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State v. Harvey

July 30, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NATHANIEL HARVEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Middlesex County.

The opinion of the court was delivered by Pollock, J. Justices Garibaldi, Stein and Coleman join in Justice POLLOCK's opinion. Justice Handler has filed a separate, Dissenting opinion. Justice O'hern, concurs in the opinion and judgment of the Court except with respect to Part II thereof. He would therefore affirm the convictions except insofar as the conviction of murder establishes death eligibility. He joins Part Two, Section I of Justice Handler's opinion on the issue of a non-unanimous verdict.

The opinion of the court was delivered by: Pollock

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey, v. Nathaniel Harvey (A-23-95)

Argued April 29, 1996 -- Decided July 30, 1997

Pollock, J., writing for a majority of the Court.

Defendant appeals from his murder conviction and death sentence. The primary issue raised is the admissibility of DNA evidence.

The body of Irene Schnaps was found in her Plainsboro apartment on June 17, 1985. She had received approximately fifteen blows to the head. Some of the blows fractured her skull and caused direct injury to the brain. In addition, some of her teeth were knocked out, her jaw had been broken, and her face and neck were bruised. The medical examiner concluded that the combination of the blows had killed Schnaps, and that she had bled profusely.

Investigating police detected no signs of forced entry. Schnaps's bedroom, however, was a scene of obvious struggle. Blood stains were on the carpet and throughout the room. It appeared that someone had attempted to wipe Schnaps's body clean of blood. A white pillowcase bore a bloody sneaker-print with a chevron pattern and the letters "PON." Also found in the bedroom were an empty Seiko-LaSalle watch box, an empty Olympus camera box, and an empty jewelry box. Schnaps's pocketbook was open and did not contain any money.

Throughout the summer and autumn of 1985, police in the neighboring community of West Windsor were searching for the perpetrator of a series of unsolved burglaries and sexual assaults. Based on eyewitness descriptions, they believed that the perpetrator was a stocky black male, under five-feet three and one-half inches tall, who traveled on foot or by bicycle. Defendant fit the physical description. On October 28, 1985, police investigated three burglaries and arrested defendant after he was seen standing with his bicycle at the edge of a soybean field. One of the burglary victims identified defendant at a subsequent "show-up." Defendant confessed to committing a number of burglaries in West Windsor, as well as a sexual assault.

Defendant consented to the search of his car and his Jamesburg apartment for evidence involving an unrelated sexual assault. (Defendant claimed to be living in Jamesburg with his father, although it was later determined that he was living in West Windsor with his estranged wife.) Police discovered two watches in the car, one a Seiko-LaSalle like the watch missing from Schnaps's apartment. Defendant was arraigned for Schnaps's murder. He said that he would tell police about the murder, but first wanted to speak to his father. After defendant spoke with his father, police failed to administer new Miranda warnings. Defendant confessed to murdering Schnaps shortly thereafter.

At defendant's first trial, the State relied on defendant's confession. A jury convicted defendant of purposeful or knowing murder, robbery, burglary, and other charges. The same jury sentenced defendant to death in the penalty phase. Defendant's first appeal resulted in a reversal of the conviction. The Court found that the trial court's jury instructions did not comport with its opinion in Gerald, which required that a jury must be instructed separately on the crimes of intentional murder and serious-bodily-injury murder. The Court also held that defendant's confession was inadmissible, since defendant did not receive new Miranda warnings after invoking his right to silence.

Before defendant's retrial, the State hired Cellmark Diagnostics Laboratory to conduct DNA tests on blood recovered at the crime scene. At trial, the State relied on DNA evidence to prove defendant's guilt. The State called two witnesses from Cellmark, who testified generally that DNA tests conducted on blood samples at the crime scene were genetically comparable to defendant's DNA. According to these witnesses, defendant's genotypes for the genetic markers examined were common to only 1-in-140O African Americans. Additionally, a forensic scientist testified that one of the hairs found on Schnaps's back did not belong to her, and that it was consistent with a control hair taken from defendant. The same scientist testified that a pair of Pony sneakers seized from defendant's ex-wife's apartment were consistent with the sneaker impression found on the pillowcase in Schnaps's apartment.

Defendant called as an expert a forensic biologist who testified that the DNA tests conducted by Cellmark were "scientifically indefensible." He disputed the 1-in-1400 calculation claimed by the State's experts, concluding that the genetic makeup of the blood recovered from the crime scene could be found in approximately 1-in-50 or 1-in-200 African Americans.

HELD: Defendant's convictions and death sentence are affirmed.

1. Defendant cites to the trial court's failure to give a non-unanimous Mejia charge (jury must be instructed that unanimity is not required in determining whether defendant intended to kill). Such error, however, can he considered harmless when the evidence of intent to kill is overwhelming and no rational basis exists for concluding that defendant had intended to inflict only serious bodily injury. In defendant's first trial, it was the statement in his confession that he struck the victim once in response to her striking him that provided a rational basis for a juror to conclude that defendant intended only to injure his victim and not kill her. Defendant's confession was not before the jury in the retrial, and without it, the evidence does not provide a rational basis to support a finding that defendant's intent was to inflict only serious bodily injury. (pp. 15-22)

2. The trial court's instruction and the verdict sheet prevented the jury from considering felony murder until after it had first found defendant guilty of purposeful or knowing murder. Although the charge was flawed, the error was not capable of producing an unjust result. (pp. 23-25)

3. The Court accepts the admission into evidence of the results of DNA polymarker testing, which is used primarily on small samples of genetic material, such as blood stains. On this record, the Court concludes that the scientific community generally accepts polymarker testing, including dot-intensity analysis. The admission of the testimony of the State's experts about the results of the DNA tests was not error. The weight of the evidence was for the jury. (pp. 25-68)

4. The trial court's refusal to permit defendant to further challenge the admissibility of polymarker testing at trial did not violate his constitutional right to present a defense, since defendant remained free to introduce evidence relevant to the weight or credibility of the testimony of the State's experts in respect of the testing. (pp. 69-75)

5. The trial court did not err in admitting the State's statistical evidence tending to show that defendant could not be excluded as a contributor to the blood found at the crime scene (the testimony that defendant's genetic markers were shared by one-in-1400 African Americans). The scientific community has generally accepted such statistics. The statistical evidence can be challenged by the presentation of conflicting expert testimony. (pp. 75-93)

6. Defendant's other challenges to his conviction and sentence are rejected. (pp. 93-134)

Defendant's murder conviction and death sentence are AFFIRMED.

JUSTICE HANDLER, Dissenting, in which JUSTICE O'HERN joins, in part, disagrees with the majority's Conclusion that the trial court's erroneous jury charge on the Mejia issue constituted harmless error. (Justice O'Hern joins the Dissent on this point.) Justice Handler is also of the view that the DNA testing relied on by the State in proving defendant's guilt -- dot-intensity analysis -- cannot be considered reliable or generally accepted. In addition, he believes that other significant errors contributed to defendant's conviction and death sentence.

JUSTICES GARIBALDI, STEIN and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE HANDLER has filed a separate, Dissenting opinion. JUSTICE O'HERN, concurs in the opinion and judgment of the Court except with respect to Part II thereof. He would therefore affirm the convictions except insofar as the conviction of murder establishes death eligibility. He joins Part Two, Section I of Justice Handler's opinion on the issue of a non-unanimous verdict.

The opinion of the Court was delivered by

POLLOCK, J.

Defendant, Nathaniel Harvey, appeals directly from a judgment of conviction and sentence of death for the purposeful-or-knowing murder of Irene Schnaps. A jury originally convicted defendant of Schnaps's murder and sentenced him to death in October 1986. This Court reversed that conviction because of errors in the admission of defendant's confession and in the failure of the trial court to give a "Gerald charge." State v. Harvey, 121 N.J. 407, 581 A.2d 483 (1990) (Harvey I), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991). The phrase "Gerald charge" refers to a charge that distinguishes murder when the defendant intended to kill from murder when the defendant intended only to cause serious bodily injury that resulted in death. State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Neither error occurred in the second trial.

In the absence of defendant's confession, the State relied substantially on DNA evidence to establish that defendant was Schnaps's killer. Again, a jury convicted defendant and imposed the death penalty. On this appeal, defendant raises numerous points, including challenges to the admission of the DNA evidence and to the jury charge. After careful review of all of defendant's arguments, we affirm his conviction and death sentence.

- I -

A. Discovery of the Body and the Crime Scene

Schnaps, age thirty-seven, lived alone in a ground-floor apartment at the Hunter's Glen complex in Plainsboro, New Jersey. After she failed to appear at work on June 17, 1985, a concerned coworker went to her apartment and entered through an unlocked door. On discovering Schnaps's lifeless body, he immediately called for assistance.

Investigating police detected no signs of forced entry. The bedroom, however, was a scene of obvious struggle. Blood stains were on the carpet and throughout the room. Schnaps's naked body lay face-up on the floor. She had sustained severe head and facial wounds. Despite the extensive head wounds, no bloodstains were present on Schnaps's chest and stomach.

The matting of several small hairs to the victim's body and the absence of blood on her torso suggested that someone had attempted to wipe the body clean. The carpeting around the body was wet from water. Schnaps's back was covered with blood.

A white pillowcase bore a bloody sneaker-print with a chevron pattern and the letters "PON." Although the bedding appeared clean, blood stained the mattress, the underlying box spring, a cardboard box that protruded from under the bed, and a towel.

The bedroom also included an empty Seiko-LaSalle watch box, an empty Olympus camera box, and an empty jewelry box. In the bathroom, the investigators found Schnaps's pocketbook. The pocketbook was open and did not contain any money.

