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Dreher v. Pinchak

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


July 19, 2001

JOHN W. DREHER, PETITIONER,
v.
STEVEN PINCHAK, ADMINISTRATOR EAST JERSEY STATE PRISON AND THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, RESPONDENTS.

The opinion of the court was delivered by: Debevoise, Senior District Judge

FOR PUBLICATION

OPINION

Petitioner John W. Dreher, having been convicted in the New Jersey state courts of the murder of his wife, is currently serving a sentence of life imprisonment with a minimum term of thirty years before eligibility for parole. He brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging violations of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, the petition will be denied. A certificate of appealability will issue.

FACTUAL BACKGROUND

Much of the factual background of this case has been developed in two opinions issued by the Appellate Division of the New Jersey Superior Court ("Appellate Division"). See New Jersey v. Dreher, 251 N.J.Super. 300 (App.Div. 1991) (Dreher I); certif. den'd, 127 N.J. 564 (1992); New Jersey v. Dreher, 302 N.J.Super. 408 (App.Div. 1997) (Dreher II); certif. den'd, 152 N.J. 10 (1997); cert. den'd sub nom Dreher v. New Jersey, 524 U.S. 943; 118 S.Ct. 2353 (1998). It is the second of these opinions, Dreher II, that must serve "as the starting point in habeas review," See Matteo v. Superintendent, 171 F.3d 877, 885 (3d Cir. 1999) (en banc).

To summarize as briefly as possible, petitioner was tried and convicted twice in the New Jersey Superior Court for the murder of his wife, Gail Dreher. Petitioner's first conviction was overturned on direct appeal, and so it is the rulings and events surrounding his second trial which form the basis of this petition.

On January 2, 1986, Gail Dreher was found dead in the basement of the couple's home in Chatham Township, New Jersey. That afternoon, petitioner called the Chatham Township Police Department to report a burglary and the murder. The autopsy revealed that the cause of Gail Dreher's death was ligature strangulation but that she had also sustained several head injuries and stab wounds to the back and neck.

Subsequent examinations of swabs taken from her nose unearthed a single sperm cell, a finding confirmed by several forensic chemists at the New Jersey State Police Laboratory. There was, however, controversy about the time of the victim's death. After measuring the concentration of vitreous potassium found in the victim's eye and taking into account a host of other traditional factors, the medical examiner estimated that Gail Dreher had died between 7:00 and 8:00 a.m., with a margin of error of several hours. Petitioner maintains that the medical examiner employed an unconventional and impermissible method of interpreting vitreous potassium levels. Using the more traditional method of interpreting these levels, the estimated time of Gail Dreher's death would have been approximately 11:00 a.m., again with some margin of error.

Petitioner and his mistress, Nance Seifrit, eventually became the primary suspects in the homicide investigation. Petitioner met Seifrit at a bar in El Paso, Texas in early 1985. The two began an affair, and in the fall of 1985, she moved to Chatham, where petitioner lived with his family. Police identified Seifrit during surveillance of the Dreher home, and she was arrested in August of 1986. After receiving a grant of immunity from the Morris County Prosecutor's Office (sometimes referred to herein as the "MCPO"), she became a key witness in the prosecution's case against petitioner. Seifrit's own credibility has been questioned extensively, particularly in light of her well documented history of fraud and other crimen falsi. In her testimony, Seifrit stated that she and petitioner had agreed to confront Gail Dreher with the news of their affair on the morning of January 2, 1986.

She testified that she was at the Dreher house on the day of the murder, that she had participated in a staged burglary, and that she had witnessed the murder. She denied planning the murder or actively participating in its commission. Seifrit did admit, however, that she dropped a cobbler's last on the victim's head and used petitioner's discarded knife to stab the victim's body several times after petitioner left the house.

Seifrit further testified, and telephone records confirm, that she called petitioner at his workplace at 8:49 A.M. and spoke with him for ten minutes. Seifrit contends that during this conversation, petitioner told her that he would "take care of" some loose ends Seifrit had left behind at the house. Id. at 424. Telephone records further indicate that petitioner and Seifrit spoke two more times throughout the course of the day.

At trial, petitioner's attorneys contended that he could not have been home at the time of the murder. Petitioner claims that he was at work all day except for a quick trip to make a bank deposit, which was recorded at 10:07 a.m. Although a neighbor testified that he had seen petitioner's car leave the neighborhood between 9:15 and 9:35 a.m., validating the prosecution's version of the timeline, there had been an attempt to refresh the neighbor's recollection hypnotically. Petitioner maintains that it would have been impossible for him to travel from his Newark business to his Chatham home and back again within the time allotted.

Petitioner also claims that there is additional evidence to show that he could not have been the murderer. Lois Wolkowitz, a friend of the victim, placed several calls to the Dreher residence during the day of January 2, 1986. Her calls were twice answered by an unidentified male while petitioner was most certainly at his Newark office.

