STATE OF NEW JERSEY VS. DARNELL STEWART (05-08-3205, 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NOT FOR PUBLICATION WITHOUT THE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-5142-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL STEWART,

Defendant-Appellant.
______________________________

Submitted October 23, 2017 – Decided December 5, 2017

Before Judges Ostrer and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
05-08-3205.

Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah R. Terry, Designated
Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Darnell Stewart appeals from an April 29, 2015

order denying his petition for post-conviction relief ("PCR")
without an evidentiary hearing, and denying his motion for post-

conviction DNA testing. We affirm.

Following a jury trial in June 2006, defendant was convicted

of first degree kidnapping, first degree aggravated sexual

assault, second degree sexual assault, and second degree attempt

to commit sexual assault. Defendant was ultimately sentenced to

an aggregate sixty-year prison term with a sixty-year period of

parole ineligibility.

Defendant's conviction was upheld on direct appeal. 1 State

v. Stewart (Stewart I.), No. A-2745-06 (App. Div. April 29, 2009),

certif. denied, 200 N.J. 475 (2009). We incorporate by reference

the facts and procedural history set forth at length in our prior

opinion. Id., slip op. at 2-10.

I.

The following is a summary of the facts relevant to the

present appeal.

1
We remanded for resentencing, finding the trial court had
improperly imposed two extended terms, contrary to N.J.S.A. 2C:44-
5(a)(2). Because defendant previously had been convicted of sexual
assault, and was serving a special sentence of parole ineligibility
for life at the time he committed the present offense, on remand
the trial court imposed extended terms, without a period of parole
ineligibility pursuant to N.J.S.A. 2C:43-6.4(b). Defendant did
not appeal the revised sentence.

2 A-5142-14T4
 On October 23, 2014, at approximately 7:00 a.m., B.S.2 was

physically attacked and sexually assaulted in Camden. B.S.

testified her attacker hit her in the face, grabbed her by the

neck, and forced her to an area under a highway underpass. There,

defendant ordered B.S. to lower her pants and bend over. Her

attacker then rubbed his penis between her buttocks and vagina.

Specifically, B.S. "felt his head going into [her] vagina, but not

all the way, and that's when [she] made an attempt to run."

However, B.S.'s attacker grabbed her, "punched [her] like a

punching bag," and forced her back to the overpass area. This

second time, her attacker ordered B.S. to bend over, and attempted

to enter her, but could not achieve an erection, despite "[r]ubbing

against [her] butt again, trying to get it hard." B.S.'s attacker

stated he should have killed B.S., then left the area.

B.S. screamed for help but no one responded. She went home

and called the police who transported her to the hospital within

one hour of the attack. At the hospital, a forensic examination

was performed. B.S. suffered multiple contusions to her face,

back and chest, including a split eyebrow and split lip. The

Sexual Abuse Nurse Examiner ("SANE"), who examined B.S., testified

B.S. did not sustain any evidence of injury to her vaginal area.

2
We use initials to protect the victim's privacy.

3 A-5142-14T4
Secretions from B.S.'s vagina, cervix, "right scapula, right

buttocks, [and] right calf," were swabbed and collected as part

of the sexual assault examination.

The SANE testified pre-ejaculate serum contains sperm and can

be discharged whether or not a man ejaculates. On cross-

examination, defense counsel attempted to elicit from the SANE

testimony that it is highly unlikely, without ejaculation, fluid

would travel to the cervix. However, the SANE responded:

The penis does not have to be fully entered
into the vagina for serum to get in there.
So, if someone attempted to insert the penis
into the vagina, some pre-ejaculate fluid or
ejaculate could be deposited at the end of the
vagina and could migrate upwards towards the
cervix.

Forensic testing of DNA evidence contained in B.S.'s sexual

assault kit matched defendant's DNA. At trial a State Police

chemist, qualified as an expert in biological stain analysis,

testified that B.S.'s sexual assault kit contained vaginal, anal,

oral, and external genital specimens, head and pubic hair combings,

fingernail specimens, buccal controls swabs, debris and dried

secretions. She tested the vaginal and cervical samples but did

not test all of the specimens because she felt the samples she had

examined were sufficient "to generate a DNA profile." On cross-

examination, trial counsel elicited testimony that B.S.'s cervical

specimen contained more than an average quantity of sperm.

