STATE OF NEW JERSEY VS. DARWIN RODRIGUEZ- FERREIRA (10-10-1807, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 cas e and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1235-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARWIN
RODRIGUEZ-FERREIRA,
Defendant-Appellant.
______________________________
Submitted January 15, 2020 – Decided March 5, 2020
Before Judges Koblitz and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 10-10-1807.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Darwin Rodriguez-Ferreira appeals from the September 10,
2018 order vacating a prior order requiring a Frye1 hearing and ultimately
denying his post-conviction relief (PCR) petition without an evidentiary
hearing. We affirm.
Defendant raises the following issues on appeal:
POINT I: THE [PCR] COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR [PCR]
WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL REGARDING THE DNA
EVIDENCE.
A. LEGAL PRINCIPLES.
B. FAILURE TO ADEQUATELY
INVESTIGATE AND PREPARE FOR DNA
EVIDENCE.
C. FAILURE OF PCR COURT TO CONDUCT
AN EVIDENTIARY HEARING.
POINT II: THIS MATTER MUST BE REMANDED
FOR FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON [DEFENDANT]'S CLAIMS THAT HE WAS
DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.
1
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
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2
The facts underlying defendant's conviction are summarized in State v.
Rodriguez-Ferreira, No. A-0855-11 (App. Div. May 7, 2014) (Rodriguez-
Ferreira I) and State v. Rodriguez-Ferreira, No. A-1831-15 (App. Div. July 20,
2017) (Rodriguez-Ferreira II), and need not be repeated fully here other than
that the victim died of multiple stab wounds and certain evidence led police to
defendant.
After the victim died, the police discovered a blood-stained knife wrapped
in boxer shorts. The police also executed a search warrant of defendant's home
and discovered blood stains on the floor. This evidence was tested for DNA.
Defendant was indicted in October 2010 for first-degree murder, N.J.S.A.
2C:11-3(a)(1) or 2C:11-3(a)(2); fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d). At defendant's jury trial in the spring of 2011,
experts from the New Jersey State Police Office of Forensic Sciences DNA
laboratory and the New York City Office of the Chief Medical Examiner
(NYOCME)2 testified as to the results of the various DNA tests.
2
The NYOCME received, among other things, the following items from the
New Jersey State Police for DNA testing: "Nike sandal, left . . . Nike sandal,
right . . . [the boxer shorts and] a swab of blood stain received on [a] bathroom
floor."
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Standard DNA testing of the blood on the knife, a Nike sandal, and the
blood stain swabs taken from defendant's mother's home matched the victim's
DNA profile. The NYOCME expert testified that she conducted a "low copy
number" (LCN) DNA test of the boxer shorts that were wrapped around the
knife, which is a test conducted when "you're looking at a DNA sample that has
a . . . lower starting amount of DNA." She testified that she scraped the inside
waistband of the boxer shorts for skin cells to determine the "wearer." She was
able to construct a DNA profile from the scrapings, and concluded that
defendant's DNA matched as "the major contributor, the person who donated the
most DNA to the sample taken from the scrapings of the boxer shorts. . . ." She
also tested a blood sample from the boxer shorts and testified the sample "was a
mixture of DNA from [victim and defendant]."
On June 3, 2011, the jury convicted defendant of all the charges for which
he was indicted. Defendant was sentenced to a thirty-year term with a thirty-
year parole disqualifier on the murder conviction, and a consecutive eighteen-
month term on the unlawful possession of a weapon conviction.
We affirmed defendant's direct appeal but remanded it to the trial court to
articulate the reasons for imposing the consecutive sentence. Rodriguez-
Ferreira I, slip op. at 2.
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In August 2014, defendant filed a pro se petition for PCR, contending that
his trial counsel was ineffective because he failed to request a Frye hearing
challenging the testimony of the NYOCME expert regarding the LCN DNA test
results linking the boxer shorts to defendant. The trial court denied defendant's
PCR petition, finding that defendant was not entitled to an evidentiary hearing
because he failed to establish a prima facie case of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668, 694 (1984).
We reversed and remanded the case for a hearing so that "defense counsel
[could] explain what efforts were made to investigate this form of DNA testing
and why no Frye hearing was requested." Rodriguez-Ferreira II, slip op. at 8.
We further instructed that "[i]f [the] explanation is unsatisfactory, the court
should then hold a Frye hearing to determine whether the evidence is admissible
given today's scientific knowledge. . . . If the evidence is not deemed
admissible, defendant is entitled to a new trial." Ibid.
The PCR judge conducted an evidentiary hearing, where she found trial
counsel's explanations regarding efforts to investigate the DNA evidence
unsatisfactory and ordered a Frye hearing. However, prior to the Frye hearing,
the State's expert, Dr. Craig O'Connor, an Assistant Director in the NYOCME,
prepared a report after reviewing the previous DNA tests. As a result of that
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review, it became evident the boxer shorts that were the focus of the proceeding
were tested using a "high template" DNA testing procedure, a routine test
accepted in our courts. The discovery of this mistake of fact obviated the need
for a Frye hearing and the State moved to vacate the order.
The PCR judge heard argument and granted the motion to vacate the order
requiring a Frye hearing after it became clear the issue of the LCN DNA test of
the boxer shorts was moot. This appeal followed.
We defer to the PCR judge's factual findings made after an evidentiary
hearing. See State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citation
omitted). However, when the PCR court chooses not to conduct an evidentiary
hearing, we may review the factual inferences made by the PCR court de novo.
"We also review de novo the court's conclusions of law." Ibid. (citation
omitted). Therefore, when the PCR court elects not to conduct an evidentiary
hearing, it is within this court's authority to review both the courts factual
findings and legal conclusions de novo. Ibid.
The court noted our remand instructions were "specifically for the purpose
of determining the necessity of a Frye hearing with regard to the LCN DNA
testing of the boxers," and "if the defendant wishes to challenge his PCR on
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additional or alternative grounds he will need to do so by filing a new PCR
motion." We discern no error in her determination.
Affirmed.
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