State v. Williams

• Decision Date: 05 August 1991
• Citation: 252 N.J.Super. 369,599 A.2d 960
• Court: New Jersey Superior Court
• Parties: STATE of New Jersey, Plaintiff, v. Richard Charles WILLIAMS, Defendant.

Page 369

252 N.J.Super. 369

599 A.2d 960

STATE of New Jersey, Plaintiff, v. Richard Charles WILLIAMS, Defendant.

Superior Court of New Jersey, Law Division Somerset County.

Decided Aug. 5, 1991.

Anthony G. Simonetti, Trenton for plaintiff (Robert J. Del Tufo, Atty. Gen., attorney).

Lynne F. Stewart, New York City, for defendant.

IMBRIANI, P.J.Cr.

This case involves the admissibility of DNA and Gm/Km blood tests. The purpose of this hearing is to determine the scientific reliability and, hence, the admissibility of these tests. ¹

Blood consists of three parts, red blood cells, white blood cells, and plasma, and to thoroughly compare blood obtained from two sources, it is essential to analyze each part. For many years scientists have been able to identify the enzyme genetic markers contained in and on red blood cells by electrophoresis, and these test results have routinely been admitted in evidence. See State v. King, 215 N.J.Super. 504, 518-520, 522 A.2d 455 (App.Div.1987). Defendant does not dispute the validity of this test.

For several decades scientists have been able to analyze plasma with the use of a Gm/Km test which reveals the presence of Gamma markers (Gm) and Kappa markers (Km). Although defendant does not dispute the validity of this test we must nonetheless determine whether it is scientifically reliable since no court in New Jersey has ever addressed this issue.

A test to analyze white blood cells has been available for several years (see infra ), but its requirement of a large specimen for analysis has frustrated its widespread use for forensic purposes. However, recent research in the structure and function of deoxyribonucleic acid (DNA) has revolutionized our knowledge of molecular biology and genetics which, it is claimed, now offers a scientifically reliable method to identify from minute specimens the characteristics of white blood cells with the use of a DNA test.

The purpose of this hearing is to determine whether DNA and Gm/Km tests have attained sufficient scientific reliability to permit their admissibility. ²

The need for these tests arose out of events that occurred on December 21, 1981, when New Jersey State Trooper Philip Lamonaco was fatally shot by the occupants of a Chevrolet Nova which he stopped on Route 80 West near the Delaware Water Gap. Before being fatally wounded, Trooper Lamonaco managed to fully discharge his revolver and shatter the windshield of the Nova. Several hours later the Nova was located abandoned several miles away. Blood was observed on the front passenger's seat, headrest and door panel. Swabbings of the blood were collected from the vehicle at the time the crime occurred and have been preserved by the State in a frozen condition.

In the summer of 1990, almost nine years later, the frozen blood swabs were analyzed and later compared with the use of DNA and Gm/Km tests to blood extracted on March 4, 1991 pursuant to a court order from defendant Williams, and co- Thomas Manning. The test results positively exclude Manning as the source of the blood found in the Nova, but are consistent with the blood characteristics of defendant. Both men were previously tried for the murder of Trooper Lamonaco. Manning was found guilty of murder, but the jury was unable to reach a verdict as to Williams and this re-trial ensues.

At the outset, it is important to understand that the blood tests performed in this case do not positively identify the person who is the source of the blood spots removed from the Nova. This is unlike a fingerprint analysis which can identify the person who committed a crime because no two fingerprints are alike and, if a person has the same fingerprint as was found at the scene of a crime, this is sufficient evidence to support a conviction. Roesch v. Ferber, 48 N.J.Super. 231, 239, 137 A.2d 61 (App.Div.1957).