Detectives in part relied on Wolkowitz's statement to get a warrant to review the Dreher household telephone records. During petitioner's trials, detectives were not permitted to testify about Wolkowitz's statements. Wolkowitz herself did not testify.

Further, petitioner makes much of the sperm cell found in the victim's nose. Surmising that this fact indicates that the victim was sexually assaulted, petitioner has sought to exonerate himself by producing evidence that he had had a vasectomy and could not have produced the sperm cell in question. Although there is substantial controversy as to whether the presence of a single sperm cell can be an indication of sexual assault and to whom that cell may be traced, it does not seem that DNA testing has been employed. Petitioner's theory of the case is that Seifrit and a male accomplice, possibly her brother Nathan Seifrit, murdered Gail Dreher so that Seifrit could then marry petitioner. Seifrit had a history of financial trouble, and petitioner, who was a successful businessman, suggests that Seifrit hoped to gain access to his money.

PROCEDURAL HISTORY

Petitioner was indicted in May, 1987, and charged with purposeful and knowing murder, see N.J.S.A. 2C:11-3a(1), (2); unlawful possession of a knife, see N.J.S.A. 2C:39-5d; possession of a knife with an unlawful purpose, see N.J.S.A. 2C:39-4d; and conspiracy to commit murder, see N.J.S.A. 2C:11-3a, 2C:5-2. He was tried before a jury in the Superior Court for Morris County, found guilty, and sentenced to life imprisonment with a 30-year period of parole ineligibility.

Petitioner's conviction was reversed on appeal and remanded for a new trial because of errors in admitting hearsay statements and improper references to hearsay made during the prosecutor's closing argument. See New Jersey v. Dreher, 251 N.J. Super. 300 (App. Div. 1991), certif. den'd, 127 N.J. 564 (1992) (Dreher I).

On an interlocutory appeal before the new trial the Appellate Division ordered the trial court to hold an evidentiary hearing on the issue whether the State had destroyed and/or fabricated evidence concerning the statement of a key witness, Austin Lett. The hearing was held on twelve separate days in November and December 1993.

Petitioner was indicted a second time on November 4, 1993. In the superseding six-count indictment, petitioner was charged with purposeful murder, see N.J.S.A. 2C:11-3a(1); knowing murder, see N.J.S.A. 2C:11- 3a(2); purposeful infliction of serious bodily injury resulting in death, see N.J.S.A. 2C:11-3a(1); knowing infliction of serious bodily injury resulting in death, see N.J.S.A. 2C:11-3a(2); conspiracy to commit murder, see N.J.S.A. 2C:11-3a, 2C:5-2; and possession of a knife with an unlawful purpose, see N.J.S.A. 2C:39-4d. Following a second jury trial, petitioner was found guilty of all charges on May 10, 1995.

Post-trial motions for a new trial, a judgment of acquittal, and for permission to interview the jurors were all denied. The sentencing judge merged petitioner's convictions into the first count for purposeful murder and sentenced petitioner to life in prison with a thirty-year period of parole ineligibility.

Petitioner's second conviction was affirmed upon appeal to the Appellate Division on June 20, 1997. See New Jersey v. Dreher, 302 N.J. Super. 408 (App. Div. 1997) (Dreher II). A petition for certification was denied by the New Jersey Supreme Court later that year. See 152 N.J. 10 (1997). A petition for a writ of certiorari to the United State Supreme Court was also denied. See Dreher v. New Jersey, 524 U.S. 943, 118 S.Ct. 2353 (1998).

Petitioner filed his petition for a writ of habeas corpus with this Court on October 26, 1998. In his petition, petitioner raises the following twelve grounds for relief, all of which allege errors of constitutional dimension made by the trial court during his second criminal trial:

1) erroneous restrictions placed on the cross-examination of Nance Seifrit;

2) the admission of the testimony of Dr. Ernest Tucker;

3) an erroneous jury instruction on reasonable doubt;

4) improper utilization of petitioner's pre-arrest silence as evidence of guilt;

5) deliberate destruction of rough interview notes directed by the Morris County Prosecutor's Office;

6) the admission of pre-hypnotically-refreshed testimony given by Austin Lett;

7) the admission of Lett's testimony coupled with the loss, destruction or falsification of police reports containing Lett's pre-hypnotic recollections;

8) the exclusion of contemporaneous laboratory notes regarding the observation of a sperm cell;

9) the admission of improper hearsay regarding the absence of `street information' concerning the crime;

10) failure to conduct an adequate inquiry into evidence of extraneous influence on the jury;

11) refusal to instruct the jury on the unavailability of Nathan Seifrit, and;

12) erroneous limitations placed on the cross-examination of a state investigator.