4 A-5142-14T4
 Six months after the assault, B.S. identified defendant from

a photo array. She was sixty-percent certain defendant was her

attacker. B.S. identified defendant in court and testified she

had never seen him before the day of the attack. Defendant called

an investigating police officer and defense investigator to

establish inconsistencies between B.S.'s testimony and her prior

statements.

Defendant did not testify at trial. At the pretrial

Sands/Brunson hearing, 3 the State indicated it would seek to

impeach defendant's credibility, if he elected to testify, by

adducing testimony about his multiple prior convictions, including

a second degree offense.4
5
During a pretrial Wade hearing, trial counsel first

suggested B.S. and defendant had engaged in sexual intercourse on

an unspecified "earlier date." Over trial counsel's objection,

the trial court ruled admissibility of defendant's alleged prior

3
State v. Sands, 76 N.J. 127, 141 (1978); State v. Brunson, 132
N.J. 377 (1993).
4
Because defendant's prior second degree conviction was for sexual
assault, the trial court "sanitized" all of his prior convictions.
Brunson, supra, 132 N.J. at 391. As such, the court limited the
State's line of questioning, had defendant testified, to "the date
of the conviction, the sentence imposed, and the degree of the
crime without mentioning the title of the conviction."
5
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).

5 A-5142-14T4
sexual relations with B.S. was governed by the Rape Shield Law.

N.J.S.A. 2C:14-7. Notwithstanding lack of notice, the court

afforded defendant the opportunity for a hearing, pursuant to the

statute, but trial counsel responded that his client did not intend

to testify, nor produce any evidence as to this issue. Rather,

trial counsel intended to cross-examine the victim and argue his

theory to the jury. In response to the court's inquiry as to when

the alleged sexual activity occurred, trial counsel responded,

"Judge, I don't know. I'm waiting for the victim to testify."

Because defendant would not avail himself of the procedures

required by the Rape Shield Law, the court ruled trial counsel

would be limited to arguing "it would be impossible for the crime

to have been committed because [defendant] did [not] have an

erection or he didn't ejaculate or did [not] leave any genetic

material without going . . . to the next step and saying they had

sex on some prior occasion." Nevertheless, during summation,

without objection by the State or interference from the court,

defense counsel implied defendant and B.S. had sex on a prior

occasion, that is, defendant "obviously and fully penetrated

[B.S.] and left his semen. But it was not under the circumstances

she described."

In January 2010, defendant filed a pro se PCR petition

alleging his trial counsel was ineffective for, among other things,

6 A-5142-14T4
failing to investigate alibi witnesses and failing to conduct an

effective cross-examination of the State's witnesses. PCR counsel

subsequently was appointed to represent defendant ("first PCR

counsel").

In September 2010, defendant sent correspondence to his first

PCR counsel which essentially incorporated a "supplemental letter

brief" to file on his behalf. Defendant claimed, without

certifying or providing details, that B.S. was a prostitute, and

a second DNA test would support his consensual sexual intercourse

"theory."

In November 2010, first PCR counsel filed an amended petition,

alleging appellate counsel was ineffective for, among other

things, "not raising denial of DNA testing on his direct appeal."

However, first PCR counsel did not file defendant's proposed

supplemental letter brief in any form.

On November 17, 2010, defendant sent a twenty-five-page

document to first PCR counsel, certifying the information therein

was "truthful to the best of his knowledge." Defendant asserted,

for the first time, he engaged in consensual sex with the victim

three days prior to the incident. He also claimed the victim was

a prostitute and that he paid her half of her fee in cash and half

with drugs in exchange for sex.

7 A-5142-14T4
 In May 2011, the first PCR judge denied relief, essentially

determining defendant's petition was unsupported by competent

evidence. As to defendant's claim that his appellate counsel was

ineffective for failing to raise "the denial of DNA testing," the

PCR judge found, "[t]he simple flaw in this argument is that there

was DNA testing in this case. And the results, which linked

defendant to the victim through sexual penetration, were never

disputed." Defendant appealed the first PCR court's decision.

Having found defendant's first PCR counsel failed to advance

his pro se arguments, we reversed and remanded for a new hearing

with new PCR counsel. State v. Stewart (Stewart II.), No. A-2210-

11 (App. Div. June 10, 2014).

In June 2014, new PCR counsel was assigned to represent

defendant ("second PCR counsel"). In July 2014, a forensic DNA

consultant hired by second PCR counsel, determined certain

specimens collected from the victim's body were never tested.

Those specimens were "anal swabs . . . external genital swabs . .

