(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 29, 1996 -- Decided July 30, 1997
Pollock, J., writing for a majority of the Court.
Defendant appeals from his murder conviction and death sentence. The primary issue raised is the
admissibility of DNA evidence.
The body of Irene Schnaps was found in her Plainsboro apartment on June 17, 1985. She had
received approximately fifteen blows to the head. Some of the blows fractured her skull and caused direct
injury to the brain. In addition, some of her teeth were knocked out, her jaw had been broken, and her face
and neck were bruised. The medical examiner concluded that the combination of the blows had killed
Schnaps, and that she had bled profusely.
Investigating police detected no signs of forced entry. Schnaps's bedroom, however, was a scene of
obvious struggle. Blood stains were on the carpet and throughout the room. It appeared that someone had
attempted to wipe Schnaps's body clean of blood. A white pillowcase bore a bloody sneaker-print with a
chevron pattern and the letters “PON.” Also found in the bedroom were an empty Seiko-LaSalle watch box,
an empty Olympus camera box, and an empty jewelry box. Schnaps's pocketbook was open and did not
contain any money.
Throughout the summer and autumn of 1985, police in the neighboring community of West Windsor
were searching for the perpetrator of a series of unsolved burglaries and sexual assaults. Based on
eyewitness descriptions, they believed that the perpetrator was a stocky black male, under five-feet three and
one-half inches tall, who traveled on foot or by bicycle. Defendant fit the physical description. On October
28, 1985, police investigated three burglaries and arrested defendant after he was seen standing with his
bicycle at the edge of a soybean field. One of the burglary victims identified defendant at a subsequent
“show-up.” Defendant confessed to committing a number of burglaries in West Windsor, as well as a sexual
assault.
Defendant consented to the search of his car and his Jamesburg apartment for evidence involving an
unrelated sexual assault. (Defendant claimed to be living in Jamesburg with his father, although it was later
determined that he was living in West Windsor with his estranged wife.) Police discovered two watches in
the car, one a Seiko-LaSalle like the watch missing from Schnaps's apartment. Defendant was arraigned for
Schnaps's murder. He said that he would tell police about the murder, but first wanted to speak to his
father. After defendant spoke with his father, police failed to administer new Miranda warnings. Defendant
confessed to murdering Schnaps shortly thereafter.
At defendant's first trial, the State relied on defendant's confession. A jury convicted defendant of
purposeful or knowing murder, robbery, burglary, and other charges. The same jury sentenced defendant to
death in the penalty phase. Defendant's first appeal resulted in a reversal of the conviction. The Court
found that the trial court's jury instructions did not comport with its opinion in Gerald, which required that
a jury must be instructed separately on the crimes of intentional murder and serious-bodily-injury murder.
The Court also held that defendant's confession was inadmissible, since defendant did not receive new
Miranda warnings after invoking his right to silence.
Before defendant's retrial, the State hired Cellmark Diagnostics Laboratory to conduct DNA tests on blood recovered at the crime scene. At trial, the State relied on DNA evidence to prove defendant's guilt. The State called two witnesses from Cellmark, who testified generally that DNA tests conducted on blood samples at the crime scene were genetically comparable to defendant's DNA. According to these witnesses, defendant's genotypes for the genetic markers examined were common to only 1-in-1400 African Americans. Additionally, a forensic scientist testified that one of the hairs found on Schnaps's back did not belong to her, and that it was consistent with a control hair taken from defendant. The same scientist
testified that a pair of Pony sneakers seized from defendant's ex-wife's apartment were consistent with the
sneaker impression found on the pillowcase in Schnaps's apartment.
Defendant called as an expert a forensic biologist who testified that the DNA tests conducted by
Cellmark were “scientifically indefensible.” He disputed the 1-in-1400 calculation claimed by the State's
experts, concluding that the genetic makeup of the blood recovered from the crime scene could be found in
approximately 1-in-50 or 1-in-200 African Americans.
HELD: Defendant's convictions and death sentence are affirmed.
1. Defendant cites to the trial court's failure to give a non-unanimous Mejia charge (jury must be instructed
that unanimity is not required in determining whether defendant intended to kill). Such error, however, can
be considered harmless when the evidence of intent to kill is overwhelming and no rational basis exists for
concluding that defendant had intended to inflict only serious bodily injury. In defendant's first trial, it was
the statement in his confession that he struck the victim once in response to her striking him that provided a
rational basis for a juror to conclude that defendant intended only to injure his victim and not kill her.
Defendant's confession was not before the jury in the retrial, and without it, the evidence does not provide a
rational basis to support a finding that defendant's intent was to inflict only serious bodily injury.
(pp. 15-22)
2. The trial court's instruction and the verdict sheet prevented the jury from considering felony murder until
after it had first found defendant guilty of purposeful or knowing murder. Although the charge was flawed,
the error was not capable of producing an unjust result. (pp. 23-25)
3. The Court accepts the admission into evidence of the results of DNA polymarker testing, which is used
primarily on small samples of genetic material, such as blood stains. On this record, the Court concludes
that the scientific community generally accepts polymarker testing, including dot-intensity analysis. The
admission of the testimony of the State's experts about the results of the DNA tests was not error. The
weight of the evidence was for the jury. (pp. 25-68)
4. The trial court's refusal to permit defendant to further challenge the admissibility of polymarker testing
at trial did not violate his constitutional right to present a defense, since defendant remained free to
introduce evidence relevant to the weight or credibility of the testimony of the State's experts in respect of
the testing. (pp. 69-75)
5. The trial court did not err in admitting the State's statistical evidence tending to show that defendant
could not be excluded as a contributor to the blood found at the crime scene (the testimony that defendant's
genetic markers were shared by one-in-1400 African Americans). The scientific community has generally
accepted such statistics. The statistical evidence can be challenged by the presentation of conflicting expert
testimony. (pp. 75-93)
6. Defendant's other challenges to his conviction and sentence are rejected. (pp. 93-134)
Defendant's murder conviction and death sentence are AFFIRMED.