Petitioner contends that these errors violated his federal constitutional rights as contained in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

STANDARD OF REVIEW

As a general rule, federal courts may entertain a habeas corpus application only where the petitioner has exhausted the remedies available to him or her in the state courts. McCandless v. Vaughan, 172 F.3d 255, 260 (3d Cir. 1999). Where a prisoner has exhausted his remedies in the state courts, federal courts have the power to review habeas corpus applications by persons in state custody who claim that they are "in custody in violation of the Constitution or laws or treaties of the United States." Id., quoting 28 U.S.C. § 2254(a). The scope of that review, however, has recently been limited by the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214, which amended the language of 28 U.S.C. § 2254(d). The amendments significantly limit the federal courts' power to review both the factual findings and conclusions of law made by the state courts.

Previously, "federal habeas courts were not required to `pay any special heed to the underlying state court decision.'" Matteo v. Superintendent, 171 F.3d 877, 885 (3d Cir. 1999) (en banc), quoting O'Brien v. DuBois, 145 F.3d 16, 20 (1st Cir. 1998). Section 2254(d), as amended, "firmly establishes the state court decision as the starting point in habeas review." Matteo at 885. As to a state court's factual findings, the habeas corpus statute does not permit federal courts to engage in a de novo review. A state court conviction must stand unless it resulted from "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(2).

As for conclusions of law, the scope of the review has been limited to determining whether a prisoner's conviction was: 1) contrary to clearly established law as determined by the Supreme Court of the United States, or; 2) based on an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 412 (2000), quoting 28 U.S.C. 2254(d)(1) (O'Connor, J., concurring). *fn1 The proper application of this standard of review was recently addressed by the Supreme Court in Williams.

Section 2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas relief. Williams, 529 U.S. at 404-5. Within the first category, a federal court may grant a writ of habeas corpus if the relevant state court decision was contrary to clearly established federal law as determined by the Supreme Court. Id. A state court decision can be contrary to Supreme Court precedent in two ways: first, if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; second, if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a different result. Id.

Cases in which the state court applies the correct legal rule do not fall within the "contrary to" framework, even assuming the federal court might reach a different result, so long as the state court's application of the law to the facts is not "diametrically different" from clearly established Supreme Court precedent. Id. at 406; see also Id. at 416 (Rehnquist, J., dissenting) (suggesting that where a state court applies the correct Supreme Court precedent, a federal habeas court can proceed directly to "unreasonable application" review).

In the second category of cases, a federal court may grant the writ if a state court identifies the correct rule of law but applies the rule to the facts of the case in an unreasonable manner. Id. at 408. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. Id. at 409. While the Supreme Court acknowledges that the term unreasonable "is no doubt difficult to define," it has made clear that "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 411-12. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.

The Williams decision provides, if only by example, some limited guidance as to what can be considered "an unreasonable application of clearly established Federal law as determined by the Supreme Court." First, the decision seems to suggest that errors involving the application of the wrong rule of law should be confined to the "contrary to" provision. In Williams, for example, the petitioner asserted a claim of ineffective assistance of counsel. Id. at 367. In reversing the decision of the Virginia Supreme Court, the Supreme Court first noted that Strickland v. Washington, 466 U.S. 668 (1984), provides the clearly established law for reviewing claims of ineffective assistance of counsel. Id. at 390-1. The Court held that "[t]he Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364 (1993), modified or in some way supplanted the rule set down in Strickland." Id. at 391. But there was disagreement as to how this error should be categorized. Justice Stevens, writing for the Court, found that the Virginia Supreme Court's application of the wrong rule of law was "not only `contrary to,' but also... `an unreasonable application of' the clear law as established by this Court." Id. at 397. Justice O'Connor's concurring opinion, however, suggests that application of the wrong rule of law "was contrary to Strickland," but presumably not unreasonable. Id. at 413. This analysis meshes with the standard of review agreed upon by the majority, which criticized Justice Stevens for conflating the two standards, stating that "[h]e fails to give meaning to both the `contrary to' and `unreasonable application clauses of the statute.'" Id. at 404. Thus, it would appear that application of the incorrect legal standard is not an "unreasonable application of clearly established law," although it may be contrary to it.

Second, an "unreasonable application of clearly established law" can include failure to give appropriate weight to evidence relevant to the appropriate rule of law. In Williams, the petitioner contended that his trial attorney had failed to discover and present significant mitigating evidence which, had it been presented to the jury at his sentencing, might have persuaded the jury to spare his life. Id. at 403. Instead, the jury unanimously recommended that he be sentenced to death. Id. As to the factual question of whether there truly was mitigating evidence which Williams' trial counsel had failed to discover, the Virginia Supreme Court agreed that there was. Id. at 398.