B. The Autopsy

On June 18, 1985, Dr. Marvin Shuster, the Middlesex County medical examiner, conducted an autopsy. He determined that Schnaps had sustained approximately fifteen blows to the head. The largest wound, six inches long and one inch wide, extended from the front of her forehead to the top of her head. In general, the skull wounds were either curving or linear. The curving wounds were likely caused by hammer blows, and the linear wounds could have been caused by an item akin to a tire iron, a two-by-four, or a dull hatchet or axe. Some of the blows fractured Schnaps's skull and caused direct injury to the brain. Blows had been delivered from both the right and left sides, some from the front, but most from behind.

Triangular pressure marks appeared on both sides of the neck. Some of the victim's teeth were knocked out, and her jaw was broken. The right sides of the neck, jaw, cheek, and forehead were bruised, and she was cut behind one ear.

Unable to attribute death to any particular wound, Dr. Shuster concluded that the combination of the blows had killed Schnaps. Schnaps had bled profusely and died within a matter of minutes.

C. The Apprehension and Interrogation of Nathaniel Harvey

1. October 28, 1985

Throughout the summer and autumn of 1985, West Windsor police looked for the perpetrator of a series of unsolved burglaries and sexual assaults. Based on eyewitness descriptions, they believed that the perpetrator was a stocky black male, under five-feet three-and-a-half inches tall, who usually travelled on foot or by bicycle. The police also believed that the perpetrator of those other crimes might be responsible for Schnaps's murder. Defendant fit the physical description.

On October 28, 1985, police investigating three burglaries arrested defendant after he was sighted standing with his bicycle at the edge of a soybean field in West Windsor. One of the burglary victims identified defendant at a subsequent "show-up."

During questioning by West Windsor police on October 28, defendant confessed to committing a number of burglaries in West Windsor, as well as a sexual assault. Defendant also agreed to accompany the police on a car tour to point out the locations of his crimes.

2. October 29, 1985

At 10:00 a.m. on the following morning, defendant accompanied two detectives on a car tour of West Windsor. At 1:15 p.m., defendant consented to a search of his car and his Jamesburg apartment for evidence related to an unrelated sexual assault. Although defendant gave as his address his father's apartment in Jamesburg, he lived with his estranged wife in West Windsor. Apparently, defendant feared that his wife would lose her welfare benefits if he revealed that he lived with her. After defendant signed the consent form, police transferred him to the Mercer County Detention Center.

While searching defendant's car, the officers discovered two watches, including a Seiko-LaSalle like the one missing from Schnaps's apartment. They notified the Plainsboro Police Department. After obtaining a search warrant, a Plainsboro officer seized the watch. The search of Harvey's Jamesburg apartment did not yield any evidence.

3. October 30, 1985

Following defendant's arraignment for the murder of Schnaps, investigating officers resumed questioning him. At one point, defendant said that "he would tell [them] about the murder but first wanted to speak to his father." After defendant spoke with his father, police failed to administer new Miranda warnings. Shortly thereafter, defendant confessed to murdering Schnaps.

D. The First Trial

On November 19, 1985, a Middlesex County grand jury returned a three-count indictment charging defendant with the purposeful-or-knowing murder of Schnaps, contrary to N.J.S.A. 2C:11-3 (count one), second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count two), and second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count three). Two days later, on November 21, 1985, the Middlesex County Prosecutor filed a Notice of Aggravating Factors pursuant to Rule 3:13-4(a) and N.J.S.A. 2C:11-3c(2), making defendant's case a capital prosecution. The State alleged the following aggravating factors:

1. The murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim [N.J.S.A. 2C:11-3c(4)(c).]

2. The murder was committed for the purpose of escaping detection, apprehension, trial, imprisonment or confinement for robbery and burglary committed by the defendant [N.J.S.A. 2C:11-3c(4)(f).]

3. The murder was committed while the defendant was engaged in the commission of or an attempt to commit, or flight after committing robbery and burglary [N.J.S.A. 2C:11-3c(4)(g).]

The prosecution relied heavily on defendant's confession. Harvey I, supra, 121 N.J. at 415-17. The jury found defendant guilty of purposeful-or-knowing murder, first-degree robbery, second-degree burglary, and felony murder, for which he had not been indicted. At a penalty-phase hearing, the same jury found the presence of all three alleged aggravating factors and returned a sentence of death.

E. Harvey I

On direct appeal, this Court reversed defendant's conviction and remanded for a new trial. The Court held that the trial court's jury instructions on murder did not comport with Gerald, supra, 113 N.J. 40, which required that a jury must be instructed separately on the crimes of intentional murder and serious-bodily-injury murder (SBI murder). At the time of Harvey's trial, a conviction for SBI murder did not render a defendant death-eligible. In his confession, Harvey claimed that the victim struck him and that he then struck her only once. Relying in part on statements in his confession, the Court concluded that the evidence provided a rational basis for a jury to have concluded that defendant intended only to injure Schnaps. Harvey I, supra, 121 N.J. at 413.

The Court further held that Harvey's confession had been procured in violation of State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986). Hartley provides that after invoking the right to silence, a defendant must receive new Miranda warnings before interrogation can resume. The Court ruled that by asking to speak with his father Harvey had invoked his right to silence. Harvey I, supra, 121 N.J. at 418-20. Consequently, the police should have advised him again of his constitutional rights before resuming interrogation. The failure of the police to abide by that bright-line test rendered defendant's confession inadmissible. Id. at 422.

F. The Interim Between Trials

Faced with the prospect of retrying Harvey without his confession, the prosecution hired Cellmark Diagnostics Laboratory (Cellmark) to conduct DNA tests on the blood recovered from the crime scene. Cellmark, the first commercial laboratory accredited by the American Society of Crime Laboratory Directors, conducts DNA tests exclusively. It analyzed a bloodstained section of Schnaps's box spring, a bloodstained piece of cardboard, and a sample of both Schnaps's and defendant's blood.

G. The Retrial

Defendant's retrial, from the pretrial motions to the return of the death sentence, lasted from November 25, 1992 to December 16, 1994. The trial court denied a motion for a new trial on January 30, 1995.

1. Pretrial Motions

Following a hearing, the trial court denied defendant's motion to suppress evidence seized from defendant's car, ruling that defendant had consented to the search. The defendant also moved to exclude the State's DNA evidence. After a three-day New Jersey Rule of Evidence 104 (Rule 104) hearing, the trial court denied defendant's motion and held that the State's DNA evidence was admissible.

2. Guilt Phase

After a lengthy jury-selection process, the guilt phase began on November 29, 1994.

a. State's Case

The State adduced evidence about the crime scene, including fifty-two photographs and various items of physical evidence. Investigating officers testified to the discovery of the bloody sneaker print, the empty Seiko-LaSalle watch box, the empty jewelry box, and the empty Olympus camera box, all of which were admitted into evidence.

Philip Beesley, a forensic scientist employed by the New Jersey State Police, testified that blood work done on control samples from both the defendant and Schnaps revealed that Schnaps's blood was type "one plus, one minus" for the genetic marker PGM, and type "1" for the enzyme CA II. Defendant was type "one plus, one plus" for PGM and type "2-1" for CA II. Beesley further revealed that bloodstains found on the box spring and on the piece of cardboard tested as "one plus, one plus" for PGM and type "2-1" for CA II. He concluded that those stains were consistent with Harvey's blood, therefore, not Schnaps's. Beesley also testified that CA II of phenotype 2-1 is found only in African Americans.

Dr. Marvin Shuster testified about the nature of the wounds suffered by Schnaps and the cause of her death. See supra part I.B. Theodore Mozer, a forensic scientist employed by the New Jersey State Police, testified that one of the hairs recovered from Schnaps's back did not belong to her. Mozer testified that this hair had "Negroid" characteristics that were consistent with a control hair taken from Harvey.

Mozer also examined two pairs of sneakers seized from Harvey's ex-wife's West Windsor apartment and the size 6 1/2 "Pony" sneakers that Harvey was wearing when he was arrested. Aided by six enlarged photographs of the bloody footprint left at the crime scene, Mozer explained that Harvey's "Pony" sneakers were consistent with the sneaker impression. Although Harvey's sneakers "could" have left the bloody mark, Mozer could not conclude definitively that they had done so.

In support of the admission of the DNA evidence, the State presented two witnesses from Cellmark, Julie Cooper, a senior molecular biologist, and Dr. Charlotte Word, a microbiologist and supervisor of forensic casework. They testified generally that DNA tests conducted on the blood samples recovered at the crime scene were genetically comparable to defendant's DNA. Defendant's genotypes for the genetic markers examined were common to only one-in-1,400 African Americans.

b. Defendant's Case

Defendant did not testify.

His case consisted of only two witnesses. A witness from Seiko testified that it had made thousands of watches like the one seized from the trunk of defendant's car. Dr. Robert Shaler, Director of Forensic Biology for the Office of the Chief Medical Examiner for the City of New York, testified that he believed that the DNA tests were "scientifically indefensible." In the course of his testimony, he pointed out the imbalances in the dots on the strips. He found imbalances at the GYPA, HBGG and GC loci. Dr. Shaler testified that at the GYPA locus an individual's genes could cause a difference in dot intensity. He further disputed the one-in-1,400 calculation and asserted that he believed that the genetic makeup of the blood recovered from the crime scene could be found in approximately one in fifty to one in 200 African Americans.

c. The Verdict

In its jury instructions, the court included a Gerald charge. Consistent with State v. Purnell, 126 N.J. 518, 530-34, 601 A.2d 175 (1992), the court also charged on the unindicted count of felony murder. After deliberating for three and one-half hours, the jury returned its verdict finding defendant guilty of purposeful-or-knowing murder, felony murder, first-degree robbery, and second-degree burglary.