JUSTICE HANDLER, dissenting, in which JUSTICE O'HERN joins, in part, disagrees with the
majority's conclusion that the trial court's erroneous jury charge on the Mejia issue constituted harmless
error. (Justice O'Hern joins the dissent on this point.) Justice Handler is also of the view that the DNA
testing relied on by the State in proving defendant's guilt -- dot-intensity analysis -- cannot be considered
reliable or generally accepted. In addition, he believes that other significant errors contributed to
defendant's conviction and death sentence.
JUSTICES GARIBALDI, STEIN and COLEMAN join in JUSTICE POLLOCK's opinion.
JUSTICE HANDLER has filed a separate, dissenting opinion. JUSTICE O'HERN, concurs in the opinion
and judgment of the Court except with respect to Part II thereof. He would therefore affirm the
convictions except insofar as the conviction of murder establishes death eligibility. He joins Part Two,
Section I of Justice Handler's opinion on the issue of a non-unanimous verdict.
SUPREME COURT OF NEW JERSEY
A-
23 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NATHANIEL HARVEY,
Defendant-Appellant.
Argued April 29, 1996 -- Decided July 30, 1997
On appeal from the Superior Court, Law
Division, Middlesex County.
Michael B. Jones and Stephen A. Caruso,
Assistant Deputies Public Defender, argued
the cause for appellant (Susan L. Reisner,
Public Defender, attorney).
Nancy A. Hulett, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
POLLOCK, J.
Defendant, Nathaniel Harvey, appeals directly from a
judgment of conviction and sentence of death for the purposeful-or-knowing murder of Irene Schnaps. A jury originally convicted
defendant of Schnaps's murder and sentenced him to death in
October 1986. This Court reversed that conviction because of
errors in the admission of defendant's confession and in the
failure of the trial court to give a "Gerald charge." State v.
Harvey,
121 N.J. 407 (1990) (Harvey I), cert. denied,
499 U.S. 931,
111 S. Ct. 1336,
113 L. Ed.2d 268 (1991). The phrase
"Gerald charge" refers to a charge that distinguishes murder when
the defendant intended to kill from murder when the defendant
intended only to cause serious bodily injury that resulted in
death. State v. Gerald,
113 N.J. 40 (1988). Neither error
occurred in the second trial.
In the absence of defendant's confession, the State relied
substantially on DNA evidence to establish that defendant was
Schnaps's killer. Again, a jury convicted defendant and imposed
the death penalty. On this appeal, defendant raises numerous
points, including challenges to the admission of the DNA evidence
and to the jury charge. After careful review of all of
defendant's arguments, we affirm his conviction and death
sentence.
A. Discovery of the Body and the Crime Scene
Schnaps, age thirty-seven, lived alone in a ground-floor apartment at the Hunter's Glen complex in Plainsboro, New Jersey. After she failed to appear at work on June 17, 1985, a concerned coworker went to her apartment and entered through an unlocked door. On discovering Schnaps's lifeless body, he immediately called for assistance.
Investigating police detected no signs of forced entry. The
bedroom, however, was a scene of obvious struggle. Blood stains
were on the carpet and throughout the room. Schnaps's naked body
lay face-up on the floor. She had sustained severe head and
facial wounds. Despite the extensive head wounds, no bloodstains
were present on Schnaps's chest and stomach.
The matting of several small hairs to the victim's body and
the absence of blood on her torso suggested that someone had
attempted to wipe the body clean. The carpeting around the body
was wet from water. Schnaps's back was covered with blood.
A white pillowcase bore a bloody sneaker-print with a
chevron pattern and the letters "PON." Although the bedding
appeared clean, blood stained the mattress, the underlying box
spring, a cardboard box that protruded from under the bed, and a
towel.
The bedroom also included an empty Seiko-LaSalle watch box,
an empty Olympus camera box, and an empty jewelry box. In the
bathroom, the investigators found Schnaps's pocketbook. The
pocketbook was open and did not contain any money.
B. The Autopsy
On June 18, 1985, Dr. Marvin Shuster, the Middlesex County
medical examiner, conducted an autopsy. He determined that
Schnaps had sustained approximately fifteen blows to the head.
The largest wound, six inches long and one inch wide, extended
from the front of her forehead to the top of her head. In
general, the skull wounds were either curving or linear. The
curving wounds were likely caused by hammer blows, and the linear
wounds could have been caused by an item akin to a tire iron, a
two-by-four, or a dull hatchet or axe. Some of the blows
fractured Schnaps's skull and caused direct injury to the brain.
Blows had been delivered from both the right and left sides, some
from the front, but most from behind.
Triangular pressure marks appeared on both sides of the
neck. Some of the victim's teeth were knocked out, and her jaw
was broken. The right sides of the neck, jaw, cheek, and
forehead were bruised, and she was cut behind one ear.
Unable to attribute death to any particular wound, Dr.
Shuster concluded that the combination of the blows had killed
Schnaps. Schnaps had bled profusely and died within a matter of
minutes.
C. The Apprehension and Interrogation of Nathaniel Harvey
1. October 28, 1985
Throughout the summer and autumn of 1985, West Windsor
police looked for the perpetrator of a series of unsolved
burglaries and sexual assaults. Based on eyewitness
descriptions, they believed that the perpetrator was a stocky
black male, under five-feet three-and-a-half inches tall, who
usually travelled on foot or by bicycle. The police also
believed that the perpetrator of those other crimes might be
responsible for Schnaps's murder. Defendant fit the physical
description.
On October 28, 1985, police investigating three burglaries
arrested defendant after he was sighted standing with his bicycle
at the edge of a soybean field in West Windsor. One of the
burglary victims identified defendant at a subsequent "show-up."
During questioning by West Windsor police on October 28,
defendant confessed to committing a number of burglaries in West
Windsor, as well as a sexual assault. Defendant also agreed to
accompany the police on a car tour to point out the locations of
his crimes.
2. October 29, 1985
At 10:00 a.m. on the following morning, defendant
accompanied two detectives on a car tour of West Windsor. At
1:15 p.m., defendant consented to a search of his car and his
Jamesburg apartment for evidence related to an unrelated sexual
assault. Although defendant gave as his address his father's
apartment in Jamesburg, he lived with his estranged wife in West
Windsor. Apparently, defendant feared that his wife would lose
her welfare benefits if he revealed that he lived with her.
After defendant signed the consent form, police transferred him
to the Mercer County Detention Center.