As to the legal question of whether the outcome of Williams' sentencing might have been different had the mitigating evidence been presented to the jury, the Supreme Court concluded that the Virginia Supreme Court had "failed to evaluate the totality of the available mitigation evidence... Mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case. The Virginia Supreme Court failed to entertain that possibility." Id. See also Id. at 401 (O'Connor, J., concurring) ("The Virginia Supreme Court's decision reveals an obvious failure to consider the totality of the omitted mitigation evidence... For that reason, and the remaining factors discussed in the Court's opinion, I believe that the Virginia Supreme Court's decision `involved an unreasonable application of... clearly established Federal law, as determined by the Supreme Court of the United States").

DISCUSSION

Petitioner has properly exhausted his state remedies. All of the grounds asserted by petitioner in support of his application for habeas corpus were previously presented in his appeal to the New Jersey state courts, triggering the standard of review provided by 28 U.S.C. § 2254(d). *fn2 Before embarking on the task of reviewing petitioner's twelve grounds for relief, some points of general applicability should be considered.

First among these considerations is an understanding of the role habeas corpus plays in our federal system. With respect to proceedings in State courts, federal courts "do not hold a supervisory power over the courts of the several States;" they may intervene only to correct wrongs of a constitutional dimension. Dickerson v. United States, 530 U.S. 428, 438 (2000); Smith v. Phillips, 455 U.S. 209, 221 (1982). In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991).

One consequence is that errors of state substantive law generally do not provide a basis for habeas relief. See Estelle at 67. It is not the province of the federal courts to re-examine state court determinations on state law questions. Id. at 67-68. See, e.g., Guzman v. Morris, 644 F.2d 1295, 1297 (9th Cir. 1981) (holding that federal court had no jurisdiction to hear claims that a state agency had misapplied state law in determining petitioner's sentence). The same deference applies to a State's rules of evidence and procedure. See Crane v. Kentucky, 476 U.S. 683, 690 (1986) ("we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability- even if the defendant would prefer to see that evidence admitted"); Lisenba v. California, 314 U.S. 219, 236 (1941) (holding that States are free to adopt, by statute or decision, such evidentiary rules as they elect, whether they conform to those applied in the federal or in other State courts).

There are, however, occasions where a state court's rulings on matters of state law can approach constitutional dimensions. While federal courts do not sit to review the propriety of a state court's actions in the admission of evidence, in at least some circumstances the limitations placed on an accused's ability to present a fair and complete defense may be severe enough to violate due process. Montana v. Egelhoff, 518 U.S. 37, 61 (1996) (Souter, J., dissenting); see also Lisenba at 228, 236 (1941) (holding that a state court's evidentiary rulings may form the basis of relief when they "so infused the trial with unfairness as to deny due process of law"). Similarly, adoption of an evidentiary or procedural rule "cannot foreclose inquiry as to whether, in a given case the application of that rule works a deprivation of the prisoner's life or liberty without due process of law." Lisenba, 314 U.S. at 236.

There are also, in any trial, minor errors that do not rise to the level of a constitutional violation. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (noting the "virtually inevitable presence of immaterial error" at trial). Even those errors which do have constitutional overtones may, in the circumstances of a particular case, be regarded as harmless error. See Brecht v. Abrahamson, 507 U.S. 619, 629 (1993) (stating that trial errors are amenable to harmless-error analysis because they may be quantitatively assessed in the context of other evidence presented in order to determine the effect on the outcome of the trial). At some point, however, an accumulation of these types of errors, which taken individually are constitutionally insignificant or at least harmless, may in the aggregate "so infect a trial" as to result in a deprivation of due process. See Taylor v. Kentucky, 436 U.S. 478 (1978) (holding that on direct review several errors at trial, none of which individually rise to constitutional dimensions, may have the cumulative effect of denying a defendant a fair trial); Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988) (applying cumulative error analysis on habeas review and concluding that "considered cumulatively, these errors produced a trial setting that was fundamentally unfair"). With this framework in mind, a review of petitioner's individual grounds for relief follows.

A. Restrictions on the Cross-Examination of Nance Seifrit:

Petitioner contends that the trial court unduly restricted his right to cross- examine prosecution witness Nance Seifrit, in violation of the Confrontation Clause of the Sixth Amendment. In particular, he contests the trial court's refusal to allow cross-examination on several issues affecting Seifrit's credibility as a witness.

The right of an accused to due process in a criminal trial is essentially the right to a fair opportunity to defend oneself against the State's accusations. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The right to confront and cross-examine witnesses is a primary interest secured by the Confrontation Clause and has long been recognized as essential to due process; id.; Kentucky v. Stincer, 482 U.S. 730, 736 (1987). In at least some circumstances the limitations placed on the accused's ability to present a fair and complete defense may be severe enough to violate due process. Montana v. Egelhoff, 518 U.S. 37, 61 (1996) (Souter, J., dissenting); see also Lisenba v. California, 314 U.S. 219, 228 (1941) (implying that a state court's evidentiary rulings may form the basis of relief when they "so infused the trial with unfairness as to deny due process of law").

