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State v. Dishon

February 6, 1997


On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Approved for Publication February 6, 1997.

Before Judges Havey, Brochin and Eichen. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by


At issue in this criminal appeal is: (1) whether defendant was deprived of a fair trial where the trial Judge denied defendant's request to be present during an in camera voir dire of prospective jurors, and the voir dire was conducted after defendant had exercised all of his peremptory challenges; and (2) whether the Judge erred in admitting into evidence the results of DNA polymerase chain reaction (PCR) testing to link defendant with the crimes.

We conclude that the procedure followed by the trial Judge deprived defendant of his fundamental right to be present during a critical stage of the criminal proceeding and of his substantial right to exercise his peremptory challenges in a knowing and meaningful way. We therefore reverse defendant's aggravated manslaughter and weapons possession convictions and remand for retrial. For purposes of the retrial, we reject defendant's array of challenges to the admission of the PCR-DNA test results, and conclude that the evidence was properly admitted.

Under a Monmouth County indictment, defendant was charged with first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and -3a(2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5d; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and theft of movable property, N.J.S.A. 2C:20-3a. He was tried by a jury and found guilty of felony murder. He was acquitted of purposeful or knowing murder and armed robbery, but found guilty of the lesser-included offenses of aggravated manslaughter and second-degree robbery. He was also found guilty of the weapons possession charges and theft of a vehicle.

We reversed defendant's convictions by opinion dated April 20, 1989 (A-2017-85T4), and remanded for a new trial. Prior to retrial, the State moved to admit the results of PCR-DNA evidence to link defendant with the crimes. *fn1 The trial Judge ruled that PCR-DNA testing was generally accepted as a reliable scientific testing procedure and that no pretrial hearing was necessary with respect to that issue. However, the Judge conducted a lengthy Frye *fn2 hearing to determine whether: (1) the procedures followed were reliable; (2) the polymerase used (Taq) was sufficiently reliable; and (3) the statistical analysis and quantification of the test result was sufficiently reliable to be admitted at trial. After the hearing, during which expert evidence was presented by both sides, the Judge ruled that the PCR-DNA evidence proffered by the State was admissible.

After a trial by jury, defendant was acquitted of felony murder and robbery, but convicted of aggravated manslaughter, the weapons possession charges, and third-degree theft of a vehicle and other personal property valued over $500. For aggravated manslaughter, defendant was sentenced to a twenty-year custodial term, with a ten-year period of parole ineligibility, to be served consecutively to a term that defendant was serving on an unrelated conviction. A concurrent five-year term was imposed on the possession of a weapon for an unlawful purpose conviction and a concurrent eighteen-month term was imposed on the unlawful possession of a weapon conviction. A consecutive five-year term with a two-and-one-half-year period of parole ineligibility was imposed on the theft conviction.

On appeal, defendant raises the following points:

Point I - The introduction of the DNA evidence produced through the polymerase chain reaction (PCR) procedure denied defendant his right to a fair trial.

A. The population frequency statistics used by the State are unreliable.

B. In the alternative, the court's failure to apply the ceiling principle with regard to the statistical evidence denied the defendant a fair trial.

C. The State has not proven that proper protocol and procedures were followed by Dr. Blake in this case; therefore, admission of the PCR-DNA evidence against the defendant denied him a fair trial.

D. The State's failure to produce Jennifer Mahovolich [sic] to testify renders the PCR-DNA test results inadmissible.

E. The court's decision to take judicial notice that the PCR procedure is scientifically reliable and acceptable denied the defendant a fair trial.

F. The erroneous admission of PCR-DNA evidence was not harmless.

Point II - Prohibiting the defendant from being present at the in camera inquiry with each juror concerning the issue of homosexuality denied defendant his right to a fair trial.

Point III - The court's ruling that the defense was not permitted to examine witnesses or introduce evidence which indicated that the victim was involved in sadomasochism and had suffered bruises and injuries during the two months preceding his death denied the defendant his right to a fair trial.

Point IV - Testimony of Detectives Holmes and Sommer that the defendant was finger-printed at least three days before the crime committed in this case denied the defendant a fair trial.

Point V - The admission of what the State alleged to be Mr. Dishon's weight when he was admitted into the county jail denied the defendant a fair trial.

Point VI - Allowing the State to introduce evidence that defendant supposedly carried a weapon and/or knife denied the defendant his right to a fair trial.

Point VII - Admission of evidence that defendant supposedly told Steven Van Dusen that he hurt someone real bad and might have killed him denied the defendant the right to a fair trial.

Point VIII - Certain statements made by the prosecutor were improper and deprived the defendant of a fair trial.

Point IX - The Judge erred in denying the defendant proper credit (jail credits) from the time of the reversal of his murder conviction to the time of his new sentence.

Point X - The sentence imposed against defendant is excessive.

Point XI - The sentence imposed under this indictment should have been concurrent to defendant's sentence under Indictment No. 366-2-85 because his plea agreement for that indictment specifically required that the sentences under both indictments be concurrent.

The State presented evidence establishing that the victim, Norman Anctil, was found dead in his Sea Bright apartment on December 4, 1984. There was blood spattered on his body, clothing and on his apartment furniture and wall. The top of his jeans was open and the zipper was halfway down. The police found a pair of white jeans on the bedroom floor with blood stains on the left thigh area.

Investigation revealed that a Seiko watch, stereo and television set had been taken from Anctil's apartment. There was no evidence of forced entry. A latent fingerprint lifted from a glass door in the apartment was later found to be a positive match with defendant's fingerprint.

Anctil had been stabbed thirty-six times and an autopsy revealed that the cause of death was blood in the plural cavities due to lacerations of the heart. According to the coroner, Anctil died between 10 a.m., December 2 and 10 a.m., December 3, 1984.

The police investigation centered on the fact that the homicide may have been homosexually related, in part based on interviews with Anctil's co-workers. Also, bartenders at local gay bars recognized Anctil, and one recalled that Anctil was at a local bar on Saturday night, December 1, 1984. It was also determined that defendant frequented the gay bars in Asbury Park. Shortly after Anctil's death, the investigators found Anctil's car in the area of defendant's Asbury Park residence. After the positive match of defendant's fingerprint with the fingerprint lifted from Anctil's apartment, investigators from the prosecutor's ...

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