State v. Spann

• Decision Date: 05 January 1993
• Citation: 617 A.2d 247,130 N.J. 484
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Joseph M. SPANN, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 484

130 N.J. 484

617 A.2d 247

STATE of New Jersey, Plaintiff-Appellant, v. Joseph M. SPANN, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 27, 1990.

Decided Jan. 5, 1993.

Carol M. Henderson, Deputy Atty. Gen., for plaintiff-appellant (Robert J. Del Tufo, Atty. Gen., attorney; Steven E. Lessick, Deputy Atty. Gen., of counsel and on the brief).

Michael B. Einschlag, Designated Counsel, for defendant-respondent (Wilfredo Caraballo, Public Defender, attorney).

PER CURIAM.

Defendant, Joseph M. Spann, was convicted of sexual assault, a second-degree crime under N.J.S.A. 2C:14-2c(3). The statute criminalizes sexual penetration when the defendant has supervisory or disciplinary power, by virtue of his "legal, professional or occupational status" and when the victim is "on probation or parole, or is detained in a hospital, prison or other institution...." Defendant was a corrections officer at the Salem County Jail, where the victim was incarcerated on a detainer from the Immigration and Naturalization Service. Under those circumstances, intercourse itself is the crime, and here the proof of intercourse was strong, the verdict clearly sustainable even without the evidence challenged in this appeal. We find, however, as did the Appellate Division, that evidence was improperly admitted, and we cannot say that it was harmless. The admissibility of the evidence and harmless error were the only two points asserted in the State's petition for certification following the Appellate Division's reversal of the conviction. State v. Spann, 236 N.J.Super. 13, 563 A.2d 1145 (1989).

As noted above, the only real issue, given the nature of the crime, was whether defendant had intercourse with the prisoner. Consent, force, or threats are irrelevant under the offense that was charged. The challenged evidence was that defendant was the father of the victim's child, conception clearly having occurred while she was imprisoned. If he was the father, criminal intercourse had occurred. The evidence consisted of blood and tissue tests, including human leukocyte antigen (HLA) tissue tests used to prove not that defendant was or was not excluded as the father but that he was the father. The specific item of that proof objected to by counsel was the State expert's opinion, based on those tests, that the "probability" of defendant's paternity was 96.55%. Obviously, that probability opinion, if improperly admitted, was highly prejudicial. If the expert's opinion were credited by the jury, unusually strong contradictory evidence would be required to overcome it. The expert's qualitative description of the percentage, expressed in non-mathematical terms (known as the "verbal predicate"), was that it was "very likely" defendant was the father. As stated by the prosecutor in summation, "guilt ... is proved to a mathematical certainty ... by carefully applying an objective scientific technique to the hard facts of this case."

The expert, testifying that the probability of defendant's paternity was 96.55%, knew absolutely nothing about the facts of the case other than those revealed by the blood and tissue tests of defendant, the victim, and the child, and that defendant was the accused.

I

Use of Blood-Tissue Specimens to Prove Paternity;

Calculation of Probability of Paternity; Use of

Calculation in this Case

Until relatively recently, blood-grouping tests to establish paternity were admissible only to exculpate the accused in paternity cases. N.J.S.A. 2A:83-3 (repealed by New Jersey Parentage Act, L. 1983, c. 17, § 23). Science had proven, and there is apparently no question about the validity of the proposition and certainly none raised in this case, that certain blood specimens completely exclude others. Thus, blood specimen "X," found at the scene of the crime and presumably that of the criminal, cannot come from an accused who has blood specimen "Y." Similarly, blood specimens from mother and child that conclusively determine that only a man with blood specimen "X" could be the father eliminate a man with blood specimen "Y." In such cases, if the accused's blood was excluded, he was innocent; in paternity disputes, he was not the father. In New Jersey paternity cases, this limited use of blood tests, to prove only that defendant was not the father was codified in 1939. R.S. 2:99-3, N.J.S.A. 2A:83-3 (repealed). On the other hand, however, if the blood specimen was of the kind that could have come from the purported father, the evidence was apparently inadmissible to prove paternity.