Short of such severe limitations, however, the Sixth Amendment does not guarantee the right to "cross-examination in whatever way, and to whatever extent, the defense might wish." Stincer at 739, quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985). The right to confront witnesses is a "functional right" designed to promote reliability in the truth-finding functions of a criminal trial. Stincer at 737. The accused does not enjoy an unfettered right to offer testimony that is inadmissible under standard rules of evidence. Taylor v. Illinois, 484 U.S. 400, 410 (1988); Crane v. Kentucky, 476 U.S. 683, 690 (1986) ("we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability- even if the defendant would prefer to see that evidence admitted"); Egelhoff, 518 U.S. at 42 (plurality opinion) ("the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible... And any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence"). It is against this constitutional backdrop that the limitations placed on petitioner's cross-examination of Seifrit must be judged, bearing in mind the "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689.

Petitioner first asserts that he should have been allowed to present evidence concerning a charge of credit card fraud which Seifrit committed in the period between petitioner's two criminal trials. Petitioner contends that cross-examination on this issue was essential in refuting the prosecution's presentation of Seifrit as a woman with a checkered past who had "cleaned up her act." The Appellate Division rejected this claim, noting that under N.J.R.E. 608, a trait of character cannot be proved by specific instances of a witness' conduct. Dreher II, 302 N.J.Super. at 455.

The court held that "[r]efuting the State's claim that Seifrit was a reformed woman is just another way of showing that Seifrit had not reformed or that her character was bad. Proving a trait of character, by any other name, is still not permissible under our rules of evidence." Id. at 456.

Petitioner argues, as he did before the Appellate Division, that the prosecution opened the door on the question of character by seeking to show that Seifrit had reformed her ways. Indeed, petitioner stresses that:

[w]here this argument is focused is on the State's strategic choice to concede as much of Ms. Seifrit's unsavory past as possible as a prelude to an argument that that was the old Nance Seifrit and that there was a new, `grown up' Seifrit who was telling the truth at Petitioner's trial and who had demonstrated her reformed character by holding down a responsible job in the three years since her initial trial testimony. Petitioner's brief at 6.

After reviewing the record, the Appellate Division concluded that "[petitioner] has greatly overstated the State's position with regard to Seifrit's `reformation.'" Dreher II at 456.

In contrast to the limited background information about Seifrit's recent work in a bank and the prosecution's comment during summation that Seifrit appeared to be `growing up,' the record is replete with evidence of Seifrit's prior lies and deception. Even petitioner concedes that the record presents "a wealth of cross-examination material available to impeach Seifrit's credibility." Petitioner's brief at 6. While he was not permitted to give the precise details of the charges, petitioner was permitted to tell the jury that Seifrit had fraudulently obtained a credit card by using someone else's Social Security number.

The trial court also refused to allow evidence that the Morris County Prosecutor's Office ("MCPO") had once described Seifrit in a legal brief as "a petty thief and liar who has admitted she has lied when it has been to her advantage to do so." Petitioner argues that this statement should have been admitted as an admission by a party- opponent. The Appellate Division did not explicitly state whether this statement, which was not contained in an affidavit or certification, could be considered a party-admission but ruled that it was properly excluded under N.J.R.E 403 as a needless presentation of cumulative evidence. Dreher II at 458-59. Given the extensive material in the record regarding Seifrit's capacity for truthfulness, this ruling hardly amounts to a violation of due process.

Finally, the trial court would not allow petitioner to present evidence concerning the extent of Seifrit's indebtedness at the time of the murder, information petitioner contends is relevant to his theory that Seifrit had a financial motive to kill Gail Dreher. Petitioner was permitted to introduce evidence of the debt's existence, but not its extent. On this point, the Appellate Division concluded that "[g]iven the evidence that the jury heard regarding Seifrit's personal and financial background, any error in the exclusion of this one piece of testimony was clearly harmless." Dreher II, 302 N.J.Super. at 459. The record indicates that the jury was made aware of Seifrit's debt, and petitioner was permitted to present his theory that Seifrit had murdered Gail Dreher to clear a path to petitioner and his money. Petitioner was not deprived of the right to impeach Seifrit's credibility in this manner.

On the whole, it cannot be said that these relatively minor limitations placed on petitioner's cross-examination of Seifrit deprived of him "the right to a fair opportunity to defend oneself against the State's accusations," Chambers, 410 U.S. at 294, or that the trial court's rulings "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). The Confrontation Clause does not require the trial court to give petitioner unlimited latitude in presenting his case. See United States v. Scheffer, 523 U.S. 303, 308 (1998). The Appellate Division's determination of this matter is not contrary to clearly established Supreme Court principles regarding the right of cross-examination, nor can it be said that the ruling presents an unreasonable application of those principles.

