondrial testing results excluded him as a source of one of the
two hairs. He contends Tighe lacked qualifications as a trial expert because she
concealed the extent of her scientific education to secure a promotion and was
subsequently disciplined by her employer. Additionally, he argues Tighe
testified in an unrelated case regarding microscopic hair analysis, and the
defendant in that case was subsequently exonerated based on DNA testing.
In denying defendant's motion for a new trial, Judge Hubner concluded
that the impeachment of Tighe's trial testimony based on her alleged lack of
qualifications as an expert would not lead to a different verdict. He reasoned
Tighe's conclusion as to one of the hairs was correct based upon the
mitochondrial DNA results, which showed that defendant or a maternal relative
was the source of the hair found on the fitted sheet.
In the present case, defendant's second claim also fails the first and third
prongs of the Carter test. Tighe's partially inaccurate testimony is not
dispositive to establish that S.A. incorrectly identified defendant. Although the
mitochondrial DNA test results suggest that Tighe's microscopic hair analysis
testimony was partially inaccurate as to defendant being the source of one of the
two hairs, the results do not call into question the probative value of the other
A-6021-17T4
11
hair. Subsequent mitochondrial DNA testing excluded defendant as the source
of the hair found on S.A.'s mattress cover and inculpated defendant as the source
of the hair found on S.A.'s fitted sheet.
The newly discovered evidence does meet the second prong of the
standard for a new trial. Evidence regarding Tighe's subsequent disciplinary
history relating to her scientific education was not available at the time of
defendant's trial in 1993, nor was her erroneous testimony in an unrelated case
that led to the conviction of a defendant who was later exonerated.
While the questions related to Tighe's qualifications and credibility could
provide fodder for argument before the jury, this evidence is not exculpatory in
nature. Moreover, it does not undermine S.A.'s identification of defendant as
her attacker. The new evidence in the present case, therefore, is not "material."
Ways, 180 N.J. at 187.
Regarding the third prong of the Carter test, it is doubtful whether the new
evidence "would probably change the jury's verdict if a new trial were granted."
Ways, 180 N.J. at 187. The mitochondrial DNA test result indicating that
defendant was a source of the hair found on S.A.'s fitted sheet provides stronger
evidence of defendant's guilt than was presented at the time of trial. In light of
the later evidence supporting the accuracy of Tighe's testimony regarding the
A-6021-17T4
12
hair recovered from the fitted sheet, the later discovered evidence regarding
Tighe's qualification and credibility would probably not "change the jury's
verdict if a new trial were granted." Ways, 180 at 187. Judge Hubner correctly
denied defendant's motion for a new trial.
Affirm.
A-6021-17T4
13