Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.
[198 NJSuper Page 23] This appeal presents the question of whether defendant's constitutional rights of due process and confrontation were violated by reason of the State's failure to preserve physical evidence. In our view, the destruction of the "molotov cocktail"
allegedly used by defendant in the attempted arson was not such a violation of defendant's rights, nor were there other trial errors warranting the reversal of the conviction. We affirm.
A two count indictment was returned against defendant charging him with attempted arson contrary to N.J.S.A. 2C:17-1a and N.J.S.A. 2C:5-1 and with unlawful possession of an explosive device contrary to N.J.S.A. 2C:39-4b. At the ensuing jury trial defendant was found guilty on both counts but at sentencing the conviction for unlawful possession of an explosive device was vacated and merged with the conviction for attempted arson.
Testimony disclosed that in the early hours of August 4, 1981 defendant was seen placing a bottle having a wick or cloth on its top in one of the first floor windows of a two and one-half story residential building in Newark, then lighting the cloth or wick and leaving the scene. The flame quickly went out and the witness observed gasoline and cigarette butts inside the bottle. The police were called and later in the morning members of the Fire Department's arson squad commenced an investigation. On the windowsill they found a one-quart beer bottle filled with gasoline, debris, cigarette butts, small rocks, aluminum foil and a partially burned cloth wick in the bottle's neck (the molotov cocktail). The bottle was removed and sent to the laboratory of the Police Department for analysis of its contents. A chromatograph analysis disclosed that the liquid substance was a gasoline fraction of petroleum hydro-carbon distillate. No quantitive analysis as to the percentage of gasoline in the solution was made nor was any examination of the bottle made for fingerprints. The bottle and its contents were returned to the Fire Department offices and kept on a window sill for about two weeks. Considering the bottle and its contents to be dangerous, the fire chief directed that it be disposed of. The liquid was then poured out and the bottle and wick destroyed. Officers who had handled the bottle testified that the liquid smelled like gasoline.
The Police Department chemist testified as to the chromatograph results and identified the liquid in the bottle as gasoline. However, no testimony was offered regarding the nature, accuracy and intricacy of the chromatograph utilized nor was any evidence offered as to the reliability of this testing machine, the methodology followed in its use or the acceptance by the scientific community of gas chromatography as a means of identifying liquid substances.
Defendant asserts error by the trial court in denying his motion to dismiss the indictment because of the State's destruction of the bottle and its contents. He claims the failure to preserve these physical properties precluded him from effectively defending himself in that he was unable to affirmatively utilize potentially exculpatory evidence. Thus his right to due process of law and a fair trial were abridged. Defendant also contends the destruction of this evidence violated his constitutional guarantee of confrontation as it prevented him from meaningfully confronting and examining the chemist who testified to results of the analyses of the contents of the bottle. He further challenges for the first time the admissibility of these test results on the ground that a proper foundation had not been laid as to the reliability of the chemist's procedure and the equipment used. Although not raised below, it is also now asserted the prosecutor in her summation, in attempting to bolster the credibility of a State's witness, improperly made statements not based upon evidence of record.
Specifically, defendant contends that:
1. The trial court erred in denying defendant's motion to dismiss the indictment. Defendant was denied due process of law by the failure of the state to properly collect and preserve critical and potentially exculpatory physical evidence.
2. The State's negligent destruction of the physical evidence and defendant's resulting inability to independently test and examine the physical evidence was a denial of defendant's right to confrontation guaranteed by the Sixth Amendment to the United States Constitution.
3. The State failed to meet the legal criteria codified by Evidence Rule 56 for the admission of scientific evidence. Introduction of the scientific evidence was improper and had the ...