Blood tests performed in this case can only indicate the percentage of the Caucasian population who possess the same blood characteristics as are contained in the blood specimen obtained from the Nova. Defendant is a Caucasian. The State will offer population frequency data indicating that Caucasians who have the same characteristics as found in the blood spot removed from the Nova are as follows: (1) 2.9% possess the same DNA characteristics, (2) 33 1/3% possess the same Gm characteristics, and (3) 13% possess the same enzyme markers. By using a mathematical theorem known as the product rule, the State contends that the frequency of occurrence of all the blood characteristics found in the blood spot removed from the Nova existing in one person is only one out of every 800 members of the Caucasian race, or 0.1244%. Since only about one billion of the five to six billion people on earth are Caucasians, it can be mathematically be determined that approximately 1,250,000 Caucasians have the same blood characteristics as exist in the blood removed from the Nova. ³

At first blush it would appear that the value of this evidence is minimal. Maybe so. But perhaps not. We know that other human characteristics are routinely admitted in evidence, such as age, weight, height, and color of hair and eyes, even though they are possessed by a large percentage of the population and no one factor can positively identify the person who committed the crime. Nonetheless, we allow such evidence so that the jury can compare the physical characteristics possessed by the person who committed the crime with those of defendant and determine for themselves what weight, if any, to give to the similarities. As was said in State v. Beard, 16 N.J. 50, 106 A.2d 265 (1954), where the trial court admitted evidence that defendant's clothing contained Type O blood, as did blood of the victim and blood found in soil at the scene of the crime:

[n]o one circumstance alone would be sufficient to prove the defendant guilty of the crime laid against him, but each fact, taken in connection with others as constituting a chain of circumstances tending to corroborate the State's case and to support the inference that the accused was the person who committed the crime, was admissible in evidence. [at 58-59, 106 A.2d 265]

Since DNA and Gm/Km tests have never been allowed in evidence in New Jersey, we must first ascertain the standards for the admissibility of newly developed scientific tests. They are now well defined. It was first observed in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) that:

[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential forces of the principles must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [at 1014; emphasis supplied] This test has been essentially adopted by most state courts, including New Jersey, which admits the results of newly developed scientific tests when they have attained:

a sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of truth. [State v. Cary, 49 N.J. 343, 352, 230 A.2d 384 (1967) ].

Reliability is "demonstrated by showing that the scientific technique has gained general acceptance within the scientific community". Romano v. Kimmelman, 96 N.J. 66, 80, 474 A.2d 1 (1984).

This is not to suggest that our responsibility is simply one of scientific "nose counting," which some have suggested is a defect of the Frye test. Rather we must determine whether the test has a sufficient foundation of reliability so that it can assist the jury to determine a fact in issue. There is no requirement that the new technique be perfect. Indeed, Romano stated that:

Scientific acceptability need not be predicated upon a unanimous belief or universal agreement in the total or absolute infallibility of the techniques, methodology or procedures that underlie the scientific evidence. [96 N.J. at 80, 474 A.2d 1]

The factors which are relevant to determine reliability and which we have considered are the following:

1. the care with which a scientific technique has been employed;

2. the existence of standards upon which the results of qualified experts may be judged;

3. the quality control techniques that are available to assure the integrity of the tests results, such as the use of frequent "blind tests";

4. the anticipated rate of error inherent in the testing process;

5. the education, training and experience of the proponents of the proposed technique; 6. the lack or absence of testimony or evidence contesting the reliability of the new technique;

7. the existence of a considerable body of literature dealing with the offered technique; and

8. the number of tests which have been conducted with the use of the new technique.

There are three methods of proving the general acceptance of a newly discovered scientific principle or theory: (1) expert testimony, (2) authoritative scientific and legal writings, and (3) judicial opinions. State v. Kelly, 97 N.J. 178, 210, 478 A.2d 364 (1984). The burden is on the proponent to "clearly establish" each of these methods. Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 378, 522 A.2d 405 (1987).

We say without any embarrassment or apology that the evidence offered by the State at this hearing was the most complex scientific testimony which this court has heard in 15 years on the trial bench. We did not fully understand every aspect of the testimony offered. But it is not necessary that the court fully understand the intricate theories and scientific principles which underlie a scientific procedure. Indeed, the reason we receive expert testimony is because it concerns a subject matter which is "so distinctively related...