State v. Marcus

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: SKILLMAN
• Citation: State v. Marcus, 294 N.J.Super. 267, 683 A.2d 221 (N.J. Super. App. Div. 1996)
• Decision Date: 17 October 1996
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Morey MARCUS, Defendant-Appellant.

Page 267

294 N.J.Super. 267

683 A.2d 221

STATE of New Jersey, Plaintiff-Respondent, v. Morey MARCUS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 15, 1995.

Decided Oct. 17, 1996.

Charles J. Mysak, Wayne, for appellant.

Linda A. Rinaldi, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General, attorney; Ms. Rinaldi, of counsel and on the brief).

Before Judges SKILLMAN, P.G. LEVY and EICHEN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

The primary issue presented by this appeal is whether the results of DNA tests are admissible in a criminal trial.

After a thirty-two day trial, a jury found defendant guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1)(2), felony murder, in violation of N.J.S.A. 2C:11-3a(3), and attempted aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(3) and (4). The court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for purposeful or knowing murder, and a concurrent thirty year term of imprisonment for felony murder. The court also imposed a consecutive ten year term of imprisonment for attempted aggravated sexual assault.

The crimes were committed in Rutherford during the early morning hours of December 28, 1989, after defendant and the victim had been seen drinking together in several local bars. Defendant and the victim were seen leaving the last of these bars around 3 a.m. Approximately an hour later, the victim staggered into an all-night gasoline station, completely naked and covered with blood. After asking the persons in the station and the police who arrived shortly thereafter for help, the victim fell unconscious and later died in the hospital. An autopsy revealed that the cause of her death was multiple stab wounds to the neck, chest and legs.

Within a few minutes after the victim walked into the gasoline station, a police officer responding to the scene observed defendant's van parked nearby with its lights on and its side passenger door open. When the officer paused to ask defendant what he was doing, defendant said he was on his way to work but had stopped to urinate. After writing down the van's license plate number, the officer proceeded to the gasoline station. A tow truck operator at the gasoline station later informed the officer that he had seen a van, with its side passenger door open, go through a stop sign at an intersection near the gasoline station around the same time that the victim arrived there mortally wounded. The police later found a dress, purse, sweater, coat and jewelry belonging to the victim in the same vicinity where defendant's van had been parked, and at trial defendant admitted discarding these items at that location.

The police investigation of the crime scene revealed a trail of the victim's bloody footprints in snow that had fallen earlier that evening, which ran a distance of three or four blocks to a point of origin. At this location, the police observed a large pool of blood, boot prints which roughly matched the size of boots later seized from defendant, and tire tracks.

Approximately a half hour after the local police officer's observation of defendant near the murder scene, defendant was apprehended for drunk driving by two New Jersey State troopers. The troopers made a cursory inspection of the interior of the van and noticed a hunting knife and female high heel shoes. One of the troopers also noticed dried blood on defendant's knuckles and forehead as well as the top of his right boot. At trial, defendant acknowledged that he threw the victim's high heel shoes into a vacant lot after retrieving his van from the State Police.

The police were unable to find the knife used to inflict the stab wounds upon the victim. However, the police found an empty knife sheath inside defendant's van that could have been used to carry the type of knife that caused the wounds. The police also found blood stains all over the inside of the van. Serology tests definitively determined that the bloodstains could not have come from defendant but that the victim could have been the source.

Defendant was arrested less than twenty-four hours after the crime and questioned by the police. Defendant initially claimed that he had left the victim in the parking lot of a bar at approximately 3 a.m. and then drove away. However, after the police confronted defendant with the fact that an officer had seen him near the scene of the crime shortly after 4 a.m., defendant changed his story and asserted that he had driven the victim to a secluded spot after she agreed to have sex with him. According to defendant, the victim undressed and got into the back of his van, but suddenly began acting erratically, first yelling and screaming, and then attempting to stab him with a knife she apparently had taken out of her purse. Defendant asserted that after briefly struggling with him, the victim left the van and headed in the direction of the gas station, naked but unharmed. Although defendant at first denied stabbing the victim, after further police interrogation he said that he could not remember stabbing her but that "it's possible."

At trial, the State also presented DNA evidence through experts who testified that the DNA print patterns of bloodstains found on a pair of defendant's blue jeans seized from his bedroom matched those of the victim and that defendant's blood could not possibly have been the source of these bloodstains. Defendant responded with experts who challenged the methodology of the State's DNA testing and the results it produced.

On appeal, defendant makes the following arguments:

I. THE DNA EVIDENCE AND TESTIMONY IN THIS CASE SHOULD NOT HAVE BEEN ADMITTED, BECAUSE NEITHER THE PROCEDURE USED BY LIFECODES, NOR THE RESULTS OBTAINED, PARTICULARLY AS TO MATCHES AND THE STATISTICAL INTERPRETATION OF SAME, HAVE BEEN GENERALLY ACCEPTED AS RELIABLE IN THE SCIENTIFIC COMMUNITY.