While searching defendant's car, the officers discovered two
watches, including a Seiko-LaSalle like the one missing from
Schnaps's apartment. They notified the Plainsboro Police
Department. After obtaining a search warrant, a Plainsboro
officer seized the watch. The search of Harvey's Jamesburg
apartment did not yield any evidence.
3. October 30, 1985
Following defendant's arraignment for the murder of Schnaps,
investigating officers resumed questioning him. At one point,
defendant said that "he would tell [them] about the murder but
first wanted to speak to his father." After defendant spoke with
his father, police failed to administer new Miranda warnings.
Shortly thereafter, defendant confessed to murdering Schnaps.
D. The First Trial
On November 19, 1985, a Middlesex County grand jury returned
a three-count indictment charging defendant with the purposeful-or-knowing murder of Schnaps, contrary to N.J.S.A. 2C:11-3 (count
one), second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count
two), and second-degree burglary, contrary to N.J.S.A. 2C:18-2
(count three). Two days later, on November 21, 1985, the
Middlesex County Prosecutor filed a Notice of Aggravating Factors
pursuant to Rule 3:13-4(a) and N.J.S.A. 2C:11-3c(2), making
defendant's case a capital prosecution. The State alleged the
following aggravating factors:
1. The murder was outrageously or
wantonly vile, horrible or inhuman in that it
involved an aggravated battery to the victim
[N.J.S.A. 2C:11-3c(4)(c).]
2. The murder was committed for the
purpose of escaping detection, apprehension,
trial, imprisonment or confinement for
robbery and burglary committed by the
defendant [N.J.S.A. 2C:11-3c(4)(f).]
3. The murder was committed while the
defendant was engaged in the commission of or
an attempt to commit, or flight after
committing robbery and burglary [N.J.S.A.
2C:11-3c(4)(g).]
The prosecution relied heavily on defendant's confession.
Harvey I, supra, 121 N.J. at 415-17. The jury found defendant
guilty of purposeful-or-knowing murder, first-degree robbery,
second-degree burglary, and felony murder, for which he had not
been indicted. At a penalty-phase hearing, the same jury found
the presence of all three alleged aggravating factors and
returned a sentence of death.
E. Harvey I
On direct appeal, this Court reversed defendant's conviction
and remanded for a new trial. The Court held that the trial
court's jury instructions on murder did not comport with Gerald,
supra,
113 N.J. 40, which required that a jury must be instructed
separately on the crimes of intentional murder and serious-bodily-injury murder (SBI murder). At the time of Harvey's
trial, a conviction for SBI murder did not render a defendant
death-eligible. In his confession, Harvey claimed that the
victim struck him and that he then struck her only once. Relying
in part on statements in his confession, the Court concluded that
the evidence provided a rational basis for a jury to have
concluded that defendant intended only to injure Schnaps. Harvey
I, supra, 121 N.J. at 413.
The Court further held that Harvey's confession had been
procured in violation of State v. Hartley,
103 N.J. 252 (1986).
Hartley provides that after invoking the right to silence, a
defendant must receive new Miranda warnings before interrogation
can resume. The Court ruled that by asking to speak with his
father Harvey had invoked his right to silence. Harvey I, supra,
121 N.J. at 418-20. Consequently, the police should have advised
him again of his constitutional rights before resuming
interrogation. The failure of the police to abide by that
bright-line test rendered defendant's confession inadmissible.
Id. at 422.
F. The Interim Between Trials
Faced with the prospect of retrying Harvey without his
confession, the prosecution hired Cellmark Diagnostics Laboratory
(Cellmark) to conduct DNA tests on the blood recovered from the
crime scene. Cellmark, the first commercial laboratory
accredited by the American Society of Crime Laboratory Directors,
conducts DNA tests exclusively. It analyzed a bloodstained
section of Schnaps's box spring, a bloodstained piece of
cardboard, and a sample of both Schnaps's and defendant's blood.
G. The Retrial
Defendant's retrial, from the pretrial motions to the return
of the death sentence, lasted from November 25, 1992 to December
16, 1994. The trial court denied a motion for a new trial on
January 30, 1995.
1. Pretrial Motions
Following a hearing, the trial court denied defendant's
motion to suppress evidence seized from defendant's car, ruling
that defendant had consented to the search. The defendant also
moved to exclude the State's DNA evidence. After a three-day New
Jersey Rule of Evidence 104 (Rule 104) hearing, the trial court
denied defendant's motion and held that the State's DNA evidence
was admissible.
2. Guilt Phase
After a lengthy jury-selection process, the guilt phase
began on November 29, 1994.
a. State's Case
The State adduced evidence about the crime scene, including
fifty-two photographs and various items of physical evidence.
Investigating officers testified to the discovery of the bloody
sneaker print, the empty Seiko-LaSalle watch box, the empty
jewelry box, and the empty Olympus camera box, all of which were
admitted into evidence.
Philip Beesley, a forensic scientist employed by the New
Jersey State Police, testified that blood work done on control
samples from both the defendant and Schnaps revealed that
Schnaps's blood was type "one plus, one minus" for the genetic
marker PGM, and type "1" for the enzyme CA II. Defendant was
type "one plus, one plus" for PGM and type "2-1" for CA II.
Beesley further revealed that bloodstains found on the
box spring and on the piece of cardboard tested as "one plus, one
plus" for PGM and type "2-1" for CA II. He concluded that those
stains were consistent with Harvey's blood, therefore, not
Schnaps's. Beesley also testified that CA II of phenotype 2-1 is
found only in African Americans.
Dr. Marvin Shuster testified about the nature of the wounds
suffered by Schnaps and the cause of her death. See supra part
I.B. Theodore Mozer, a forensic scientist employed by the New
Jersey State Police, testified that one of the hairs recovered
from Schnaps's back did not belong to her. Mozer testified that
this hair had "Negroid" characteristics that were consistent with
a control hair taken from Harvey.
Mozer also examined two pairs of sneakers seized from
Harvey's ex-wife's West Windsor apartment and the size 6 1/2
"Pony" sneakers that Harvey was wearing when he was arrested.
Aided by six enlarged photographs of the bloody footprint left at
the crime scene, Mozer explained that Harvey's "Pony" sneakers
were consistent with the sneaker impression. Although Harvey's
sneakers "could" have left the bloody mark, Mozer could not
conclude definitively that they had done so.