B. Jury Instruction on Reasonable Doubt:

During the course of deliberations, the jury requested an additional instruction on the meaning of reasonable doubt. Petitioner asserts that the trial judge erred by resorting to a dictionary definition "which severely diluted the constitutional requirement that guilt be established to a near certitude." Petition at 9.

The trial judge originally charged the jury with the model New Jersey charge on reasonable doubt, stating:

A reasonable doubt is not a possible doubt or an imaginary doubt because everything we deal with in life is open to some possible doubt. A reasonable doubt is an honest uncertainty about the guilt of the defendant that exists in your minds after you have fairly and impartially considered all of the evidence in the case. A reasonable doubt may arise from the evidence itself or from the lack of evidence.

When asked for re-instruction, the trial judge augmented the model charge and gave the following supplemental instruction: Webster defines reasonable doubt as governed by or in accordance with sound thinking within the bounds of common sense, not extreme or excessive. When we use the term reasonable doubt, we're not talking about a possible doubt or an imaginary doubt because everything that we deal with in life is open to some possible doubt or some imaginary doubt, and truly, you can conjure up doubt about any proposition that you care to think about. You can find some doubt about that. That's not what we're talking about. We're talking about an honest uncertainty regarding the guilt of the defendant that exists in your mind after you have fairly and impartially considered all of the evidence in the case. And that reasonable doubt may rise from the evidence itself or from the lack of evidence. Da 2095.

The underscored passages denote the language which augments the model jury charge.

In its review of this issue, the Appellate Division agreed with petitioner that "a court should not ordinarily give the jury a dictionary definition of `reasonable,'" and noted that doing so is now disfavored under New Jersey law. *fn3 Dreher II, 302 N.J.Super. at 469. But the question to ask in reviewing a reasonable doubt instruction, the court noted, is whether, taken as a whole, the instructions fail to impress upon the jury the State's burden to prove guilt beyond a reasonable doubt. Id. at 467-68. Reviewing the jury instruction as a whole, the court disagreed that the trial judge's use of the dictionary definition reduced the State's burden of proof. Id. at 469. This conclusion must be accepted unless it is contrary to clearly established federal law, as determined by the Supreme Court; or results from an unreasonable application of clearly established Supreme Court jurisprudence.

The Constitution requires that evidence of criminal guilt be supported by proof beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970); Jackson v. Virginia, 443 U.S. 307, 315 (1979). This standard of proof "plays a vital role in the American scheme of criminal procedure," Winship at 363, and requires that the court's instructions impress upon the jurors "the necessity that the defendant's guilt be proved beyond a reasonable doubt." Victor v. Nebraska, 511 U.S. 1, 5 (1994). There is no requirement that certain words be used in defining the prosecution's burden of proof. Id. All that is required is that, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury. United States v. Isaac, 134 F.3d 199, 202-03 (3d Cir. 1998), citing Victor at 5. The constitutional question to be determined is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [reasonable doubt] standard." Victor at 6.

A review of the Appellate Court's decision reveals that the court cited to and applied the correct constitutional standard presented by the Supreme Court in Victor. The court considered the statements made by the trial judge in his supplemental instruction to the jury and determined that "as a whole, the judge's charge did nothing to lessen the State's burden of proving defendant guilty beyond a reasonable doubt." Dreher II, 302 N.J.Super. at 469. Examining the additional language given in the supplemental jury charge, I cannot say that the Appellate Division's determination of this issue presents "an objectively unreasonable application" of the Supreme Court's holding in Victor.

Petitioner's arguments to the contrary favor an unduly restrictive review of the jury instruction, amounting to a nothing more than a mechanical checklist of components. First, petitioner appears to advance the proposition that the use of dictionary definitions in instructing as to reasonable doubt requires nearly automatic reversal of a conviction. While the practice of using dictionary definitions to explain reasonable doubt is generally frowned upon, see New Jersey v. Medina, 147 N.J. 43, 51 (1996); Dreher II at 469, petitioner's proposition that use of dictionary definitions is inherently prejudicial is at odds with the Supreme Court's view that there are no magic words which must be used in defining the prosecution's burden of proof. Victor at 5.

Likewise, petitioner's argument that a proper jury charge "must be balanced" literally resorts to counting sentences to ensure that there is more discussion of what reasonable doubt is than what it isn't. The concept of "balance" referred to in the cases cited by petitioner addresses the same concern expressed by the Supreme Court in Victor; whether, on balance, the jury charge favors the prosecution by lessening its burden of proof. Because the Appellate Division reasonably determined that the jury instructions did not dilute the prosecution's burden of proof below constitutional standards, that determination must remain undisturbed.