II. THE EXCLUSION BY THE TRIAL COURT OF STATEMENTS MADE BY THE VICTIM WHILE SHE WAS INVOLUNTARILY COMMITTED AT BERGEN PINES HOSPITAL THAT SHE "HAD THE NERVE TO KILL HERSELF", AND THAT SHE WISHED "TO DESTROY" HER BOYFRIEND'S CAR WITH A HAMMER, WAS PREJUDICIAL TO THE DEFENSE AND COMPROMISED THE DEFENDANT'S RIGHT TO A FAIR TRIAL IN THAT THE DEFENDANT'S VERSION OF THE ALLEGED INCIDENT WOULD HAVE BEEN SUPPORTED BY SAID TESTIMONY.

III. IT WAS INAPPROPRIATE FOR THE TRIAL JUDGE TO RESPOND TO THE JURY'S QUESTION AS TO THE APPLICABILITY OF THE DEATH PENALTY IN THIS CASE, TO THE EFFECT THAT IT DID NOT APPLY, BECAUSE PUNISHMENT IS NOT WITHIN THE JURY'S PROVINCE, AND ANY INSTRUCTION CONCERNING SAME TENDS TO DIMINISH THE PRESUMPTION OF INNOCENCE.

IV. IT WAS HIGHLY PREJUDICIAL TO THE DEFENDANT'S RIGHT TO A FAIR TRIAL FOR THE TRIAL JUDGE TO PERMIT THE INTRODUCTION OF EVIDENCE BY THE STATE OF A COLLECTION OF KNIVES FOUND IN DEFENDANT'S HOME AND WHICH HAD, BY THE STATE'S OWN ADMISSION, NO EVIDENTIARY VALUE TO THIS CASE, NOR WAS IT RELEVANT OR PROBATIVE AS TO ANY WEAPON USED IN THE ALLEGED INCIDENT.

V. DEFENDANT'S RIGHT UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS, TO A FAIR AND SPEEDY TRIAL, WAS VIOLATED BY THE MORE THAN THREE-YEAR DELAY IN BRINGING THE DEFENDANT TO TRIAL.

VI. ONCE THE JURY WAS SWORN, THE TRIAL JUDGE ABUSED HIS DISCRETION IN EXCUSING A JUROR FOR A FINANCIAL HARDSHIP, AND THUS, DEPRIVED THE DEFENDANT OF THE RIGHT TO A FAIR TRIAL.

VII. THE EXCLUSION OF THE VICTIM'S PAST HISTORY OF VIOLENT ACTS AND WORDS, BY THE TRIAL COURT, AS CONTAINED IN VARIOUS POLICE AND MEDICAL RECORDS, DEPRIVED THE DEFENDANT OF THE RIGHT TO A FAIR TRIAL ON ALL THE RELEVANT AND PROBATIVE EVIDENCE.

We conclude for the reasons set forth at length in section I of this opinion that DNA analysis is generally accepted within the scientific community and that the State established a proper foundation for the admission of its experts' DNA analysis of bloodstains relevant to this case. For the reasons set forth in sections II and III of this opinion, we also reject defendant's arguments that the trial court erred in responding to the jury's inquiry regarding the applicability of the death penalty to this case and that the State violated his constitutional right to a speedy trial. Defendant's other arguments are clearly without merit and do not require discussion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's conviction and sentence.

I

"In New Jersey, the results of scientific tests are admissible at a criminal trial only when they are shown to have 'sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of truth.' " Romano v. Kimmelman, 96 N.J. 66, 80, 474 A.2d 1 (1984) (quoting State v. Hurd, 86 N.J. 525, 536, 432 A.2d 86 (1981)). However, scientific acceptability need not be predicated upon universal agreement in the absolute infallibility of the techniques, methodology or procedures that underlie the scientific evidence. Ibid. The party offering such evidence is only required to show that the scientific technique has gained general acceptance within the scientific community. Ibid.; see also State v. Spann, 130 N.J. 484, 509-10, 617 A.2d 247 (1993) (reaffirming New Jersey's continued use in most contexts of the "general acceptance by the relevant scientific community" test); but cf. State v. Fertig, 143 N.J. 115, 126-27, 668 A.2d 1076 (1996) (reaffirming the admissibility of hypnotically refreshed testimony under the "Hurd guidelines" even though courts in other jurisdictions have barred such testimony on the ground that the phenomenon of hypnotically refreshed memory is not generally accepted within the scientific community); compare Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-94, 113 [683 A.2d 225] S.Ct. 2786, 2796-97, 125 L.Ed.2d 469, 482-83 (1993).

There are three ways a party offering the results of scientific evidence can show its general...