In support of the admission of the DNA evidence, the State
presented two witnesses from Cellmark, Julie Cooper, a senior
molecular biologist, and Dr. Charlotte Word, a microbiologist and
supervisor of forensic casework. They testified generally that
DNA tests conducted on the blood samples recovered at the crime
scene were genetically comparable to defendant's DNA.
Defendant's genotypes for the genetic markers examined were
common to only one-in-1,400 African Americans.
b. Defendant's Case
Defendant did not testify.
His case consisted of only two witnesses. A witness from
Seiko testified that it had made thousands of watches like the
one seized from the trunk of defendant's car. Dr. Robert Shaler,
Director of Forensic Biology for the Office of the Chief Medical
Examiner for the City of New York, testified that he believed
that the DNA tests were "scientifically indefensible." In the
course of his testimony, he pointed out the imbalances in the
dots on the strips. He found imbalances at the GYPA, HBGG and GC
loci. Dr. Shaler testified that at the GYPA locus an
individual's genes could cause a difference in dot intensity. He
further disputed the one-in-1,400 calculation and asserted that
he believed that the genetic makeup of the blood recovered from
the crime scene could be found in approximately one in fifty to
one in 200 African Americans.
c. The Verdict
In its jury instructions, the court included a Gerald
charge. Consistent with State v. Purnell,
126 N.J. 518, 530-34
(1992), the court also charged on the unindicted count of felony
murder. After deliberating for three and one-half hours, the
jury returned its verdict finding defendant guilty of purposeful-or-knowing murder, felony murder, first-degree robbery, and
second-degree burglary.
3. Penalty Phase
a. State's Case
The State relied exclusively on the evidence adduced at the
guilt phase to support proof of three aggravating factors: the
murder involved aggravated assault of the victim, N.J.S.A. 2C:11-3c(4)(c); the murder was committed to escape detection, N.J.S.A.
2C:11-3c(4)(f); and the murder was committed during the course of
a robbery and burglary, N.J.S.A. 2C:11-3c(4)(g).
b. Defendant's Case
Pursuant to N.J.S.A. 2C:11-3c(5)(c) and (h), defendant
alleged ten mitigating factors: the age of the defendant at the
time of the murder; the defendant was traumatized at a young age
when he witnessed the death of his older sister; defendant was
uprooted from his home and sent to live with his grandparents who
abused him; defendant suffered feelings of abandonment when his
parents moved north and failed to send for him; he was exposed to
domestic violence in the home of his grandparents; he was exposed
to domestic violence in the home of his parents; he is a caring
and loving father; his continuing relationship with his children
including financial contributions; his relationship with his
mentally disabled brother and his mentally disabled daughter; and
all factors which relate to the defendant's childhood and family
background.
Professor Richard Moran, a criminologist specializing in
the correlation between age and crime, testified that if
defendant were sentenced to prison rather than death, he could
not be eligible for parole prior to age 64, by which time he
would be in the age group least likely to commit violent crime.
Therefore, the chances of defendant committing another violent
crime would be minute.
A forensic social worker testified about defendant's social
history. Defendant was raised in poverty. His often-absent
father was a sharecropper and a migrant worker. As a two-year
old, defendant had been injured in an automobile accident, but
did not receive medical treatment. When defendant was four, he
and his five-year old sister were left in an unheated home.
While trying to light a stove, defendant's sister spilled some
kerosene on her nightgown. When defendant lit a match, she
burned to death.
Defendant's parents later moved to New Jersey, leaving
defendant in the care of his grandparents for seven years.
During his childhood, defendant was abused by both his
grandfather and father.
Various family members testified that defendant was a loving
and caring father, who also comforted his developmentally-disabled brother. Defendant's family asked the jury not to
sentence defendant to death.
c. The Verdict
After deliberating for two and one-half hours, the jury
returned a unanimous verdict that defendant had committed the
murder for the purpose of avoiding apprehension, N.J.S.A. 2C:11-3c(4)(f), and in the course of a robbery and burglary, N.J.S.A.
2C:11-3c(4)(g). It did not find aggravating factor N.J.S.A.
2C:11-3c(4)(c), that the murder involved aggravated assault to
the victim. The jury further found that the aggravating factors
outweighed all of the mitigating factors and that each
aggravating factor alone outweighed all of the mitigating
factors. The trial court sentenced defendant to death.
Later, the trial court sentenced defendant as a persistent
offender on the non-capital counts of first-degree robbery and
second-degree burglary. Accordingly, defendant received a
sentence of life with a twenty-five year parole bar on the first
degree robbery conviction to run consecutively to defendant's
death sentence for capital murder. On the burglary conviction,
defendant was sentenced to a concurrent term of five years in
prison with a two-and-one-half year parole bar. Those sentences
were made consecutive to prison terms previously imposed on
defendant for unrelated crimes. Thus, defendant's aggregate
sentence, irrespective of the death penalty, is life plus sixty-five years with a fifty-seven-and-one-half year parole
disqualifier.
We first consider defendant's contention that the trial court committed reversible error when it failed to instruct the jury in accordance with this Court's later decision in State v. Mejia, 141 N.J. 475 (1995).
Evaluation of defendant's Mejia argument begins with Gerald, supra, 113 N.J. 40. In Gerald, this Court held as a matter of state constitutional law that only those murderers who intended to kill were eligible for the death penalty. Those who intended to inflict only serious bodily injury were not death-eligible under N.J.S.A. 2C:11-3(a)(1) or (2), even if their actions resulted in their victim's death. Id. at 69-70. Subsequent constitutional and statutory amendments have abrogated the Gerald rule by subjecting to the death penalty murderers who intended to cause only serious bodily injury. N.J. Const. art. I, ¶ 12 (1992); L. 1993, c. 111 (signed May 5, 1993). At the time of Schnaps's murder, however, only those who murdered with the intent to kill were death-eligible. Thus, the Gerald rule applies to the present case.
