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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Published.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3796-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BERNARD RELFORD, a/k/a MUSTAFAH RELFORD,

Defendant-Appellant.

________________________________________________________________ April 27, 2011 Submitted April 5, 2011 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 90-11-2634.
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Nancy C. Ferro, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Michael Relford appeals from a March 17, 2010 Law Division order that denied his motion, filed seventeen years after his murder conviction, to require that a vial of his blood be tested for the presence of alcohol or drugs. We affirm.

I. On November 28, 1990, a Middlesex County grand jury charged defendant with the October 18, 1990 murder of a neighbor, Elizabeth Baynes. At trial, the State produced testimony that Baynes was a close friend and neighbor of defendant's grandmother, whom the grandmother "loved like a daughter." The police were called to the victim's apartment by her screams of "please don't kill me, Michael." When the police entered the blood-splattered apartment, they found defendant hiding under some insulation in the attic that could be accessed only through a small trap door. The murder weapon, a knife, was found there with him. Defendant's sole defense was intoxication. Defendant did not testify at trial, but provided a statement to police, in which he claimed that he had sniffed a large quantity of cocaine and heroin and had drunk heavily before going to the victim's apartment to have consensual sex with her, and to share additional cocaine. According to defendant, after they shared the cocaine, the victim became irrational and picked up a knife to attack him. He admitted he chased her and stabbed her at least once. Defendant presented three witnesses, Corey Nix, Shawana Bell, and his grandmother, who testified to defendant's alcohol and drug use in the hours preceding the murder. The State presented testimony describing defendant as lucid during the relevant timeframe. The State also presented testimony establishing that there was no cocaine in Baynes's system, and a search of the apartment failed to unearth the two vials of
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cocaine that defendant described himself and Baynes as having used. A third vial, found in defendant's sock, did not contain cocaine. The jury returned a verdict finding defendant guilty of the murder. Defendant was sentenced on July 2, 1992, to a term of life imprisonment with a thirty-year period of parole ineligibility. Defendant appealed his conviction and sentence, raising two arguments that bore directly upon the intoxication defense that was the basis of his 2009 motion for the testing of his blood. In particular, defendant argued trial counsel rendered ineffective assistance because he failed to call as witnesses five people who would have testified that they were with defendant in the hours before the murder and defendant was "high" from the combination of cocaine, "angel dust" and alcohol. We rejected the claim of ineffective assistance of counsel, reasoning defendant had failed to establish that the additional witnesses would have provided testimony different from that already provided by Nix, Bell and defendant's grandmother on the same subject. State v. Relford, No. A-6276-91 (App. Div. 1993) (slip op. at 6-7). We also observed that defendant's intoxication defense was "flawed by the fact that he had the presence of mind to hide in the attic when he heard someone knocking on the door, and was responsive to the police when arrested, thus negating the 'prostration of faculties' needed for the [intoxication] defense." Id. at 7-8 (citation omitted). The second issue raised on direct appeal that has a bearing on the intoxication defense that underlies defendant's 2009 motion was defendant's challenge to the trial judge's order denying his Miranda motion. In affirming the denial of that motion, we observed that defendant's claim of intoxication at the time he provided his statement to police "was even weaker than his claim of intoxication at the time of the crime." Id. at 17. We noted the interrogating officer's testimony that defendant's "breath did not smell of alcohol" and that "it did not appear that defendant was under the influence of alcohol or drugs." Ibid. We affirmed the denial of defendant's Miranda motion. Id. at 18. Defendant filed a petition for post-conviction relief (PCR) in October 1998, which the judge denied without a hearing on July 8, 1999, relying in part on the five-year time bar established by Rule 3:22-12(a). On May 8, 2000, we reversed the denial of defendant's petition, and remanded for a hearing on whether PCR counsel was ineffective in failing to file the PCR petition in a timely manner. State v. Relford, No. A4 3 2