3. Penalty Phase

a. State's Case

The State relied exclusively on the evidence adduced at the guilt phase to support proof of three aggravating factors: the murder involved aggravated assault of the victim, N.J.S.A. 2C:11-3c(4)(c); the murder was committed to escape detection, N.J.S.A. 2C:11-3c(4)(f); and the murder was committed during the course of a robbery and burglary, N.J.S.A. 2C:11-3c(4)(g).

b. Defendant's Case

Pursuant to N.J.S.A. 2C:11-3c(5)(c) and (h), defendant alleged ten mitigating factors: the age of the defendant at the time of the murder; the defendant was traumatized at a young age when he witnessed the death of his older sister; defendant was uprooted from his home and sent to live with his grandparents who abused him; defendant suffered feelings of abandonment when his parents moved north and failed to send for him; he was exposed to domestic violence in the home of his grandparents; he was exposed to domestic violence in the home of his parents; he is a caring and loving father; his continuing relationship with his children including financial contributions; his relationship with his mentally disabled brother and his mentally disabled daughter; and all factors which relate to the defendant's childhood and family background.

Professor Richard Moran, a criminologist specializing in the correlation between age and crime, testified that if defendant were sentenced to prison rather than death, he could not be eligible for parole prior to age 64, by which time he would be in the age group least likely to commit violent crime. Therefore, the chances of defendant committing another violent crime would be minute.

A forensic social worker testified about defendant's social history. Defendant was raised in poverty. His often-absent father was a sharecropper and a migrant worker. As a two-year old, defendant had been injured in an automobile accident, but did not receive medical treatment. When defendant was four, he and his five-year old sister were left in an unheated home. While trying to light a stove, defendant's sister spilled some kerosene on her nightgown. When defendant lit a match, she burned to death.

Defendant's parents later moved to New Jersey, leaving defendant in the care of his grandparents for seven years. During his childhood, defendant was abused by both his grandfather and father.

Various family members testified that defendant was a loving and caring father, who also comforted his developmentally-disabled brother. Defendant's family asked the jury not to sentence defendant to death.

c. The Verdict

After deliberating for two and one-half hours, the jury returned a unanimous verdict that defendant had committed the murder for the purpose of avoiding apprehension, N.J.S.A. 2C:11-3c(4)(f), and in the course of a robbery and burglary, N.J.S.A. 2C:11-3c(4)(g). It did not find aggravating factor N.J.S.A. 2C:11-3c(4)(c), that the murder involved aggravated assault to the victim. The jury further found that the aggravating factors outweighed all of the mitigating factors and that each aggravating factor alone outweighed all of the mitigating factors. The trial court sentenced defendant to death.

Later, the trial court sentenced defendant as a persistent offender on the non-capital counts of first-degree robbery and second-degree burglary. Accordingly, defendant received a sentence of life with a twenty-five year parole bar on the first degree robbery conviction to run consecutively to defendant's death sentence for capital murder. On the burglary conviction, defendant was sentenced to a concurrent term of five years in prison with a two-and-one-half year parole bar. Those sentences were made consecutive to prison terms previously imposed on defendant for unrelated crimes. Thus, defendant's aggregate sentence, irrespective of the death penalty, is life plus sixty-five years with a fifty-seven-and-one-half year parole disqualifier.

- II -

We first consider defendant's contention that the trial court committed reversible error when it failed to instruct the jury in accordance with this Court's later decision in State v. Mejia, 141 N.J. 475, 662 A.2d 308 (1995).

- A -

Evaluation of defendant's Mejia argument begins with Gerald, supra, 113 N.J. 40. In Gerald, this Court held as a matter of state constitutional law that only those murderers who intended to kill were eligible for the death penalty. Those who intended to inflict only serious bodily injury were not death-eligible under N.J.S.A. 2C:11-3(a)(1) or (2), even if their actions resulted in their victim's death. Id. at 69-70. Subsequent constitutional and statutory amendments have abrogated the Gerald rule by subjecting to the death penalty murderers who intended to cause only serious bodily injury. N.J. Const. art. I, P 12 (1992); L. 1993, c. 111 (signed May 5, 1993). At the time of Schnaps's murder, however, only those who murdered with the intent to kill were death-eligible. Thus, the Gerald rule applies to the present case.

Under Gerald, the jury's determination whether defendant killed with the intent to kill or merely with the intent to inflict serious bodily injury, became the linchpin of capital-punishment eligibility. If the evidence produced at trial provided even a rational basis for a jury to convict a defendant of SBI murder rather than intentional murder, the trial court was compelled to "instruct the jury to specify which, if [either], of those findings forms the basis for conviction." State v. Coyle, 119 N.J. 194, 209, 574 A.2d 951 (1990). Under Gerald, the jury's key role became to determine whether defendant's intent was to kill or to inflict SBI. State v. Moore, 122 N.J. 420, 484, 585 A.2d 864 (1991).

In Mejia, supra, 141 N.J. at 481, this Court clarified Gerald by stating that a jury need not be unanimous on whether the defendant intended to kill or to injure seriously. The intent-to-kill requirement is not an element of murder, but a "triggering device" for the death-penalty phase of the trial. Id. at 486. Thus, unanimity is not required in making the Gerald determination. Id. at 487 (noting "unanimity requirement extends only to verdicts adverse to the defendant"). A jury can return a valid guilty verdict for purposeful-or-knowing murder even if it cannot agree that defendant killed intentionally. Such a verdict, however, will not support the imposition of the death penalty. Id. at 486. In Mejia, the record provided "a rational basis for a jury to find that defendant intended only to cause serious bodily injury." Id. at 481. The trial court's failure to instruct the jury about the possibility of returning a non-unanimous verdict on the defendant's intent thus constituted plain error.

In State v. Harris, 141 N.J. 525, 549, 662 A.2d 333 (1995), however, we held that a failure to give a non-unanimous Mejia charge could be considered harmless when the evidence of intent to kill was overwhelming and no rational basis existed for concluding that defendant had intended to inflict only serious bodily injury.

Although defendant's case was tried seven months before the issuance of Mejia and Harris, defense counsel requested a charge on a non-unanimous verdict. Before us, defendant argues that the absence of a non-unanimous verdict charge coerced the jury into returning a verdict of capital murder. The initial inquiry, then, is whether the evidence provided a rational basis to find that defendant intended to inflict only serious bodily, and not to kill.

- B -

Failure to charge in accordance with Gerald/Mejia requires the reversal of a death sentence if the record below contains evidence that is "minimally adequate to provide a rational basis for the jury to hold a reasonable doubt that the defendant intended to cause death." Mejia, supra, 141 N.J. at 489; see also State v. Pennington, 119 N.J. 547, 561, 575 A.2d 816 (1990) (characterizing rational-basis standard as a "low threshold"); State v. Pitts, 116 N.J. 580, 615, 562 A.2d 1320 (1989) (same). Accordingly, a rational basis may exist even though a jury likely would reject the defendant's serious-bodily-injury theory. Mejia, supra, 141 N.J. at 489; see State v. Dixon, 125 N.J. 223, 254, 593 A.2d 266 (1991) ("The error was not harmless because there was evidence in this case that could have sustained an SBI . . . verdict. We do not suggest that such a verdict was likely, but merely that if the jury returned that verdict, the court could not reject it."). Satisfaction of the "minimally adequate/rational basis" standard, however, requires more than a mere "scintilla of the evidence." Mejia, supra, 141 N.J. at 489; State v. Crisantos, 102 N.J. 265, 278, 508 A.2d 167 (1986).

We have found harmless error in cases where defendants' actions have been "so wantonly brutal that the jury could have concluded only that the defendant intended to cause death." Mejia, supra, 141 N.J. at 488; see, e.g., Harris, supra, 141 N.J. at 550 (victim was handcuffed and lying on ground when defendant shot him in back of head); State v. Bey, 129 N.J. 557, 579, 610 A.2d 814 (1992) (Bey III) (defendant stomped on victim with sufficient force to crush her chest), cert. denied, U.S. , 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995); State v. Biegenwald, 126 N.J. 1, 18 (1991) (Biegenwald IV) (defendant fired four gunshots into victim's head); State v. McDougald, 120 N.J. 523, 558-60, 577 A.2d 419 (1990) (defendant slashed victims' throats, bludgeoned one with baseball bat, and expressed intent to kill both before and after killings); State v. Hightower, 120 N.J. 378, 412-14, 577 A.2d 99 (1990) (Hightower I) (defendant shot victim at close range in chest, neck, and head, and then dragged victim into freezer); State v. Rose, 120 N.J. 61, 63-64, 576 A.2d 235 (1990) (Rose II) (defendant fired twelve-gauge shotgun point-blank into victim's stomach); State v. DiFrisco, 118 N.J. 253, 571 A.2d 914 (1990) (DiFrisco I) (defendant shot victim four times in head and admitted intention to kill), cert. denied, U.S. , 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); Pitts, supra, 116 N.J. at 614-20 (defendant threatened to kill victims two days before murders, inflicted twenty-five to thirty stab wounds with combat knife, cut one victim's throat twice, and paused to take victim's pulse to verify death); State v. Hunt, 115 N.J. 330, 374-77, 558 A.2d 1259 (1989) (defendant stated intent to kill immediately prior to stabbing victim twenty-four times).

- C -

Schnaps was brutally murdered. Her killer struck her fifteen times in the head with a blunt instrument. He struck her with sufficient force and frequency to fracture her skull in several places, knock out her teeth, and break her jaw. He further applied sufficient pressure to her neck to cause severe bruising. Reviewing that medical evidence in Harvey I, supra, we wrote that "such repeated blows can support a jury finding of intentional murder." 121 N.J. at 413.

Relying substantially on the assertions in defendant's confession, however, we concluded that the evidence as a whole required reversal. We reached that Conclusion because "the record provided a rational basis for the jury to find that [defendant] intended to cause only serious bodily injury." Id. at 414 (internal quotations omitted). Contrary to the Dissent's assertions, all of the "pertinent facts" contained in Harvey's confession were not before the jury in the retrial. Post at (slip op. at 90). Not before the jury was defendant's confession that he had struck the victim only once in response to being punched in the nose. Harvey I, supra, 121 N.J. at 412. That confession provided a rational basis for a juror in the first trial to have concluded that Harvey intended only to injure his victim and not kill her. The absence of Harvey's confession is a critical distinction between the record in Harvey I and that in the present case.