Under Gerald, the jury's determination whether defendant killed with the intent to kill or merely with the intent to
inflict serious bodily injury, became the linchpin of capital-punishment eligibility. If the evidence produced at trial
provided even a rational basis for a jury to convict a defendant
of SBI murder rather than intentional murder, the trial court was
compelled to "instruct the jury to specify which, if [either], of
those findings forms the basis for conviction." State v. Coyle,
119 N.J. 194, 209 (1990). Under Gerald, the jury's key role
became to determine whether defendant's intent was to kill or to
inflict SBI. State v. Moore,
122 N.J. 420, 484 (1991).
In Mejia, supra, 141 N.J. at 48l, this Court clarified
Gerald by stating that a jury need not be unanimous on whether
the defendant intended to kill or to injure seriously. The
intent-to-kill requirement is not an element of murder, but a
"triggering device" for the death-penalty phase of the trial.
Id. at 486. Thus, unanimity is not required in making the Gerald
determination. Id. at 487 (noting "unanimity requirement extends
only to verdicts adverse to the defendant"). A jury can return a
valid guilty verdict for purposeful-or-knowing murder even if it
cannot agree that defendant killed intentionally. Such a
verdict, however, will not support the imposition of the death
penalty. Id. at 486. In Mejia, the record provided "a rational
basis for a jury to find that defendant intended only to cause
serious bodily injury." Id. at 481. The trial court's failure
to instruct the jury about the possibility of returning a non-unanimous verdict on the defendant's intent thus constituted
plain error.
In State v. Harris,
141 N.J. 525, 549 (1995), however, we
held that a failure to give a non-unanimous Mejia charge could be
considered harmless when the evidence of intent to kill was
overwhelming and no rational basis existed for concluding that
defendant had intended to inflict only serious bodily injury.
Although defendant's case was tried seven months before the
issuance of Mejia and Harris, defense counsel requested a charge
on a non-unanimous verdict. Before us, defendant argues that the
absence of a non-unanimous verdict charge coerced the jury into
returning a verdict of capital murder. The initial inquiry,
then, is whether the evidence provided a rational basis to find
that defendant intended to inflict only serious bodily, and not
to kill.
Failure to charge in accordance with Gerald/Mejia requires the reversal of a death sentence if the record below contains evidence that is "minimally adequate to provide a rational basis for the jury to hold a reasonable doubt that the defendant intended to cause death." Mejia, supra, 141 N.J. at 489; see also State v. Pennington, 119 N.J. 547, 561 (1990) (characterizing rational-basis standard as a "low threshold"); State v. Pitts, 116 N.J. 580, 615 (1989) (same). Accordingly, a rational basis may exist even though a jury likely would reject the defendant's serious-bodily-injury theory. Mejia, supra, 141 N.J. at 489; see State v. Dixon, 125 N.J. 223, 254 (1991) ("The
error was not harmless because there was evidence in this case
that could have sustained an SBI . . . verdict. We do not
suggest that such a verdict was likely, but merely that if the
jury returned that verdict, the court could not reject it.").
Satisfaction of the "minimally adequate/rational basis" standard,
however, requires more than a mere "scintilla of the evidence."
Mejia, supra, 141 N.J. at 489; State v. Crisantos,
102 N.J. 265,
278 (1986).
We have found harmless error in cases where defendants'
actions have been "so wantonly brutal that the jury could have
concluded only that the defendant intended to cause death."
Mejia, supra, 141 N.J. at 488; see, e.g., Harris, supra, 141 N.J.
at 550 (victim was handcuffed and lying on ground when defendant
shot him in back of head); State v. Bey,
129 N.J. 557, 579 (1992)
(Bey III) (defendant stomped on victim with sufficient force to
crush her chest), cert. denied, U.S. ,
115 S. Ct. 1131,
130 L. Ed.2d 1093 (1995); State v. Biegenwald,
126 N.J. 1, 18
(1991) (Biegenwald IV) (defendant fired four gunshots into
victim's head); State v. McDougald,
120 N.J. 523, 558-60 (1990)
(defendant slashed victims' throats, bludgeoned one with baseball
bat, and expressed intent to kill both before and after
killings); State v. Hightower,
120 N.J. 378, 412-14 (1990)
(Hightower I) (defendant shot victim at close range in chest,
neck, and head, and then dragged victim into freezer); State v.
Rose,
120 N.J. 61, 63-64 (1990) (Rose II) (defendant fired
twelve-gauge shotgun point-blank into victim's stomach); State v.
DiFrisco,
118 N.J. 253 (1990) (DiFrisco I) (defendant shot victim
four times in head and admitted intention to kill), cert. denied,
__ U.S. __,
116 S. Ct. 949,
133 L. Ed.2d 873 (1996); Pitts,
supra, 116 N.J. at 614-20 (defendant threatened to kill victims
two days before murders, inflicted twenty-five to thirty stab
wounds with combat knife, cut one victim's throat twice, and
paused to take victim's pulse to verify death); State v. Hunt,
115 N.J. 330, 374-77 (1989) (defendant stated intent to kill
immediately prior to stabbing victim twenty-four times).
Schnaps was brutally murdered. Her killer struck her fifteen times in the head with a blunt instrument. He struck her with sufficient force and frequency to fracture her skull in several places, knock out her teeth, and break her jaw. He further applied sufficient pressure to her neck to cause severe bruising. Reviewing that medical evidence in Harvey I, supra, we wrote that "such repeated blows can support a jury finding of intentional murder." 121 N.J. at 413.
Relying substantially on the assertions in defendant's confession, however, we concluded that the evidence as a whole required reversal. We reached that conclusion because "the record provided a rational basis for the jury to find that [defendant] intended to cause only serious bodily injury." Id. at 414 (internal quotations omitted). Contrary to the dissent's assertions, all of the "pertinent facts" contained in Harvey's
confession were not before the jury in the retrial. Post at ___
(slip op. at 90). Not before the jury was defendant's confession
that he had struck the victim only once in response to being
punched in the nose. Harvey I, supra, 121 N.J. at 412. That
confession provided a rational basis for a juror in the first
trial to have concluded that Harvey intended only to injure his
victim and not kill her. The absence of Harvey's confession is a
critical distinction between the record in Harvey I and that in
the present case.