C. Exclusion of Rose's Notes Concerning a Sperm Cell:

During Gail Dreher's autopsy, swab samples were taken from her bodily orifices, including her nostrils. Slides made from these smears were sent to the New Jersey State Police laboratory for microscopic examination. On one of the slides taken from Gail Dreher's nose, a forensic chemist named Patricia Rose observed a sperm cell. Petitioner contended that the presence of a sperm cell supported his theory that someone else had sexually assaulted Gail Dreher and then murdered her, because he had a vasectomy in 1974 and could not have been the source of the sperm cell.

Rose testified for the prosecution at petitioner's trial, admitting that she had observed a sperm cell on the slide in 1986. The prosecution challenged the accuracy of Rose's testimony, suggesting that Rose was not sure she had seen a sperm cell. To bolster Rose's testimony, petitioner sought to introduce contemporaneous notes made by Rose during her microscopic observations which included a specific reference to finding a sperm cell. The trial court excluded the notes, stating that the identification of the sperm was inadmissible as an opinion. Petitioner argues that this ruling amounts to a violation of his Sixth Amendment right to present documentary evidence corroborating exculpatory testimony.

In reviewing this argument, the Appellate Division noted that the jury heard lengthy testimony from Rose regarding her observation of the sperm cell and that her observation was confirmed by her two supervisors. The Appellate Division held that the trial judge "did not abuse his discretion in excluding this single piece of cumulative evidence." Dreher II, 302 N.J.Super. at 496. In addition, the Appellate Division determined that the notes, which were "replete with scientific terms, terms of art, and abbreviations," could be excluded as likely to confuse the jury.

As already stated, the Sixth Amendment does not guarantee a criminal defendant the unfettered right to present whatever evidence he may choose. Taylor v. Illinois, 484 U.S. 400, 410 (1988); Crane v. Kentucky, 476 U.S. 683, 690 (1986); Egelhoff, 518 U.S. at 42 (plurality opinion). There is no constitutional violation where the exclusion of evidence is not so egregious as to offend due process. Petitioner's theory regarding the sperm cell was adequately presented by both Rose's testimony about her observation and the corroborating testimony of her supervisor, who testified that both he and another supervisor had confirmed the presence of the sperm cell. Under these circumstances, it cannot be said that the trial judge's decision to exclude an additional item of evidence on this point rises to the level of constitutional violation.

D. Jury Instruction Concerning Unavailability of Nathan Seifrit:

In the eleventh ground of his petition, petitioner alleges that the trial court erred in refusing to instruct the jury that Seifrit's brother, Nathan Seifrit, was unavailable as a defense witness. This requested instruction was related to petitioner's argument, advanced during his opening statement, that Nathan Seifrit could have been the murderer.

Petitioner has chosen not to elaborate on this ground in his brief in support of the petition. The Appellate Division stated that "[w]hile a defendant is entitled to prove his innocence by showing that someone else committed the crime, the proof offered must have the rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." Dreher II, 302 N.J.Super at 502. The trial judge found that no evidence has been adduced tying Nathan Seifrit to the murder of Gail Dreher. A review of the record shows that petitioner's theory regarding Nathan Seifrit is nothing more than sheer conjecture, and the refusal to give the requested instruction has no due process implications.

E. Admission of Dr. Tucker's Expert Testimony:

Petitioner argues that the trial court erred in allowing the Morris County Medical Examiner, Dr. Ernest Tucker, to give testimony concerning the time of Gail Dreher's death because Tucker "employed a methodology for which there was no scientific basis." Petitioner's brief at 28. Petitioner is referring to Dr. Tucker's idiosyncratic use of the "vitreous potassium test," an established forensic technique which correlates the amount of time elapsed after death with the level of potassium concentration found in the vitreous humor of the human eye.

As the parties explain, research has shown that cells in the retina and tissue surrounding the eye begin to break down after death, releasing potassium into the vitreous humor. Dr. John I. Coe, a physician, used the results of this research to prepare a graph which has since been widely accepted and distributed to all medical examiners in the United States by the Department of Justice Law Enforcement Assistance Administration. See Dreher II at 462. By measuring the concentration of potassium found in the vitreous humor against Dr. Coe's graph, it is possible to estimate the approximate time of death within a range of a few hours.

Dr. Coe's graph assumes that the distribution of coordinates along the graph is a linear regression. Dr. Tucker, however, believes that the coordinates resulting from the research do not form a straight line, but instead form a curve suggesting a much wider range of possible times for a victim's death than the range obtained using Dr. Coe's method.

Applying his method, Dr. Tucker estimated that Gail Dreher died at approximately 7:40 a.m., plus or minus four hours, a time which coincided with Nance Seifrit's version of the events. Reference to the graph applying Dr. Coe's method would have set the approximate time of death at 11:00 a.m., and within a much smaller range of possible times.