. [and] dried secretions collected from the exterior of the

victim's body" ("additional specimens").

In February 2015, defendant filed a pro se motion to compel

the State to produce specimen evidence for post-conviction DNA

testing. In March 2015, present PCR counsel filed a brief in

support of defendant's motion and PCR petition.

8 A-5142-14T4
 In a comprehensive oral opinion rendered on April 29, 2015,

following oral argument, Judge Frederick J. Schuck denied

defendant's motion and PCR petition.

Applying the well-established two-pronged Strickland-Fritz6

standard, Judge Schuck recognized

the defendant must allege facts sufficient to
demonstrate counsel's alleged substandard
performance supported by affidavits or
certifications based on the personal knowledge
of the affiant. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999).

With respect to this [requirement], a court
must indulge a strong presumption that
counsel's conduct falls within the wide range
of reasonable professional assistance or that
the challenged action might be considered
sound trial strategy. State v. Harris, 181
N.J. 391, 431 (2004) (quoting Strickland,
supra, 466 U.S. at 689, 104 S. Ct. at 2065,
80 L. Ed. 2d at 694-95.

6
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42,
58 (1987). In order to establish a case of ineffective assistance
of counsel, defendant must demonstrate a reasonable likelihood of
success under the two-pronged Strickland-Fritz test. A defendant
must show: (1) that counsel was deficient or made egregious errors,
so serious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment of the United States
Constitution; and (2) the deficient performance actually
prejudiced the accused's defense. Strickland, supra, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz,
supra, 105 N.J. at 52.

9 A-5142-14T4
 Considering this standard, the PCR judge rejected defendant's

argument trial counsel was ineffective for failing to secure

testing of the additional specimens. In so doing, the judge

"indulge[d] the strong presumption that the decision not to seek

DNA testing falls within the wide range of reasonable professional

assistance or might be considered sound trial strategy."

As to the first Strickland-Fritz prong, the PCR judge found

trial counsel utilized the DNA evidence to defendant's advantage

by claiming the attacker could not achieve an erection, penetrate

B.S., or ejaculate inside her. Among other reasons, the court

found testing the additional specimens could have been harmful to

defendant's case if defendant's DNA matched that contained in the

additional specimens.

As to the second Strickland-Fritz prong, the PCR judge found

defendant did not demonstrate prejudice because DNA testing of the

additional specimens would not have impacted the weight of the

evidence, that is, B.S.'s positive in-court and out-of-court

identifications of defendant, and her testimony that she had never

seen defendant prior to the day of the assault.

Recognizing trial counsel was unable to make "a sufficiently

specific proffer to warrant admissibility of a prior sexual act,"

the PCR judge likewise rejected defendant's argument trial counsel

was ineffective for failing to pursue a hearing pursuant to the

10 A-5142-14T4
Rape Shield Law. Judge Schuck observed defendant's specific

contention B.S. was a prostitute with whom he had consensual sex

three days prior to the assault, did not appear in the record

until defendant's November 17, 2010 correspondence to his first

PCR counsel. Citing trial counsel's response to the court when

the rape shield issue was discussed during the Wade hearing, the

PCR court found it apparent that trial counsel was unaware of

defendant's newly-minted "bald assertion."

Judge Schuck found defendant's remaining claims lacked merit,

including defendant's contention trial counsel failed to speak

with two purported alibi witnesses, George Bucks and Dawn Stewart. 7

Citing State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div.

2002), the judge observed defendant failed to support this claim

by an affidavit or certification of his witnesses. Moreover, the

court noted Dawn Stewart's pretrial statement to law enforcement

indicating she could not vouch definitively that defendant was at

her house the day of the assault.

Turning to defendant's motion for post-conviction DNA testing

pursuant to N.J.S.A. 2A:84A-32a, Judge Schuck carefully analyzed

the statute's requirements and the case law interpreting the

7
On appeal, defendant argues trial counsel failed to present "his
alibi witnesses, including his aunt, Dawn Stewart;" defendant does
not reference George Bucks.

11 A-5142-14T4
statute, concluding defendant's failure to satisfy two of the

eight requirements set forth in N.J.S.A. 2A:84A-32a(d)(1) - (8).

Specifically, defendant failed to demonstrate the additional

specimens were material to the issue of his identity pursuant to

N.J.S.A. 2A:84A-32a(d)(4). Nor could defendant show that if the

results were favorable, a motion for a new trial based upon newly-

discovered evidence would be granted pursuant to N.J.S.A. 2A:84A-

32a(d)(5).