- D -

In determining whether a rational basis existed for a Gerald charge, we are confined to the evidence in the record. See Bey III, (supra) , 129 N.J. at 581 ("We examine scrupulously the evidence that was adduced at trial to see whether the jury had a rational basis for finding that the defendant could have intended only serious bodily injury."); Dixon, supra, 125 N.J. at 253 (noting appellate role is to ask if jury answered question on death-eligibility). We may not consider the evidence in the first trial. In brief, defendant's confession, which was admitted in the first trial but excluded from the second, is not part of the record.

Absent the confession, the evidence does not provide a rational basis for the supposition that defendant struck his victim to ward off her attack. The Dissent attempts to distinguish Schnaps's murder from related cases where we have found harmless trial courts' failure to provide a non-unanimity instruction. According to the Dissent, repeated bludgeoning to the head by a hammer-like instrument, such as the one used by defendant, "is not like a gun fired at close range into a person; the victim's death is not so assured." Post at (slip op. at 93) (citing Hightower I, supra, 120 N.J. at 412-14 (finding that defendant shot victim with a .32-caliber handgun from close range in the chest, neck, and head)). Incomprehensibly, the Dissent also concludes that, unlike other cases, "there is no evidence that defendant took further steps to assure Ms. Schnaps's death." Post at (slip op. at 94) (citing Hightower I, supra, 120 N.J. at 413 (finding that defendant dragged victim into freezer); Pitts, supra, 116 N.J. at 618 (noting that defendant took victim's pulse)). We disagree. The inescapable inference created by the objective facts, especially the severity and number of Schnaps's wounds, is that defendant intended to kill her.

- E -

Nor is defendant's argument strengthened by the trial court's delivery of a Gerald charge. Given this Court's reversal of the conviction in the first trial, the inclusion of a Gerald charge in the second trial is understandable, if unnecessary. In reversing the conviction in the first trial, which included defendant's confession, we did not predetermine the need for such a charge in a retrial in which the confession was excluded. Likewise, the inclusion of charges on the lesser-included offenses of aggravated and reckless manslaughter do not compel the need for a Gerald/Mejia charge. Those charges reflect the trial court's caution when instructing the jury.

- F -

We are unpersuaded also by defendant's contention that he was entitled to a Mejia charge. Defendant bases that contention on the State's acknowledgment that when defendant entered the victim's apartment, he intended to commit only burglary, not murder. Similarly unpersuasive is defendant's attempt to derive support from the State's argument, made pursuant to N.J.S.A. 2C:11-3c(4)(c), that defendant, when committing aggravated assault on the victim, inflicted some blows not to kill, but to cause pain. Even if defendant did not intend to kill Schnaps when he first entered her apartment, the evidence reveals that he changed his mind once he began to assault her. Whether this occurred in a "brief moment," as the Dissent argues, or not is irrelevant. Post at (slip op. at 92).

Furthermore, a Gerald/Mejia charge is not required simply because the prosecution relies on N.J.S.A. 2C:11-3c(4)(c). Overwhelming evidence establishes that even if defendant struck the first few blows merely to cause pain, he struck the others to kill. The trial court did not err in failing to tell the jury that it could return a non-unanimous verdict on whether defendant intended to kill. Defendant's attack was "so wantonly brutal that the jury could have concluded only that the defendant intended to cause death." Mejia, supra, 141 N.J. at 488.

- III -

Defendant contends that the trial court's instruction on murder improperly precluded the jury from considering the non-capital offense of felony murder. Specifically, defendant alleges that the instruction and the verdict sheet prevented the jury from considering felony murder until after it first had found him guilty of purposeful-or-knowing murder. Defense counsel did not object to the charge or the verdict sheet. Hence, the issue arises as a matter of plain error under Rule 2:10-2. The issue is whether the error "is clearly capable of producing an unjust result." We recognize that the charge was flawed, but conclude that the error was not capable of producing such a result.

- A -

Defendant was indicted "for purposely or knowingly causing Schnappes [sic] death or serious bodily injury resulting in death." The indictment also included counts for second-degree robbery and second-degree burglary. In addition, the State relied on aggravating factor N.J.S.A. 2C:11-3c(4)(g) (the murder was committed during the course of a robbery and a burglary). Although defendant was neither indicted for, nor charged with felony murder, N.J.S.A. 2C:11-3a(3), the court, in accordance with Purnell, supra, 126 N.J. at 530-34, instructed the jury on felony murder. A conviction for felony murder, however, does not render a defendant eligible for the death penalty. N.J.S.A. 2C:11-3c; Dixon, supra, 125 N.J. at 255. In Purnell, this Court held that the death penalty could not be imposed for a murder that was committed in the course of a felony if the jury was not permitted to consider the non-capital verdict of felony murder. Although the trial court here gave a felony-murder charge, the verdict sheet makes clear that the jury could not have considered a verdict on felony murder without first finding defendant guilty of purposeful-or-knowing murder.

- B -

The court instructed the jurors that page one of the verdict sheet provided them with four choices when considering the murder charge. They could find defendant not guilty, guilty of murder, guilty of aggravated manslaughter, or guilty of reckless manslaughter. Page one did not present felony murder as an option.

The court instructed the jurors that if they found defendant not guilty of murder, they were to ignore pages two and three of the verdict sheet, and proceed directly to page four, where they were to consider the robbery count. Only if the jury found defendant guilty of murder were they to proceed to pages two and three. Page two directed the jury to determine whether defendant had committed the killing by his own conduct and purposely or knowingly. If the jury answered affirmatively, the verdict sheet directed them to page three. That page directed the jury to the Gerald issue, whether defendant had acted with the intent to kill or to inflict serious bodily injury. It also directed the jury to consider whether defendant was guilty of felony murder. Thus, unless the jurors first found defendant guilty of purposeful or knowing murder, they would not have reached the felony-murder alternative. In effect, the verdict sheet distracted the jury from convicting the defendant of felony murder, but not purposeful-or-knowing murder.

In a capital case, "the jury must be given every opportunity to convict of the charge not carrying the death penalty." Mejia, supra, 141 N.J. at 484 (quoting John M. Cannel, New Jersey Criminal Code. Annotated, Comment 13 to N.J.S.A. 2C:1-8(e)). Here, the combination of the jury charge and the verdict sheet led the jury away from rendering a non-capital verdict of felony murder. That was error.

On the facts of this case, however, the flaws in the charge and verdict sheet do not constitute plain error. Defendant has not advanced any plausible version in which the jury could have convicted him of felony murder without also convicting him of purposeful-or-knowing murder. Nor can we ascertain any such version from the record. In sum, the error was not clearly capable of producing an unjust result.

- IV -

Following a Rule 104 hearing, the trial court permitted the prosecution to admit into evidence the results of a DNA test kit known as the "PM" or "polymarker" test. The kit, which is manufactured by Roche Laboratories and marketed by the Perkin-Elmer Corporation, is sold under the trade name "AmpliType PM." This polymarker evidence was an important link in tying defendant to the crime. We accept the admission into evidence of results of polymarker testing, which is used primarily on small samples of genetic material, such as blood stains.

On this record, we conclude that the scientific community generally accepts polymarker testing, including dot-intensity analysis. Generally speaking, dot-intensity analysis is a means of identifying a single sample from two sources, such as a blood stain that contains the blood of two people. Such samples may be present at the scene of a violent crime.

The State's experts identified the genetic markers for the victim and the perpetrator. Through polymarker testing they determined that the box-spring sample, which contained the victim's blood, also contained blood with the same genetic markers as defendant's blood. The experts concluded that defendant's genotype for the genetic markers was shared by only one-in-1,400 African Americans. We hold that the trial court did not err in admitting the testimony of the State's experts about the results of the DNA tests. The weight of that evidence was for the jury.

DNA testing is an evolving science. The general acceptance or rejection of a test may change over time. Even a test that is accepted generally, moreover, may attract critics. One generally accepted DNA test involves restriction fragment length polymorphism (RFLP) analysis. Because the blood sample in this case was so small, the State's experts could not use RFLP analysis. Instead, they used tests based on a Polymerase Chain Reaction (PCR): the HLA DQ ALPHA (DQ Alpha) and polymarker (PM) tests.

We begin with a basic explanation of DNA. The explanation necessarily uses technical terms and describes scientific methods. Our purpose is to discuss the basic concepts to the extent necessary for comprehension of the trial court's decision to admit the DNA evidence.

In the course of our Discussion, we shall review objections raised by defendant and the Dissent to the admission of the DNA evidence. Generally, the defense repeats arguments rejected by the trial court. The Dissent, however, raises several objections not raised by the defense either at trial or on this appeal. Both the defense and the Dissent share the objective of precluding the admission of DNA evidence proving that defendant murdered Irene Schnaps. Our scrutiny of the record leads to the Conclusion that the trial court did not err in admitting the DNA evidence. The weight of the evidence was a matter for the jury.

- A -

1. Deoxyribonucleic Acid (DNA)

Deoxyribonucleic acid (DNA) is a molecule of genetic materials shaped like a double-helix or spiral ladder. In every person, each cell with a nucleus contains a copy of that person's DNA. Thus, DNA serves as a blueprint for the human body.

The sides of the DNA helix or ladder are composed of two chains comprised of sugars and phosphates. Rungs or steps connect the two sides of the ladder. The rungs consist of pairs of molecules called "bases" or "nucleotides," which consist of four types: adenine (A), cytosine (C), guanine (G), and thymine (T). Nucleotides from separate DNA strands bond in a specific order to form the rungs that connect the sides of the DNA ladder. C bonds only with G, and A bonds only with T. Thus, for example, if the nucleotides on one strand are CGAT, the corresponding nucleotides on the attached strand will be GCTA.