In determining whether a rational basis existed for a Gerald charge, we are confined to the evidence in the record. See Bey III, supra, 129 N.J. at 581 ("[W]e examine scrupulously the evidence that was adduced at trial to see whether the jury had a rational basis for finding that the defendant could have intended only serious bodily injury."); Dixon, supra, 125 N.J. at 253 (noting appellate role is to ask if jury answered question on death-eligibility). We may not consider the evidence in the first trial. In brief, defendant's confession, which was admitted in the first trial but excluded from the second, is not part of the record.
Absent the confession, the evidence does not provide a rational basis for the supposition that defendant struck his victim to ward off her attack. The dissent attempts to distinguish Schnaps's murder from related cases where we have
found harmless trial courts' failure to provide a non-unanimity
instruction. According to the dissent, repeated bludgeoning to
the head by a hammer-like instrument, such as the one used by
defendant, "is not like a gun fired at close range into a person;
the victim's death is not so assured." Post at ____ (slip op. at
93) (citing Hightower I, supra, 120 N.J. at 412-14 (finding that
defendant shot victim with a .32-caliber handgun from close range
in the chest, neck, and head)). Incomprehensibly, the dissent
also concludes that, unlike other cases, "there is no evidence
that defendant took further steps to assure Ms. Schnaps's death."
Post at ___ (slip op. at 94) (citing Hightower I, supra, 120 N.J.
at 413 (finding that defendant dragged victim into freezer);
Pitts, supra, 116 N.J. at 618 (noting that defendant took
victim's pulse)). We disagree. The inescapable inference
created by the objective facts, especially the severity and
number of Schnaps's wounds, is that defendant intended to kill
her.
Nor is defendant's argument strengthened by the trial court's delivery of a Gerald charge. Given this Court's reversal of the conviction in the first trial, the inclusion of a Gerald charge in the second trial is understandable, if unnecessary. In reversing the conviction in the first trial, which included defendant's confession, we did not predetermine the need for such a charge in a retrial in which the confession was excluded.
Likewise, the inclusion of charges on the lesser-included
offenses of aggravated and reckless manslaughter do not compel
the need for a Gerald/Mejia charge. Those charges reflect the
trial court's caution when instructing the jury.
We are unpersuaded also by defendant's contention that he was entitled to a Mejia charge. Defendant bases that contention on the State's acknowledgment that when defendant entered the victim's apartment, he intended to commit only burglary, not murder. Similarly unpersuasive is defendant's attempt to derive support from the State's argument, made pursuant to N.J.S.A. 2C:11-3c(4)(c), that defendant, when committing aggravated assault on the victim, inflicted some blows not to kill, but to cause pain. Even if defendant did not intend to kill Schnaps when he first entered her apartment, the evidence reveals that he changed his mind once he began to assault her. Whether this occurred in a "brief moment," as the dissent argues, or not is irrelevant. Post at ___ (slip op. at 92).
Furthermore, a Gerald/Mejia charge is not required simply because the prosecution relies on N.J.S.A. 2C:11-3c(4)(c). Overwhelming evidence establishes that even if defendant struck the first few blows merely to cause pain, he struck the others to kill. The trial court did not err in failing to tell the jury that it could return a non-unanimous verdict on whether defendant intended to kill. Defendant's attack was "so wantonly brutal
that the jury could have concluded only that the defendant
intended to cause death." Mejia, supra, 141 N.J. at 488.
Defendant contends that the trial court's instruction on murder improperly precluded the jury from considering the non-capital offense of felony murder. Specifically, defendant alleges that the instruction and the verdict sheet prevented the jury from considering felony murder until after it first had found him guilty of purposeful-or-knowing murder. Defense counsel did not object to the charge or the verdict sheet. Hence, the issue arises as a matter of plain error under Rule 2:10-2. The issue is whether the error "is clearly capable of producing an unjust result." We recognize that the charge was flawed, but conclude that the error was not capable of producing such a result.
Defendant was indicted "for purposely or knowingly causing Schnappes [sic] death or serious bodily injury resulting in death." The indictment also included counts for second-degree robbery and second-degree burglary. In addition, the State relied on aggravating factor N.J.S.A. 2C:11-3c(4)(g) (the murder was committed during the course of a robbery and a burglary). Although defendant was neither indicted for, nor charged with felony murder, N.J.S.A. 2C:11-3a(3), the court, in accordance
with Purnell, supra, 126 N.J. at 530-34, instructed the jury on
felony murder. A conviction for felony murder, however, does not
render a defendant eligible for the death penalty. N.J.S.A.
2C:11-3c; Dixon, supra, 125 N.J. at 255. In Purnell, this Court
held that the death penalty could not be imposed for a murder
that was committed in the course of a felony if the jury was not
permitted to consider the non-capital verdict of felony murder.
Although the trial court here gave a felony-murder charge, the
verdict sheet makes clear that the jury could not have considered
a verdict on felony murder without first finding defendant guilty
of purposeful-or-knowing murder.
The court instructed the jurors that page one of the verdict sheet provided them with four choices when considering the murder charge. They could find defendant not guilty, guilty of murder, guilty of aggravated manslaughter, or guilty of reckless manslaughter. Page one did not present felony murder as an option.
The court instructed the jurors that if they found defendant not guilty of murder, they were to ignore pages two and three of the verdict sheet, and proceed directly to page four, where they were to consider the robbery count. Only if the jury found defendant guilty of murder were they to proceed to pages two and three. Page two directed the jury to determine whether defendant had committed the killing by his own conduct and purposely or
knowingly. If the jury answered affirmatively, the verdict sheet
directed them to page three. That page directed the jury to the
Gerald issue, whether defendant had acted with the intent to kill
or to inflict serious bodily injury. It also directed the jury
to consider whether defendant was guilty of felony murder. Thus,
unless the jurors first found defendant guilty of purposeful or
knowing murder, they would not have reached the felony-murder
alternative. In effect, the verdict sheet distracted the jury
from convicting the defendant of felony murder, but not
purposeful-or-knowing murder.
In a capital case, "the jury must be given every opportunity
to convict of the charge not carrying the death penalty." Mejia,
supra, 141 N.J. at 484 (quoting John M. Cannel, New Jersey
Criminal Code, Annotated, Comment 13 to N.J.S.A. 2C:1-8(e)).
Here, the combination of the jury charge and the verdict sheet
led the jury away from rendering a non-capital verdict of felony
murder. That was error.