Judge Schuck's rationale was similar to that supporting his

denial of defendant's PCR ineffective assistance of counsel

claims. Citing State v. Relden, 373 N.J. Super. 396, 407 (App.

Div. 2004), certif. denied, 182 N.J. 628 (2005), the judge found

favorable results would not obviate the facts that: defendant's

DNA was found inside B.S.'s vagina and cervix; B.S. positively

identified defendant; he could not prevail at a rape shield

hearing; and his defense that he had sex with B.S. on a prior

occasion was belated.

This appeal followed.

On appeal, defendant raises the following points for our

consideration:

POINT I

THE LOWER COURT'S ORDER THAT DENIED
DEFENDANT'S MOTION FOR POST-CONVICTION DNA

12 A-5142-14T4
TESTING MUST BE REVERSED BECAUSE [ ] DEFENDANT
MET ALL THE REQUIREMENTS SET FORTH IN N.J.S.A.
2A:84-32A(d) INCLUDING SUBSECTIONS (d)(4) AND
(d)(5)

A. [ ]Defendant Satisfied N.J.S.A. 2A:84A-
32a(d)(4) Because the Presence of Another
Man's DNA on the Victim's Body
Immediately After the Assault Would
Certainly Create a Material Dispute as
to the Identity of the Perpetrator

B. [ ]Defendant Satisfied N.J.S.A. 2A:84A-
32a(d)(5) Because There is a Reasonable
Probability That Favorable DNA Test
Results Would Entitle Him to a New Trial
Based Upon Newly[-]Discovered Evidence

POINT II

THE PCR COURT'S ORDER THAT DENIED DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF MUST BE
REVERSED BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
PROCEEDINGS BELOW

A. Trial Counsel's Failure to File a
Meritorious Rape Shield Motion
Constituted Ineffective Assistance of
Counsel

B. Trial Counsel's Failure to Obtain a DNA
Expert to Perform DNA Analysis on the
Untested Evidence Constituted
Ineffective Assistan[c]e of Counsel

C. Trial Counsel's Failure to Present
Defendant's Alibi Witnesses Constituted
Ineffective Assistance of Counsel

D. Trial Counsel's Failure to Investigate
the Facts and Research the Law
Constitute[d] Ineffective Assistance of
Counsel

13 A-5142-14T4
 POINT III

THIS COURT SHOULD REMAND THE MATTER FOR AN
EVIDENTIARY HEARING

II.

We first address defendant's PCR petition. The mere raising

of a claim for PCR does not entitle the defendant to an evidentiary

hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.),

certif. denied, 162 N.J. 199 (1999). Rather, trial courts should

grant evidentiary hearings and make a determination on the merits

only if the defendant has presented a prima facie claim of

ineffective assistance, material issues of disputed facts lie

outside the record, and resolution of the issues necessitates a

hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).

We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. State v. Preciose,

129 N.J. 451, 462 (1992). We review any legal conclusions of the

trial court de novo. State v. Nash, 212 N.J. 518, 540-41 (2013);

State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

"[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient

14 A-5142-14T4
to demonstrate counsel's alleged substandard performance."

Cummings, supra, 321 N.J. Super. at 170. Under the first prong,

the defendant must demonstrate that "counsel made errors so

serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong, the defendant must show "that counsel's

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Ibid. That is, "there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We have considered defendant's PCR contentions in light of

the record and applicable legal principles and conclude they are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

Judge Schuck expressed in his well-reasoned oral opinion. We add

the following remarks.

Trial counsel's decision to forego DNA testing of the

additional specimens was consistent with his well-executed trial

strategy. That strategy was to insulate his client from testifying

in light of defendant's lengthy criminal record. Although the

15 A-5142-14T4
nature of defendant's convictions was sanitized, had defendant

testified, the prosecutor undoubtedly would have attempted to

impeach his credibility by referencing his convictions for a second

degree offense, and multiple third and fourth degree offenses.

See N.J.R.E. 609. Without defendant's testimony, there was no

other way for him to introduce evidence of his purported prior

consensual sexual intercourse with the victim, and that her

attacker must have been a third party.