The order of the base pairs along the DNA molecule comprises an individual's genetic code. Human DNA contains approximately three to four billion base pairs, known as the "genome." These base pairs govern the production of bodily proteins.

A gene is a sequence of nucleotides on a DNA strand responsible for producing a particular protein. The sequence of the nucleotides can vary. The possible sequences or variations are called "alleles." Thus, an allele is simply a version of a gene.

A gene's position on a chromosome is its locus. In different individuals, genes may be "polymorphic," meaning that they may take different forms or contain different sequences of base pairs. The polymorphic genes, which vary from one person to another, provide the basis for DNA identification. Most DNA has no known function, but even non-functional DNA remains important in forensic analysis.

During mitosis, or cell division, each chromosome is copied. The paired nucleotides separate, dividing the chromosome's DNA molecule into two separate strands. Free-floating nucleotides attach to the exposed nucleotides of the separated strands in accordance with the G-C, A-T rule. Thus, each strand reconstitutes identical DNA molecules. When the cell divides, these two identical chromosomes enter newly-created "daughter" cells. Each new cell has the identical genetic composition as the original cell.

All cells contain the same chromosomal composition. No two individuals, except identical twins, have the same nucleotide sequences throughout their DNA. DNA testing conducted on cells from various parts of the same body, whether blood, skin, semen, saliva, or hair will yield the same results. As in this case, DNA analysis can help identify donors of genetic material, such as blood.

2. Restriction Fragment Length Polymorphism (RFLP)

At present, the most widely accepted DNA test is the RFLP analysis. See, e.g., Fishback v. People, 851 P.2d 884, 892 (Colo. 1993) (holding that "no serious dispute exists as to whether the techniques involved in RFLP analysis are generally accepted"); State v. Moore, 268 Mont. 20, 885 P.2d 457, 468 (Mont. 1994) (concluding that "the theory underlying DNA and RFLP technology is generally not open to serious attack and [] such evidence is widely admitted in various state and federal courts and jurisdictions"); State v. Streich, 163 Vt. 331, 658 A.2d 38, 48 (Vt. 1995) (noting that "we cannot find any recent decision under any standard of admissibility which refuses to admit the DNA match result based on" the RFLP technology). Recently, in State v. Marcus, the Appellate Division recognized that the scientific community generally accepts RFLP analysis. 294 N.J. Super. 267 (1996). As Judge Skillman stated, "DNA testing by the RFLP method is generally accepted and is sufficiently reliable to warrant its admission in criminal cases.' Id. at 285. RFLP was not the DNA analysis employed in this case. A brief description of RFLP, however, may be useful as background information.

RFLP focuses on non-functional regions of DNA known as variable-number tandem repeats (VNTRs). In these regions, which typically range from 500 to 10,000 pairs of nucleotides, a core sequence of approximately fifteen to thirty-five base pairs is repeated many times consecutively along the chromosome. The number of repeats varies among individuals. At a given locus or site on a chromosome, sequences with different numbers of repeated units are known as VNTR alleles. Because different VNTR alleles contain different numbers of repeats, these alleles can be identified by their lengths. National Research Council, The Evaluation of Forensic DNA Evidence 14-15 (1996) (NRC Report).

In RFLP analysis, the recovered DNA sample and the sample from the suspect are treated with a restriction enzyme, which seeks out a specific nucleotide pattern on the DNA helixes. It then fragments the molecules at those sites. Because of VNTRs, the locations of these sites, and the lengths of the resulting fragments, differ among individuals. Through a process called "gel electrophoresis" the DNA fragments are sorted by size and split into single strands. These strands bond to a nylon membrane, where a specially treated and radioactively-tagged single strand of DNA, called a "genetic probe," is applied. The genetic probe bonds with a targeted VNTR sequence.

The nylon membrane is then placed in contact with a piece of X-ray film. The radioactivity of the probes exposes the film, producing a pattern of bands, like the bar-code on a box in a supermarket, where the probes have attached to VNTRs. This barcode image is called an "autoradiograph" or "autorad."

Fragments from different donors contain different numbers of repeat units, with a corresponding variation in the lengths of the fragments. Typically, radioactive probes need days or even weeks to expose the film. Id. at 18. Generally speaking, RFLP testing is time-consuming and may require months for a complete analysis. Ibid.

Comparison of the location of the bands reveals whether the targeted VNTR in the subjects's DNA matches the DNA from the recovered genetic material. That analysis can lead with a high degree of certainty to a correlation between the DNA samples.

The next step involves analysis of population statistics, which reveals the likelihood of a random match between the samples. Using single-locus probes, the probability of finding a random match between unrelated individuals on all bands of a DNA fingerprint is less than one in ten million. Using one multi-locus probe, the probability is about one in thirty-three billion. Thomas M. Fleming, Annotation, "Admissibility of DNA Identification Evidence," 84 A.L.R.4th 313, 324 (1991).

One problem with RFLP testing is that it requires a large quantity of high-quality genetic material. For example, it requires at least a quarter-sized blood stain or a dime-sized semen stain. Unless those samples are recovered when relatively fresh, they will degrade into fragments too small for RFLP analysis. Id. at 320. Cellmark attempted RFLP testing in this case. The samples, however, were too degraded to permit RFLP analysis. Thus, Cellmark turned to a newer technology, which involved Polymerase Chain Reaction (PCR).

3. PCR

When, as here, the quantity or quality of genetic material recovered from a crime scene is insufficient to allow RFLP analysis, forensic scientists have used the PCR process to amplify the DNA to produce an amount suitable for testing. The PCR process can copy a segment of DNA millions of times. NRC Report, supra, at 22-23. With the resulting genetic product, scientists can conduct "allele-specific probe" analysis. Fleming, (supra) , 84 A.L.R.4th at 322-23.

The PCR process copies DNA fragments similar to the way DNA replicates itself during mitosis. Through heating the DNA sample in a thermal cycler, the process separates the helix into separate strands. Primers composed of short DNA segments are added to define the target sequence of DNA. Then, a basic solution containing the enzyme DNA polymerase and the four basic nucleotides are added to the primed DNA sample. The added nucleotides pair with the exposed nucleotides on the separated target-strands in accordance with the G-C, A-T pairing rule. From the original DNA segment, two identical segments result. The thermal cycler runs through its cycle approximately thirty-two times, amplifying the original sample by a factor of two billion. Currently PCR technology effectively amplifies only small regions of DNA. Accordingly, PCR cannot be used to amplify longer VNTRs for RFLP testing. NRC Report, supra, at 69-70.

PCR-based testing methods have several advantages over RFLP analysis. They are relatively simple processes and can yield results within a short period of time, often within twenty-four hours. Of particular importance to the present case, the PCR process also makes possible DNA tests on small amounts of genetic material.

A disadvantage of PCR-based tests, however, is that the identified genes have fewer alleles than VNTR's. Hence, scientists must examine more loci to produce the same amount of information about the likelihood that two individuals share a profile. Id. at 71. Also, some of the loci examined by PCR-based tests are functional genes. Unlike non-functional VNTR markers, functional genes are more susceptible to natural selection, a susceptibility that might undermine their usefulness in matching DNA samples. Ibid. Contamination also is of concern in PCR testing. The technology is so efficient that even small contaminants can be replicated along with the targeted DNA. Ibid. Cellmark used two types of PCR-based tests in defendant's case: the HLA DQ Alpha (DQ Alpha) and polymarker (PM) tests.

a. HLA DQ Alpha Test

The DQ Alpha test reveals an individual's form of alleles for the human-leukocyte-antigen DQ Alpha gene. The purpose of the DQ Alpha test is to identify the genotype or the two alleles that comprise the DQ Alpha gene present in the DNA sample. That result is then compared with the DQ Alpha genotype of the suspect. If the genotypes match, then the suspect cannot be excluded as a possible donor. Genetics population databases then produce the frequency with which the suspect's genotype appears in the population. Although eight alleles have been identified at the DQ Alpha locus, only six are commonly used in forensic work. Ibid. Each of those six alleles can be distinguished by specific enzyme probes. Ibid. The six alleles for DQ Alpha are denominated as 1.1, 1.2, 1.3, 2, 3, and 4. For the DQ Alpha gene, there are twenty-one possible pair combinations or genotypes.

To interpret the results, the test uses a test strip with six chemical dots. Each dot consists of a specific enzyme probe that selectively binds to one of the six DQ Alpha alleles. Because the probes, rather than the DNA, are fixed on the membrane, this is called a "reverse" blot. Ibid. This test strip is then immersed in a solution containing the PCR product. The alleles for DQ Alpha present in the PCR product then attach to their corresponding enzyme probe on the test strip. Where the alleles bond, the dots turn blue. Two of the six dots will turn blue to indicate which two alleles constitute an individual's genotype. If an individual is homozygous, meaning that the two DQ Alpha alleles are identical, only one dot will turn blue.

The DQ Alpha test performed on defendant's blood revealed that his genotype for DQ Alpha is 4,4 or homozygous. Approximately 17% of the entire population (about one-in-six people) and 11.9% of the African American population (about one-in-eight) share that genotype.

DQ Alpha tests performed on a blood stain from the box-spring fabric indicated the presence of the DQ Alpha alleles 2 and 4. Schnaps's genotype for DQ Alpha was 2,4.

If the blood stain on the box spring were from a single donor, defendant could have been excluded because he does not possess the 2 allele. Schnaps, whose genotype matched the alleles, however, could not be excluded. If, however, the blood on the box spring is from a mixed sample, i.e., from more than one donor, then defendant cannot be excluded. The reason is that the 4 allele, which defendant possessed, was present in the blood stain. Based on other evidence, the prosecution established that the box-spring stain was a mixed sample.