The lack of probative force of this evidence for the purpose of proving paternity was thought to warrant its exclusion. Its identifying factor, the fact for instance that 50% of the population, including the accused, have blood that could have produced a specimen matching that of the father, was deemed too insignificant to justify admission if offered as independent proof of paternity, i.e., sufficient proof by itself. Even though insignificantly probative, it nevertheless was admissible as "a link in the chain of evidence" in criminal trials, just as the alleged assailant's blond hair is used against a blond defendant. See State v. Beard, 16 N.J. 50, 58-59, 106 A.2d 265 (1954) (holding type O--the victim's blood type and also the most common type--blood stains on defendant's clothing admissible as "link in the chain of evidence"); see also State v. Alexander, 7 N.J. 585, 593-94, 83 A.2d 441 (1951) (allowing evidence of defendant's blood type at murder trial for purpose of showing it was of the same type as blood found on the murder weapon), cert. denied, 343 U.S. 908, 72 S.Ct. 638, 96 L.Ed. 1326 (1952).

With the advent of multiple tests of blood samples, geneticists were sometimes able to exclude up to 72% of the population from certain blood types, i.e. given that kind of sample, those tests conclusively demonstrated that the sample could have come from only a limited portion of the population--28% of it. Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 256-57 (1976) ["Joint AMA-ABA Guidelines"]. And with the discovery and development of HLA tissue testing--a test not of blood alone but of tissues of all kinds--the combination of blood and tissue testing, and on many occasions HLA testing alone, very often brought the exclusionary percentage to 95% and higher. Ibid.; D.H. Kaye, Plemel As a Primer on Proving Paternity, 24 Willamette L.Rev. 867, 868 (1988) ["Kaye, Plemel As Primer "]. In contrast to earlier blood-group testing, which had limited utility in identifying rare blood types, the advanced HLA systems enable geneticists to identify a rare blood type "in virtually every case." ¹ Robert W. Peterson, A Few Things You Should Know About Paternity Tests (But Were Afraid to Ask), 22 Santa Clara L.Rev. 667, 675 (1982) ["Peterson, Paternity Tests "].

When the portion of the population excluded ran as high as, e.g., 98%, it became intuitively obvious that if only 2% of the population could produce that sample and defendant was part of the 2%, it was not only consistent with his guilt, but tended to prove it--here that he was the father. Tests of blood and tissue samples started to be admitted not only to prove exclusion but also to prove paternity. See Essex County Welfare Div. v. Harris, 189 N.J.Super. 479, 482-83, 460 A.2d 713 (App.Div.1983); J.H. v. M.H., 177 N.J.Super. 436, 441, 426 A.2d 1073 (Ch.Div.1980); Malvasi v. Malvasi, 167 N.J.Super. 513, 515, 401 A.2d 279 (Ch.Div.1979). With an estimated one out of every six children born out of wedlock in this country, Kaye, Probability of an Ultimate Issue, supra n. 1, 75 Iowa L.Rev. at 76 n. 5, testimony revealing the probability of paternity becomes important, to society in general and to the welfare system in particular. Prodded by federal laws aimed at identifying fathers for child-support purposes where children received welfare benefits, New Jersey amended its parentage laws, for the first time allowing the court to require blood or genetic tests in contested paternity cases and to compel such tests when requested by a party. N.J.S.A. 9:17-51a. Whenever HLA tests are ordered by the court, they are admissible in evidence to establish "the positive probability of parentage." N.J.S.A. 9:17-51e. Moreover, "evidence relating to paternity may include ... genetic or blood tests, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity". N.J.S.A. 9:17-52.

Precisely that kind of positive proof of paternity was used in this criminal case, as it had been in prior civil paternity cases without objection. See, e.g., Jones v. Jones, 242 N.J.Super. 195, 200, 576 A.2d 316 (App.Div.), certif. denied, 122 N.J. 418, 585 A.2d 412 (1990); Middlesex County Bd. of Social Servs. v. G.G., 237 N.J.Super. 322, 323-34, 567 A.2d 1019 (App.Div.1989). The State's expert stated that the blood and tissue samples, combined with statistical data reflecting the number of men with the relevant genes, excluded 99% of the North American black male population as possible fathers. In other words, only 1% of the presumed relevant population had the type of blood and tissue that the father must have had, and further, defendant was included within that 1%.

In calculating a final probability of paternity percentage, the expert relied in part on this 99% probability of exclusion. She also relied on an assumption of a 50% prior probability that defendant was the father. This assumption, not based on her knowledge of any evidence whatsoever in the case, placed the odds of defendant being the father--wholly apart from the blood-tissue test--at fifty-fifty. The fifty-fifty odds are usually expressed as "defendant being no more or less likely of being the father than any other man chosen at random." The claim of the victim (that defendant is the father) and the claim of the accused (that he is...