On the facts of this case, however, the flaws in the charge
and verdict sheet do not constitute plain error. Defendant has
not advanced any plausible version in which the jury could have
convicted him of felony murder without also convicting him of
purposeful-or-knowing murder. Nor can we ascertain any such
version from the record. In sum, the error was not clearly
capable of producing an unjust result.
Following a Rule 104 hearing, the trial court permitted the prosecution to admit into evidence the results of a DNA test kit known as the "PM" or "polymarker" test. The kit, which is manufactured by Roche Laboratories and marketed by the Perkin-Elmer Corporation, is sold under the trade name "AmpliType PM." This polymarker evidence was an important link in tying defendant to the crime. We accept the admission into evidence of results of polymarker testing, which is used primarily on small samples of genetic material, such as blood stains.
On this record, we conclude that the scientific community generally accepts polymarker testing, including dot-intensity analysis. Generally speaking, dot-intensity analysis is a means of identifying a single sample from two sources, such as a blood stain that contains the blood of two people. Such samples may be present at the scene of a violent crime.
The State's experts identified the genetic markers for the victim and the perpetrator. Through polymarker testing they determined that the box-spring sample, which contained the victim's blood, also contained blood with the same genetic markers as defendant's blood. The experts concluded that defendant's genotype for the genetic markers was shared by only one-in-1,400 African Americans. We hold that the trial court did not err in admitting the testimony of the State's experts about the results of the DNA tests. The weight of that evidence was for the jury.
DNA testing is an evolving science. The general acceptance
or rejection of a test may change over time. Even a test that is
accepted generally, moreover, may attract critics. One generally
accepted DNA test involves restriction fragment length
polymorphism (RFLP) analysis. Because the blood sample in this
case was so small, the State's experts could not use RFLP
analysis. Instead, they used tests based on a Polymerase Chain
Reaction (PCR): the HLA DQ ALPHA (DQ Alpha) and polymarker (PM)
tests.
We begin with a basic explanation of DNA. The explanation
necessarily uses technical terms and describes scientific
methods. Our purpose is to discuss the basic concepts to the
extent necessary for comprehension of the trial court's decision
to admit the DNA evidence.
In the course of our discussion, we shall review objections
raised by defendant and the dissent to the admission of the DNA
evidence. Generally, the defense repeats arguments rejected by
the trial court. The dissent, however, raises several objections
not raised by the defense either at trial or on this appeal.
Both the defense and the dissent share the objective of
precluding the admission of DNA evidence proving that defendant
murdered Irene Schnaps. Our scrutiny of the record leads to the
conclusion that the trial court did not err in admitting the DNA
evidence. The weight of the evidence was a matter for the jury.
1. Deoxyribonucleic Acid (DNA)
Deoxyribonucleic acid (DNA) is a molecule of genetic materials shaped like a double-helix or spiral ladder. In every person, each cell with a nucleus contains a copy of that person's DNA. Thus, DNA serves as a blueprint for the human body.
The sides of the DNA helix or ladder are composed of two chains comprised of sugars and phosphates. Rungs or steps connect the two sides of the ladder. The rungs consist of pairs of molecules called "bases" or "nucleotides," which consist of four types: adenine (A), cytosine (C), guanine (G), and thymine (T). Nucleotides from separate DNA strands bond in a specific order to form the rungs that connect the sides of the DNA ladder. C bonds only with G, and A bonds only with T. Thus, for example, if the nucleotides on one strand are CGAT, the corresponding nucleotides on the attached strand will be GCTA.
The order of the base pairs along the DNA molecule comprises an individual's genetic code. Human DNA contains approximately three to four billion base pairs, known as the "genome." These base pairs govern the production of bodily proteins.
A gene is a sequence of nucleotides on a DNA strand responsible for producing a particular protein. The sequence of the nucleotides can vary. The possible sequences or variations are called "alleles." Thus, an allele is simply a version of a gene.
A gene's position on a chromosome is its locus. In
different individuals, genes may be "polymorphic," meaning that
they may take different forms or contain different sequences of
base pairs. The polymorphic genes, which vary from one person to
another, provide the basis for DNA identification. Most DNA has
no known function, but even non-functional DNA remains important
in forensic analysis.
During mitosis, or cell division, each chromosome is copied.
The paired nucleotides separate, dividing the chromosome's DNA
molecule into two separate strands. Free-floating nucleotides
attach to the exposed nucleotides of the separated strands in
accordance with the G-C, A-T rule. Thus, each strand
reconstitutes identical DNA molecules. When the cell divides,
these two identical chromosomes enter newly-created "daughter"
cells. Each new cell has the identical genetic composition as
the original cell.
All cells contain the same chromosomal composition. No two
individuals, except identical twins, have the same nucleotide
sequences throughout their DNA. DNA testing conducted on cells
from various parts of the same body, whether blood, skin, semen,
saliva, or hair will yield the same results. As in this case,
DNA analysis can help identify donors of genetic material, such
as blood.
2. Restriction Fragment Length Polymorphism (RFLP)
At present, the most widely accepted DNA test is the RFLP
analysis. See, e.g., Fishback v. People,
851 P.2d 884, 892
(Colo. 1993) (holding that "no serious dispute exists as to
whether the techniques involved in RFLP analysis are generally
accepted"); State v. Moore,
885 P.2d 457, 468 (Mont. 1994)
(concluding that "the theory underlying DNA and RFLP technology
is generally not open to serious attack and [] such evidence is
widely admitted in various state and federal courts and
jurisdictions"); State v. Streich,
658 A.2d 38, 48 (Vt. 1995)
(noting that "we cannot find any recent decision under any
standard of admissibility which refuses to admit the DNA match
result based on" the RFLP technology). Recently, in State v.
Marcus, the Appellate Division recognized that the scientific
community generally accepts RFLP analysis.
294 N.J. Super. 267
(1996). As Judge Skillman stated, "DNA testing by the RFLP
method is generally accepted and is sufficiently reliable to
warrant its admission in criminal cases." Id. at 285. RFLP was
not the DNA analysis employed in this case. A brief description
of RFLP, however, may be useful as background information.