Courts in New Jersey and in other jurisdictions have admitted results of PCR technology and the DQ Alpha test as scientifically reliable. See State v. Dishon, 297 N.J. Super. 254, 277, 687 A.2d 1074 (App. Div.), certif. denied, 149 N.J. 144 (1997) (finding that no testimonial hearing was necessary to establish the general acceptance of DQ Alpha DNA testing); State v. Williams, 252 N.J. Super. 369, 381, 599 A.2d 960 (Law Div. 1991) (holding that "overwhelming and persuasive evidence" pointed to general acceptance of PCR process and DQ Alpha test); State v. Haddock, 257 Kan. 964, 897 P.2d 152 (Kan. 1995) (admitting results of DQ Alpha test as scientifically reliable); People v. Palumbo, 162 Misc. 2d 650, 618 N.Y.S.2d 197 (Sup. Ct. 1994) (same); State v. Gentry, 125 Wash. 2d 570, 888 P.2d 1105 (Wash.), cert. denied, U.S. , 116 S. Ct. 131, 133 L. Ed. 2d 79 (1995) (same).

Defendant does not contest the admissibility of the PCR/DQ Alpha test results. He objects, however, to the admissibility of the results of the polymarker test, the validity of which the Dissent concedes. Post at (slip op. at 5). Because of defendant's objection, we briefly discuss the polymarker test.

b. The Polymarker (PM) Test

The PM test works like the DQ Alpha test, but instead of testing for the composition of one gene, it tests for six genes. The six genes tested in the PM test are: LDLR (low density lipoprotein receptor), GYPA (glycophorin A), HBGG (hemoglobin gammaglobulin), D7S8, and GC (Group Component). Each of those genes consists of combinations of either two or three different alleles. A blue-dot test, similar to that used in the DQ Alpha test, determines the genotype for each gene. As explained by Ms. Cooper, one of the State's experts, the PCR test begins by amplifying the amount of DNA. Then, the DNA is passed over a polymere test strip. When the DNA finds its type on that locus, the dot changes color. Each combination of alleles is associated with a population frequency that is expressed as a percentage.

After ascertaining a sample's genotypes and population frequencies for each of the five individual genes, a mathematical formula known as the "product rule" reveals the likelihood that another individual in the relevant population would share the test subject's genotype for all five targeted genes. The product rule, which gives the profile frequency in a population as a product of coefficients and allele frequencies, rests on the assumption that a population can be treated as a single, randomly mating unit. NRC Report, supra, at 5. Under the product rule, the population frequencies for each of the six genotypes are multiplied by one another.

Defendant's genotype for LDLR is present in 56% of the African-American population, his GYPA in 50%, his HBGG in 27%, his D7S8 in 45%, his GC in 17%, and his DQ Alpha in 11.9%. Applying the product rule, the prosecution's expert testified that one-in-170 African Americans would share defendant's genotype for the LDLR, GYPA, HBGG, D7S8, and GC loci. The product rule equation would be: .56 x .5 x .27 x .45 x .17 = .0058, or, expressed as a ratio, about one-in-170 African Americans. By including defendant's DQ Alpha genotype frequency in the product-rule equation along with the polymarker loci, only one-in-1,400 African Americans would share defendant's composite genotype for all six genes. The product rule equation would be: .56 x .5 x .27 x .45 x .17 x .119 = .00069. Expressed as a ratio, the result is about one-in-1,400 African Americans.

4. The Dot-Intensity or Association-of-Alleles Technique

In addition to his general objection to the polymarker test, defendant contends that the polymarker test cannot accurately analyze a mixed-blood sample. At trial, the experts described this method of analysis of interpreting the polymarker test on a mixed-blood sample as involving "the association of alleles." Scientific articles describe it as "dot-intensity" analysis, a description that we adopt generally in this opinion.

At the pretrial hearing, Dr. Word, one of the State's experts, testified that the polymarker test is designed so that if a single blood source contributes a pair of heterozygous alleles (i.e. A, B or B, C but not A, A), the two alleles will turn blue in equal intensities. If, however, two or more blood donors contribute the same allele, that dot would be more intense or a darker blue than if an individual donor contributed only one such allele. The same result would follow if one blood donor contributed two of the same allele so as to result in a pair of homozygous alleles (i.e., A, A or B, B but not A, B). In sum, the determination whether a sample is from more than one source of blood depends on the intensity of the color of the dots.

Cellmark performed PM tests on three samples: (1) on a bloody towel, assumed to contain blood from the victim only; (2) on a sample of defendant's blood; and (3) from a portion of the box-spring cover that contained a mixture of blood. The polymarker test on the blood removed from the box spring revealed the presence of both possible alleles (A and B) for LDLR, GYPA, and D7S8, and all three possible alleles (A, B, and C) for HBGG and GC. An individual can possess, at most, two different alleles. Consequently, the presence of three different alleles at the HBGG and GC loci demonstrated that the DNA sample from the box spring was a mixture of blood from more than one individual.

Dr. Word testified that the PM test conducted on the mixed-blood sample from the box spring revealed two distinct sources. Two sets of alleles caused the color imbalances in the dots from the box-spring sample. On the test strip, some of the blue dots appeared darker, but others were lighter. None of the dots, however, was lighter than the control dot. Those dot-intensity imbalances resulted from the presence of some alleles in pairs and other singly.

Using dot-intensity analysis, Dr. Word explained that a theoretical subtraction of the victim's blood from the PM results of the box-spring sample revealed the genotype of the second subject. She explained that if all three alleles for GC were present (A, B, and C) and the A allele-dot was darker on the test strip, the sample contained two A alleles, one B allele, and one C allele. The genotypes of the contributing donors, then, had to be either AB and AC, or AA and BC. No other combinations consisted of two A alleles, and only one each of B and C.

Based on dot-intensity analysis of the blood stain from the box spring, the State's experts concluded that the blood could have been a mixture of defendant's blood with that of Schnaps. Cellmark made only two assumptions in its analysis: (1) that Schnaps was a donor to the blood on the box-spring sample; and (2) that the blood was a mixture of two people.

The PM test for GC on the box spring revealed the presence of the A, B, and C alleles. The A dot was darker than the other two. That difference indicated that the composition of the GC in the sample consisted of two A alleles, plus the B and C alleles. If the sample had two donors, the possible combinations were AA and BC, or AB and AC. Schnaps was AC type for GC. The remaining donor therefore had to be AB. Defendant's genotype was AB.

The D7S8 test on the box-spring sample revealed the A and B alleles, with the A dot being darker. The only possible combination, then, was AA and AB. Schnaps was AA type for D7S8. The remaining donor had to be AB. Defendant's genotype was AB.

The HBGG test revealed the A, B, and C alleles at equal intensities. Because no dot was darker, Dr. Word testified that the possible combinations could be only AA and BC, AB and CC, or AC and BB. Schnaps was BB type for HBGG. Cellmark concluded that the remaining donor, then, had to be AC. Defendant's genotype was AC.

The GYPA test revealed A and B alleles with the A dot being darker. Schnaps was AA type for GYPA. The other donor had to be AB. Defendant was AB.

The LDLR test revealed A and B alleles with the B dot being darker. Schnaps was AB type for LDLR. The other donor had to be BB. Defendant's genotype for LDLR was BB.

Based on those test results, the State's experts concluded that neither Harvey nor Schnaps could be excluded as donors to the box-spring blood sample. As with the RFLP test, (infra) part IV.A.2., the second step involves analysis of population statistics. Our Discussion of the statistics in the present case is at (infra) part VI.

- B -

1. Standard of Review

The first question concerns the standard of appellate review of a trial court's decision on the admissibility of DNA evidence. Generally, appellate courts review a trial court's determination of the admissibility of evidence for an abuse of discretion. State v. Conklin, 54 N.J. 540, 545, 258 A.2d 1 (1969). The question remains, however, whether the abuse-of-discretion standard should apply to decisions concerning the admission of novel scientific evidence. We begin by recognizing that the best time to make the record on admission of such evidence is in a Rule 104 hearing.

The party offering the evidence bears the burden of proof. Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 378, 522 A.2d 405 (1987). Trial lawyers must make myriad choices in deciding how best to present or refute novel scientific evidence. Those choices construct the universe of discourse within which the trial court decides whether the scientific community considers the evidence acceptable generally. The choices also influence the presentation of the evidence to the jury and the record on appeal.

Unlike many other evidentiary issues, whether the scientific community generally accepts a methodology or test can transcend a particular dispute. People v. Miller, 173 Ill. 2d 167, 670 N.E.2d 721, 739, 219 Ill. Dec. 43 (Ill. 1996) (McMorrow, J., Concurring), cert. denied, U.S. , 117 S. Ct. 1338, 137 L. Ed. 2d 497 (1997). In determining the general acceptance of novel scientific evidence in one case, the court generally will establish the acceptance of that evidence in other cases. Jones v. United States, 548 A.2d 35, 40 (D.C. 1988). Notwithstanding the trial court's better position to shape the record and make factual determinations, appellate courts retain an important residual role for questions concerning the admission of scientific evidence. Like trial courts, appellate courts can digest expert testimony as well as review scientific literature, judicial decisions, and other authorities. To the extent that general acceptance focuses on issues other than a witness's credibility or qualifications, deference to the trial court is less appropriate. Miller, supra, 670 N.E.2d at 738-40 (McMorrow, J., Concurring).