In light of the defense strategy, DNA testing of the

additional specimens was not a no-risk or clearly advantageous

option. Defense attorneys are required to provide the results of

such tests to the State. Rule 3:13-3(b)(2)(A). Had one or more

of the additional specimens matched defendant's DNA, counsel could

not have argued, as he did, that defendant was not the attacker

because the attacker's sperm did not reach B.S.'s cervix. Because

defendant's DNA was found on B.S.'s cervical and vaginal specimens,

defendant's DNA potentially could have been found in B.S.'s "anal

swabs . . . external genital swabs . . . [and] dried secretions

collected from the exterior of the victim's body." Without testing

the additional specimens, counsel was able to argue to the jury

B.S. and defendant likely had sex on a prior occasion.

Viewed in context, there is no support for a finding of

anything other than a reasonable strategic decision to forego DNA

16 A-5142-14T4
testing of the additional specimens. Even strategic choices made

after limited investigation are generally afforded great deference

and are assessed for reasonableness. Petrozelli, supra, 351 N.J.

Super. at 22. Trial strategy is clearly within the presumptive

discretion of competent trial counsel. State v. Coruzzi, 189 N.J.

Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983).

Thus, defendant's PCR claim based on trial counsel's failure to

hire a DNA expert and request DNA testing was properly denied.

Moreover, the record is completely devoid of any evidence

defendant informed trial counsel that B.S. supposedly was a

prostitute whom he paid with money and drugs in exchange for sexual

intercourse three days prior to the assault. Indeed, the first

mention of his purported defense is partially referenced in the

September 2010 letter to first PCR counsel, more than four years

after trial, and six years after a crime defendant claims he did

not commit. When a defendant asserts his attorney has inadequately

represented him, "he must assert the facts that an investigation

would have revealed, supported by [an] affidavit[] or

certification[] based upon [his] personal knowledge." Porter,

supra, 216 N.J. at 353 (citing Cummings, supra, 321 N.J. Super.

at 170). Here, defendant has done no more than "make bald

assertions that he was denied the effective assistance of counsel."

Cummings, supra, 321 N.J. Super. at 170.

17 A-5142-14T4
 The record also supports Judge Schuck's findings on

defendant's other claims. Accordingly, we are satisfied from our

review of the record that defendant failed to make a prima facie

showing of ineffectiveness of trial counsel under the

Strickland/Fritz test. We, therefore, discern no abuse of

discretion in the denial of defendant's PCR petition. The judge

correctly concluded an evidentiary hearing was not warranted. See

Preciose, supra, 129 N.J. at 462-63.

III.

Turning to defendant's motion for post-conviction DNA

evidence, we concur with Judge Schuck's denial of such testing.

Indeed, one of the key factors in determining the motion is number

five, that is, whether there is a "reasonable probability" that a

motion for a new trial would be granted if the DNA results proved

to be favorable to the defendant. N.J.S.A. 2A:84A-32a(d)(5).

Moreover, it is well-settled that to obtain a new trial based

on newly-discovered evidence, the defendant must establish the new

"evidence is (1) material, and not 'merely' cumulative,

impeaching, or contradictory; (2) . . . was discovered after

completion of the trial and 'was not discoverable by reasonable

diligence beforehand';" and (3) could "probably change the jury's

verdict if a new trial [was] granted." State v. Ways, 180 N.J.

18 A-5142-14T4
171, 187 (2004) (emphasis added) (quoting State v. Carter, 85 N.J.

300, 314 (1981)).

However, because we are satisfied trial counsel's decision

in not testing the additional specimens was sound and strategic,

and not ineffective, we conclude the additional specimens are not

new evidence. Indeed, the additional specimens were known at the

time of trial; counsel chose not to test them for the reasons set

forth above.

Simply put, even if the results of the additional specimens

could be construed as favorable to defendant, the specimens are

not new evidence and, as such, defendant would not be entitled to

a new trial. We, therefore, affirm on that basis. We are entitled

to affirm orders or judgments for reasons other than those

expressed by a trial court. See Isko v. Planning Bd. of

Livingston, 51 N.J. 162, 175 (1968); Voellinger v. Dow, 420 N.J.

Super. 480, 483 (App. Div.), certif. denied, 208 N.J. 599 (2011).

"It is [the] defendant's burden to establish that all of the

elements necessary for DNA testing have been fulfilled." State

v. Armour, 446 N.J. Super. 295, 311 (App. Div.), certif. denied,

228 N.J. 239 (2016). Defendant failed to establish the untested

specimens are newly-discovered evidence because they were known

at trial. That failure is fatal to his request for DNA testing.

N.J.S.A. 2A:84A-32a.

19 A-5142-14T4
Affirmed.

20 A-5142-14T4