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0566-99 (App. Div. May 8, 2000) (motion order). On remand, the PCR judge, who was also the trial judge, considered defendant's claims on the merits, and rejected defendant's contention that trial counsel rendered ineffective assistance because he failed to present a diminished capacity defense. The judge observed that the mental defect defendant claimed should have been presented at trial, his "alcohol induced blackouts," was the "very argument [that] was made at trial[.]" The judge noted that although not framed as a mental disease or defect, defense counsel had argued at trial that defendant was intoxicated and thus could not form the requisite intent to commit the crime of murder. The judge reasoned that the jury had been charged on the intoxication defense, and the jury's guilty verdict showed that the jury found the defense unpersuasive. In rejecting defendant's claim of ineffective assistance of counsel, the judge also reasoned that defendant's ability to recall in vivid detail his interaction with the victim before the stabbing "belie[d] defendant's assertion that he was too intoxicated to form the requisite intent, let alone that he was suffering from an alcoholic blackout." We affirmed the denial of the PCR petition, noting that "[t]he factual evidence that would support the newly suggested diminished capacity defense was fully presented to the jury in support of the intoxication defense." State v. Relford, No. A-0566-99 (November 13, 2001) (slip op. at 5) (emphasis added). The Supreme Court denied defendant's petition for certification on April 25, 2002. State v. Relford, 172 N.J. 179 (2002). On April 16, 2009, nearly seventeen years later after conviction, and a decade after filing his PCR petition, defendant moved for an order directing the Middlesex County Prosecutor's Office to produce for testing the samples of defendant's blood that it had retained ever since the trial. In support of that motion, defendant submitted a certification explaining that although his blood had been tested prior to trial, the tests were only to establish blood type, and the samples had never been tested for the presence of drugs or alcohol. He asserted that the results of such tests would "scientifically demonstrate that [he] was under the influence of alcohol and drugs at the time of the homicide." At the conclusion of oral argument on June 19, 2009, the judge denied defendant's motion, reasoning that there was no justification for defendant's failure to have filed the motion in 1999, when he filed his PCR petition. For reasons not explained in the record, the confirming order denying defendant's motion for testing of the blood sample was not signed until March 17, 2010.

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On appeal, defendant raises the following claim: THE DENIAL OF DEFENDANT'S DISCOVERY MOTION SEEKING TO HAVE THE VIAL OF HIS BLOOD TESTED FOR THE PRESENCE OF ALCOHOL AND/OR DRUGS SHOULD BE REVERSED IN THE INTERESTS OF JUSTICE.

II.

Defendant argues on appeal, as he did in the Law Division, that in filing the blood test motion, he was applying for discovery that would have been used in support of a second PCR petition. In denying defendant's motion to compel the testing of his blood, the judge relied on Rule 3:22-12(a), which, with a single exception we describe below, bars a defendant from presenting claims on post-conviction relief more than five years after conviction. Because defendant was sentenced on July 2, 1992, the five-year deadline established by Rule 3:22-12 expired on July 2, 1997. The only exception to the time bar is a defendant's "excusable neglect." R. 3:22-12(a). Moreover, as subsection (c) of the Rule makes clear, the Rule's five-year time bar "shall not be relaxed, except as provided herein." Subsection (c) was adopted as part of the September 2009 revision of the PCR rules "to render the time limitations of the rule non-relaxable." Pressler & Verniero, Current N.J. Court Rules, comment on Rule 3:22-12(c) (2011). Where a defendant claims excusable neglect for the filing of a PCR petition beyond the five-year deadline established by Rule 3:22-12, the petition itself must allege the facts relied on by the defendant as supporting that claim. State v. Mitchell, 126 N.J. 565, 576-77 (1992). Here, defendant makes no attempt to establish excusable neglect, nor could he. Defendant knew prior to his 1992 trial that a vial of his blood had been drawn and he knew that his sole defense was intoxication. Consequently, there was no reason why in 1992, at the time of trial, he did not move to test his blood for the presence of alcohol or drugs. Moreover, there is no explanation for his failure to have raised the issue at the time he filed his PCR petition in 1998. As we have noted, defendant asserted in his PCR petition that trial counsel was ineffective for failing to raise a diminished capacity defense based upon intoxication. Defendant's failure to have sought the testing of his blood in 1998, when he filed his PCR petition, and when he discussed the intoxication defense, is not an instance of "excusable neglect." We agree with the judge's conclusion that a five-year time bar applied and that defendant's violation of that time bar could not be justified. We therefore affirm
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the March 17, 2010 order denying defendant's motion for the testing of his blood.

Affirmed. 1 The record on appeal does not include the transcripts of defendant's 1992 trial. We therefore rely on our opinion in defendant's direct appeal, State v. Relford, No. A-6276-91 (App. Div. December 15, 1993), for a description of the trial testimony. 2 The jury also returned a guilty verdict on the charge of attempted aggravated sexual assault. 3 On direct appeal, defendant raised other arguments that have no bearing on the issue currently before us. We therefore need not describe them. 4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).

This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

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