When reviewing a decision on the admission of scientific evidence, an appellate court should scrutinize the record and independently review the relevant authorities, including judicial opinions and scientific literature. In the rapidly changing world of modern science, continuing research may affect the scientific community's acceptance of a novel technology. By reviewing post-trial publications, an appellate court can account for the rapid pace of new technology. The continuing review also recognizes that general acceptance may change between the time of trial and the time of appellate review. State v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1189 n.33 (Ariz. 1993), cert. denied, 511 U.S. 1046, 114 S. Ct. 1578, 128 L. Ed. 2d 221 (1994); see also Hadden v. State, 690 So. 2d 573, 579 (Fla. 1997) (finding that an appellate court "should consider the issue of general acceptance at the time of appeal rather than at the time of trial"). But see Lindsey v. People, 892 P.2d 281, 290-91 n.25 (Colo. 1995) (reasoning that Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), "requires nothing more than general acceptance at the time the evidence is admitted"). Moreover, by examining such additional information, an appellate court can prevent any inJustice rendered by the admission or exclusion of the evidence at the trial level. Bible, supra, 858 P.2d at 1189 n.33 (stating that if "the result obtained is the product of invalid scientific theory, there is no good reason to accept it simply because we were fooled at the inception of the inquiry").

On this appeal, we do not decide whether a different standard of appellate review should apply to a trial court's decision to admit or exclude expert testimony in civil cases, where the focus is not on whether the scientific evidence is generally accepted, but rather whether it derives from a reliable methodology supported by some expert consensus. Landrigan v. Celotex Corp., 127 N.J. 404, 417, 605 A.2d 1079 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449, 593 A.2d 733 (1991). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the United States Supreme Court adopted essentially the same standard for federal courts in both civil and criminal cases. The question of the appropriate standard of appellate review for federal courts is currently before the United States Supreme Court. Joiner v. General Electric Co., 78 F.3d 524 (11th Cir. 1996), cert. granted, U.S. , 117 S. Ct. 1243, 137 L. Ed. 2d 325 (1997). We restrict our analysis to the standard of review of evidence that the trial court has found to be generally accepted.

2. Standard for Admission of Expert Testimony

New Jersey Rule of Evidence 702, which is virtually identical to former Evid. R. 56(2), governs the admission of expert testimony. The rule provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In effect, this rule imposes three basic requirements on the admission of expert testimony:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;

(2) the subject of the testimony must be at a state of the art such that an expert's testimony could be sufficiently reliable; and

(3) the witness must have sufficient expertise to explain the intended testimony.

[ State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984); N.J.R.E. 702, 1991 Supreme Court Committee Comment.]

Defendant does not contest that DNA testing is beyond the ken of the average juror. Likewise, the defense does not dispute the qualifications of Ms. Cooper or Dr. Word as experts in the field of DNA testing. The sole issue is whether the scientific community sufficiently accepted the DNA tests to justify admission of the testimony of the State's experts.

In criminal cases we continue to apply the general acceptance or Frye test for determining the scientific reliability of expert testimony. In Frye, supra, 293 F. at 1013-14, the court wrote:

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.

(emphasis added).

In 1993, the United States Supreme Court abandoned Frye's general acceptance standard as the exclusive test for admitting scientific testimony in favor of the more relaxed standards of Federal Rule of Evidence 702. Daubert, (supra) , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. Even before the United States Supreme Court decided Daubert, this Court had relaxed the test for admissibility of scientific evidence in toxic-tort cases. Landrigan, supra, 127 N.J. at 404; Rubanick, supra, 125 N.J. at 421. We have been cautious in expanding the more relaxed standard to other contexts. State v. Fertig, 143 N.J. 115, 126, 668 A.2d 1076 (1996); State v. Spann, 130 N.J. 484, 509-10, 617 A.2d 247 (1993); State v. J.O., 130 N.J. 554, 572-73, 617 A.2d 1196 (1993). Thus, the test in criminal cases remains whether the scientific community generally accepts the evidence. Spann, supra, 130 N.J. at 509; Windmere, supra, 105 N.J. at 386.

A proponent of a newly-devised scientific technology can prove its general acceptance in three ways:

(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;

(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and

(3) by judicial opinions that indicate the expert's premises have gained general acceptance.

[ Kelly, supra, 97 N.J. at 210 (citing State v. Cavallo, 88 N.J. 508, 521, 443 A.2d 1020 (1982)).]

The burden to "clearly establish" each of these methods is on the proponent. Williams, supra, 252 N.J. Super. at 376.

Courts have applied this test in various contexts to evaluate the reliability of scientific evidence. See, e.g., Kelly, supra, 97 N.J. at 209 (admitting expert testimony relating to battered woman's syndrome); State v. Zola, 112 N.J. 384, 412-13, 548 A.2d 1022 (1988) (admitting expert testimony that modified chemical test detected presence of saliva on victim), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); Windmere, supra, 105 N.J. at 373 (concluding that voice-print evidence does not derive from reasonably reliable scientific method); Romano, supra, 96 N.J. at 82 (holding breathalyzer scientifically reliable); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (admitting hypnotically refreshed testimony when subjected to strict safeguards ensuring reliability of hypnotic procedure); State v. King, 215 N.J. Super. 504, 518-20, 522 A.2d 455 (App. Div. 1987) (finding isoenzyme test, which detects the presence in blood of six distinct enzyme systems, held scientifically reliable); Williams, supra, 252 N.J. Super. at 378-83 (holding PCR/DQ Alpha test and Gm/Km blood tests sufficiently reliable to be admitted at trial).

3. General Acceptance

Proof of general acceptance within a scientific community can be elusive. Windmere, supra, 105 N.J. at 379. Satisfying the test involves more than simply counting how many scientists accept the reliability of the proffered technology. Williams, supra, 252 N.J. Super. at 375. Proving general acceptance "entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience." Rubanick, supra, 125 N.J. at 436. Essentially, a novel scientific technique achieves general acceptance only when it passes from the experimental to the demonstrable stage. Windmere, supra, 105 N.J. at 378 n.2.

General acceptance, however, does not require complete agreement over the accuracy of the test or the exclusion of the possibility of error. See Richard J. Biunno, Current N.J. Rules of Evidence, Comment 4 to N.J.R.E. 702 at 690; State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964). Neither is it necessary to demonstrate that the techniques, methodology, and procedures are infallible. Nor is it necessary that acceptance within the scientific community be unanimous. State v. Tate, 102 N.J. 64, 83, 505 A.2d 941 (1986). Every scientific theory has its detractors. Windmere, supra, 105 N.J. at 379. Here, the State's burden is to prove that the polymarker test and the interpretation of its results are non-experimental, demonstrable techniques that the relevant scientific community widely, but perhaps not unanimously, accepts as reliable.

4. Polymarker Test

A proponent of scientific evidence can prove general acceptance through expert testimony, publications, or judicial opinions.

a. Expert Testimony

At the pretrial hearing, Dr. Word testified that the scientific community generally accepts the polymarker test as scientifically reliable. The Dissent agrees. Post at (slip op. at 5). Dr. Word explained that the polymarker test is technologically and procedurally similar to the well-established PCR/DQ Alpha test. Cellmark, moreover, conducted validation studies on the PM test. The studies, which were conducted in accordance with protocols established by the Technical Working Group on DNA Analysis Methods (TWGDAM), revealed that the PM test reliably produced accurate results. Approximately thirty to forty laboratories in the United States use the PM test either for casework or validation studies. Six of the better-known laboratories independently had tested the polymarker and likewise concluded that it was reliable. Those laboratories included: the Federal Bureau of Investigations (FBI), the Department of Justice, the Georgia Bureau of Investigations, the California Laboratory in Berkeley, Center for Blood Research in Boston, the Regional Crime Laboratory at Indian River Community College, and Roche Biomedical Laboratories. Of all the laboratories using the PM kit, none had ever reported receiving an incorrect result from a properly performed test.

Defendant challenged the general acceptance of the polymarker test, asserting that some laboratories still subject it to validation studies. Defendant's expert at the Rule 104 hearing, Dr. Robert Shaler, testified that polymarker testing was not yet appropriate for use in casework and that Cellmark's validation procedures were flawed.

The trial court concluded:

Based upon the expert testimony of Dr. Charlotte Word, and the scientific literature admitted into evidence, PCR/PM has been sufficiently validated to be used in casework; has been accepted by the relevant scientific community; and produces uniform and reasonably reliable results.

Our review of the record leads us to conclude that the scientific community has generally accepted the polymarker test. Dr. Word established that independent tests have validated the polymarker's reliability and that highly-regarded laboratories have employed the test in casework. Only defendant doubts the reliability of the PM test.

b. Publications

Scholarly and scientific publications, moreover, approve the polymarker test. In support of the polymarker test, the State submitted one published article, George Herrin, Nicola Fildes, & Rebecca Reynolds, "Evaluation of the AmpliType PM DNA Test System on Forensic Case Samples," 39 J. Forensic Sci. 1247 (1994) (Herrin article), and two articles that since have been published: Nicola Fildes & Rebecca Reynolds, "Consistency and Reproducibility of AmpliType PM Results Between Seven Laboratories: Field Trial Results," 40 J. Forensic Sci. 279 (1995) (Roche field study); Bruce Budowle, et al., "Validation and Population Studies of the Loci LDLR, GYPA, HBGG, and D7S8, and Gc (PM Loci), and HLA-DQx Using A Multiplex Amplification And Typing Procedure," 40 J. Forensic Sci. 45 (1995) (FBI Report). All three of those documents concluded that the PM test was reliable for casework. Further, the State submitted a list of forty-four presentations, posters, lectures, seminars, and workshops in which forensic scientists discussed issues regarding polymarker-related research, testing, and results. Dr. Word had attended fifteen to twenty such lectures and had lectured on the reliability of the polymarker test at many of the meetings.

Defendant argues that the scholarly works were too few to support a Conclusion of general acceptance. Further, defendant maintains that lectures do not provide effective forums for peer review. In addition, defendant alleges that Cellmark violated the national standards for DNA testing by failing to publish both the results of its validation studies and the types of primers and probes that it uses.

