                                      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                                NOT FOR PUBLICATION WITHOUT THE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