RFLP focuses on non-functional regions of DNA known as
variable-number tandem repeats (VNTRs). In these regions, which
typically range from 500 to 10,000 pairs of nucleotides, a core
sequence of approximately fifteen to thirty-five base pairs is
repeated many times consecutively along the chromosome. The
number of repeats varies among individuals. At a given locus or
site on a chromosome, sequences with different numbers of
repeated units are known as VNTR alleles. Because different VNTR
alleles contain different numbers of repeats, these alleles can
be identified by their lengths. National Research Council, The
Evaluation of Forensic DNA Evidence 14-15 (1996) (NRC Report).
In RFLP analysis, the recovered DNA sample and the sample
from the suspect are treated with a restriction enzyme, which
seeks out a specific nucleotide pattern on the DNA helixes. It
then fragments the molecules at those sites. Because of VNTRs,
the locations of these sites, and the lengths of the resulting
fragments, differ among individuals. Through a process called
"gel electrophoresis" the DNA fragments are sorted by size and
split into single strands. These strands bond to a nylon
membrane, where a specially treated and radioactively-tagged
single strand of DNA, called a "genetic probe," is applied. The
genetic probe bonds with a targeted VNTR sequence.
The nylon membrane is then placed in contact with a piece of
X-ray film. The radioactivity of the probes exposes the film,
producing a pattern of bands, like the bar-code on a box in a
supermarket, where the probes have attached to VNTRs. This bar-code image is called an "autoradiograph" or "autorad."
Fragments from different donors contain different numbers of
repeat units, with a corresponding variation in the lengths of
the fragments. Typically, radioactive probes need days or even
weeks to expose the film. Id. at 18. Generally speaking, RFLP
testing is time-consuming and may require months for a complete
analysis. Ibid.
Comparison of the location of the bands reveals whether the
targeted VNTR in the subjects's DNA matches the DNA from the
recovered genetic material. That analysis can lead with a high
degree of certainty to a correlation between the DNA samples.
The next step involves analysis of population statistics,
which reveals the likelihood of a random match between the
samples. Using single-locus probes, the probability of finding a
random match between unrelated individuals on all bands of a DNA
fingerprint is less than one in ten million. Using one multi-locus probe, the probability is about one in thirty-three
billion. Thomas M. Fleming, Annotation, "Admissibility of DNA
Identification Evidence,"
84 A.L.R.4th 313, 324 (1991).
One problem with RFLP testing is that it requires a large
quantity of high-quality genetic material. For example, it
requires at least a quarter-sized blood stain or a dime-sized
semen stain. Unless those samples are recovered when relatively
fresh, they will degrade into fragments too small for RFLP
analysis. Id. at 320. Cellmark attempted RFLP testing in this
case. The samples, however, were too degraded to permit RFLP
analysis. Thus, Cellmark turned to a newer technology, which
involved Polymerase Chain Reaction (PCR).
3. PCR
When, as here, the quantity or quality of genetic material
recovered from a crime scene is insufficient to allow RFLP
analysis, forensic scientists have used the PCR process to
amplify the DNA to produce an amount suitable for testing. The
PCR process can copy a segment of DNA millions of times. NRC
Report, supra, at 22-23. With the resulting genetic product,
scientists can conduct "allele-specific probe" analysis.
Fleming, supra,
84 A.L.R.4th at 322-23.
The PCR process copies DNA fragments similar to the way DNA
replicates itself during mitosis. Through heating the DNA sample
in a thermal cycler, the process separates the helix into
separate strands. Primers composed of short DNA segments are
added to define the target sequence of DNA. Then, a basic
solution containing the enzyme DNA polymerase and the four basic
nucleotides are added to the primed DNA sample. The added
nucleotides pair with the exposed nucleotides on the separated
target-strands in accordance with the G-C, A-T pairing rule.
From the original DNA segment, two identical segments result.
The thermal cycler runs through its cycle approximately thirty-two times, amplifying the original sample by a factor of two
billion. Currently PCR technology effectively amplifies only
small regions of DNA. Accordingly, PCR cannot be used to amplify
longer VNTRs for RFLP testing. NRC Report, supra, at 69-70.
PCR-based testing methods have several advantages over RFLP
analysis. They are relatively simple processes and can yield
results within a short period of time, often within twenty-four
hours. Of particular importance to the present case, the PCR
process also makes possible DNA tests on small amounts of genetic
material.
A disadvantage of PCR-based tests, however, is that the
identified genes have fewer alleles than VNTR's. Hence,
scientists must examine more loci to produce the same amount of
information about the likelihood that two individuals share a
profile. Id. at 71. Also, some of the loci examined by PCR-based tests are functional genes. Unlike non-functional VNTR
markers, functional genes are more susceptible to natural
selection, a susceptibility that might undermine their usefulness
in matching DNA samples. Ibid. Contamination also is of concern
in PCR testing. The technology is so efficient that even small
contaminants can be replicated along with the targeted DNA.
Ibid. Cellmark used two types of PCR-based tests in defendant's
case: the HLA DQ Alpha (DQ Alpha) and polymarker (PM) tests.
a. HLA DQ Alpha Test
The DQ Alpha test reveals an individual's form of alleles
for the human-leukocyte-antigen DQ Alpha gene. The purpose of
the DQ Alpha test is to identify the genotype or the two alleles
that comprise the DQ Alpha gene present in the DNA sample. That
result is then compared with the DQ Alpha genotype of the
suspect. If the genotypes match, then the suspect cannot be
excluded as a possible donor. Genetics population databases then
produce the frequency with which the suspect's genotype appears
in the population. Although eight alleles have been identified
at the DQ Alpha locus, only six are commonly used in forensic
work. Ibid. Each of those six alleles can be distinguished by
specific enzyme probes. Ibid. The six alleles for DQ Alpha are
denominated as 1.1, 1.2, 1.3, 2, 3, and 4. For the DQ Alpha
gene, there are twenty-one possible pair combinations or
genotypes.
To interpret the results, the test uses a test strip with six chemical dots. Each dot consists of a specific enzyme probe that selectively binds to one of the six DQ Alpha alleles. Because the probes, rather than the DNA, are fixed on the membrane, this is called a "reverse" blot. Ibid. This test strip is then immersed in a solution containing the PCR product. The alleles for DQ Alpha present in the PCR product