The articles and lectures, however, support general acceptance of the polymarker test. Admittedly, prior cases have involved greater bodies of accumulated scholarship. See, e.g., Kelly, supra, 97 N.J. at 211 (noting that there were "at least five books and almost seventy scientific articles and papers about the battered-woman's syndrome"); Williams, supra, 252 N.J. Super. at 382 (noting that six testifying experts had authored, cumulatively, close to 600 articles, many on PCR technology). We recognize, additionally, the correlation between the number of published articles and the general acceptance of a subject. Yet, we never have required a specific number of articles to satisfy the test of general acceptance. Rather, our focus always has been whether existing literature reveals a consensus of acceptance regarding a technology. In Windmere, supra, 105 N.J. at 383-84, for example, although ample literature existed on the subject of voiceprint analysis, the existing "journals [were] in disarray." By contrast, all of the written works on the polymarker test agree that the test is reliable. Defendant produced no documents, published or pre-publication, suggesting anything to the contrary.

Further, "under appropriate circumstances, speeches, addresses, and other similar sources may be used to demonstrate the acceptance of a premise by the scientific community." Kelly, supra, 97 N.J. at 211 n.17; see also State v. Anderson, 118 N.M. 284, 881 P.2d 29, 42-43 (N.M. 1994) (rejecting claim that presentations, as opposed to formal publications, were inadequate as peer review). From the forty-four lectures and presentations, it appears clear that the forensic-science community has kept abreast of developments and has had adequate opportunity for peer review of PM testing.

Since the Conclusion of defendant's trial, moreover, the National Research Council, the members of which are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine, published The Evaluation of Forensic DNA Evidence (referred to (supra) as NRC Report), an update to their 1992 report, DNA Technology in Forensic Science. The report concludes that PCR-systems, including the polymarker, are "ready to be used." NRC Report, supra, at 119. The report further confirms that the polymarker has been "validated with tests for robustness with respect to environmental insults," and that "substantial information on population frequencies" exists for the polymarker loci. Id. at 72. We conclude that existing literature, combined with research shared at lectures and symposia, supports a finding that the polymarker test is generally accepted as reliable by the forensic science community.

c. Judicial Opinions

At the time of the Rule 104 hearing, both the State and the defense were unaware of any judicial opinion discussing polymarker evidence. See Wilkerson v. Pearson, 210 N.J. Super. 333, 336, 509 A.2d 818 (Ch. Div. 1985) (holding that absence of judicial opinions demonstrating acceptance by other courts of particular type of scientific technique should not, by itself, foreclose finding of general scientific acceptance and reliability). Before the Rule 104 hearing, however, a New York court had admitted polymarker evidence. People v. Morales, N.Y.L.J., Oct. 26, 1994, at 34 (N.Y. Cty. Ct. 1994), aff'd, 643 N.Y.S.2d 217 (App. Div. 1996). In Morales, experts from the Center for Blood Research Laboratories, Yale University School of Medicine's Department of Genetics, and the Office of the Chief Medical Examiner for New York testified in support of admission of the evidence. Curiously, the witness from the New York Medical Examiner supporting the admission of the polymarker evidence was Dr. Shaler, the same expert who testified against admission of polymarker evidence in the present case. The New York court concluded that "the People have met their burden in establishing that the PCR tests at issue here are sufficiently established to gain general acceptance in the scientific community and satisfy the standard of reliability." Ibid.

Since defendant's trial in the present case, at least six other courts have held that polymarker testing is scientifically reliable. United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir. 1996), cert. denied, U.S. , 117 S. Ct. 1856, L. Ed. 2d (1997) (holding that DQ Alpha and polymarker testing are sufficiently reliable under Daubert and have achieved general acceptance within relevant scientific community); United States v. Shea, 957 F. Supp. 331, 338 (D.N.H. 1997) (finding PCR testing, including polymarker testing, reliable under F.R.E. 702); United States v. Lowe, 954 F. Supp. 401, 418 (D. Mass. 1996) (finding that polymarker and another PCR-based test, D1S80, are sufficiently reliable under Daubert); Brodine v. State, 936 P.2d 545, 550-51 (Alaska Ct. App. 1997) (finding polymarker testing generally accepted in scientific community); People v. Pope, 284 Ill. App. 3d 695, 672 N.E.2d 1321, 1326, 220 Ill. Dec. 309 (Ill. Ct. App. 1996) (finding that DQ Alpha and polymarker typing are generally accepted in scientific community under Frye); Keen v. Commonwealth, 24 Va. App. 795, 485 S.E.2d 659, 664 (Va. Ct. App. 1997) (rejecting defendant's challenges to the polymarker test). In Pope, supra, the Illinois Court of Appeals found polymarker testing generally accepted in the scientific community even when the Frye hearing in that case involved the testimony of only one witness, the State's expert. Pope, supra, 672 N.E.2d at 1326. Admission of the polymarker test in other jurisdictions supports our Conclusion that the trial court correctly admitted the evidence in the present case.

We thus conclude that the trial court did not err in admitting expert testimony on the results of the polymarker test. We are satisfied that the polymarker technology is scientifically reliable and that Cellmark conducted the tests in accordance with established procedures.

5. Dot-Intensity Analysis

Defendant asserts that even if the results of the polymarker test are admissible, dot-intensity analysis, the State's method of interpreting the mixed-blood sample, is scientifically unreliable. The Dissent likewise rejects dot-intensity analysis. Indeed, the Dissent goes so far as to assert that if dot-intensity analysis is reliable, "the results obtained would be inconsistent with defendant being the murderer." Post at (slip op. at 39).

At the Rule 104 hearing, dot-intensity analysis was presented as an integral part of polymarker testing. The Rule 104 hearing involved consideration of oral testimony and written evidence on the polymarker test and dot-intensity analysis. Both the defense and the State considered dot-intensity analysis as an application of the polymarker test, not as an issue apart from polymarker testing. In holding that the results of polymarker testing were admissible, the trial court implicitly approved dot-intensity analysis, which was the only use of the polymarker test on which the State relied.

Based on the record, as well as on posttrial publications and judicial opinions, we conclude that the trial court correctly allowed the State's experts to testify about dot-intensity analysis. In so concluding, we recognize that a court must examine each step of a scientific process or technique. Kelly, supra, 97 N.J. at 210. Thus, we independently examine dot-intensity analysis to determine whether it has obtained sufficient acceptance to justify admission of its results into evidence.

a. Expert Testimony

At the pretrial hearing, the defense offered the testimony of Dr. Shaler and a written report by Dr. Blake, of Forensic Science Associates, both of whom disagreed with Dr. Word on the propriety of dot-intensity analysis. Dr. Shaler disputed Cellmark's theory that the dot-intensity imbalances on the polymarker test strip represented the presence of allele pairs. He testified that such color imbalances occurred even on the DNA test Strips of the single-donor control samples of defendant's and Schnaps's blood. For example, Dr. Shaler claimed to have detected intensity imbalances on defendant's GYPA and HBGG loci and on the victim's GC locus. According to the defense, those variances in the dot intensities in Harvey's and Schnaps's control strips destroyed the integrity of the dot-intensity analysis of the mixed-blood sample taken from the box spring. The Dissent agrees, asserting that "to the degree that there are naturally occurring variances in dot intensities that cannot be predicted prior to the analysis, dot-intensity analysis disintegrates as a reliable and useful test." Post at (slip op. at 45). According to Dr. Shaler, the PM test of the box spring supported a calculation only of "all the second donor types which would be possible" to fill out the necessary alleles.

Defendant also asserts that color imbalances in the polymarker test strips may have been caused not by allele pairs, but by human errors such as contamination or manufacturing defects. Dr. Shaler, at the pretrial hearing and at trial, faulted Cellmark for not repeating the polymarker test procedure despite the possibility of error or contamination. He further stated that contamination, a manufacturing defect, or improper laboratory procedures caused the dot imbalances.

Our previous holding that the polymarker test is scientifically reliable, (supra) part IV.B.4.d., leads us to the Conclusion that the foregoing challenges to dot-intensity analysis regarding Cellmark's performance of the polymarker test, concern not the admissibility, but the weight of the evidence. See Marcus, supra, 294 N.J. Super. at 291 (holding that interpretation of extra bands on autorads developed from bloodstains, "like an expert's ability to perceive an abnormality on an x-ray, is a matter within the province of the jury"); Fishback, supra, 851 P.2d at 893 (reasoning that defendant's challenge to techniques of RFLP analysis, including interpretation of autorads, concerns weight and not admissibility of DNA typing evidence under Frye); State v. Schweitzer, 533 N.W.2d 156, 160 (S.D. 1995) (reasoning that DNA-expert's Conclusions regarding results of DNA test were issue of weight for jury to consider); State v. Kalakosky, 121 Wash. 2d 525, 852 P.2d 1064, 1072 (Wash. 1993) (holding that defendant's assertions that specific laboratory procedures utilized to analyze DNA sample were flawed, goes to weight of evidence, not admissibility). As such, the ultimate determination of these issues was properly left to the jury.

The State's experts, Dr. Word and Ms. Cooper, differed from the defense expert, Dr. Shaler, in the interpretation of the dot intensities on the control strips. Defense counsel vigorously questioned the State's experts whether the differences in the dots of the victim's and defendant's blood samples undermined the dot-intensity analysis of the sample from the box spring. On cross-examination, Ms. Cooper disputed Dr. Shaler's claim that dot-intensity imbalances existed at the HBGG and GC loci on the defendant's and Schnaps's test strips. Ms. Cooper stated that "the only place where I really see any type of a slight difference would be at the GYPA locus for Mr. Harvey." Moreover, neither Ms. Cooper nor Dr. Word found any evidence that Cellmark had made a mistake in the conduct of the polymarker test. According to Ms. Cooper, the intensity imbalance on defendant's GYPA locus was probably due to a variant allele present in some African Americans. Ms. Cooper explained that the difference ...


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