Petitioner contends that Dr. Tucker's testimony regarding the vitreous potassium test should have been excluded as unreliable "junk science conveniently tailored to fit the prosecution's theory-of-the- case." The Appellate Division, whose judgment must form the starting point in this Court's review, viewed the conflicting methods for estimating the time of death as a difference of expert opinion "subject to legitimate debate." Dreher II at 463. Whether Dr. Tucker performed the test correctly, the Appellate Division held was ultimately "a fact question for the jury." Id.

The admissibility of scientific testimony is generally a matter of state evidence law, and there is a "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689. It is only where a state's application of its evidence law rises to the level of depriving an accused of his right to a fair trial that constitutional concerns are implicated. See Rogers v. Richmond, 365 U.S. 534, 545 n.3 (stating that determinations of the admissibility of evidence are a matter of local procedure but must be determined according to constitutional standards satisfying the Due Process Clause); Lisenba, 314 U.S. at 236 (stating that adoption of an evidentiary rule "cannot foreclose inquiry as to whether, in a given case the application of that rule works a deprivation of the prisoner's life or liberty without due process of law").

"State and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules." United States v. Scheffer, 523 U.S. 303, 309 (1998). "The integrity of the adversary process... depends both on the presentation of reliable evidence and the rejection of unreliable evidence..." Taylor v. Illinois, 484 U.S. 400, 414 (1988). As a matter of federal evidentiary law, the Appellate Division's ruling on the admissibility of Dr. Tucker's testimony would have been clear error, Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993), but the State courts establish State rules of evidence.

The Appellate Division recognized that Dr. Tucker stands virtually alone in his methodology; "[a]lthough he thought there were some scientists who had probably used his method, he could not name any offhand." Dreher II at 462. Dr. Coe submitted a certification in support of petitioner's pretrial motion to suppress Dr. Tucker's testimony, stating that a person must follow the linear regression method in order to use his graph properly. Id. Dr. Coe further stated that the method Dr. Tucker had used was not sound, reliable, or accurate; that it lacked the necessary scientific basis to produce uniform and reasonably reliable results; that it did not contribute materially to the ascertainment of the truth; was not generally accepted by experts in forensic pathology or in the authoritative literature; was likely to result in aberrational findings; and was a distortion of scientific and statistical principles. Id. Significantly, the prosecution failed to produce anyone to refute Coe's certification or support Tucker's approach. Id.

Even under the liberal standards of the Federal Rules of Evidence, Dr. Tucker's testimony should not have made it past the "gatekeeping role" of the trial judge. See Daubert v. Merrell Dow Pharmaceuticals., Inc., Id. at p. 597; Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993). *fn4 New Jersey's courts continue to apply the more stringent "Frye" test, which requires that a scientific method enjoy "[g]eneral acceptance in the field," as proven "(1) through expert testimony; (2) authoritative scientific literature; or (3) persuasive judicial opinions." Dreher II, 302 N.J.Super. at 464. The trial court permitted Dr. Tucker to present his findings, despite the fact his method of applying the vitreous potassium test fails to satisfy any of these traditional indicia of reliability.

Were it a question of first impression for this Court to decide, the admission of this testimony might well be considered a violation of petitioner's right to due process. In other contexts it is well established that due process may be violated by the admission of certain categories of unreliable and prejudicial evidence, "state evidence rules notwithstanding." Barefoot v. Estelle, 463 U.S. 880, 925 (1983) (Blackmun, J. dissenting); citing Watkins v. Sowders, 449 U.S. 341, 347 (1981)(holding that under Due Process Clause, "it is the reliability of identification evidence that primarily determines its admissibility"); Foster v. California, 394 U.S. 440 (excluding eyewitness identification where suggestive elements "so undermined the reliability of the eyewitness identification as to violate due process"). See also United States v. Scheffer, 523 U.S. 303, 309 (1998) (holding that Sixth Amendment is not violated by Military Rule of Evidence 707, which excludes use of polygraph evidence in all cases, because there is "simply no consensus that polygraph evidence is reliable").

Nevertheless, the Supreme Court has distinguished cases excluding unreliable "scientific" evidence as "not constitutional decisions, but cases of federal evidence law." Barefoot v. Estelle, 463 U.S. 880, 899 n.7 (1983). *fn5 Some circuits have advised that "before a scientific test should be used as [inculpatory] evidence, its reliability should be very high, because of the `aura of infallibility' that surrounds scientific evidence." United States v. A&S Council Oil Co., 947 F.2d 1128, 1133 (4th Cir. 1991). As a matter of due process, however, "[t]here is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible." United States v. Scheffer, 528 U.S. at 334 (Stevens, J., dissenting), citing Barefoot at 898-901.

In Barefoot, the petitioner argued that his death sentence should be set aside because of the testimony of two psychiatrists who predicted he would continue to be a danger in the future. 463 U.S. at 896. Petitioner argued that such testimony is inherently unreliable, presenting a psychiatric expert who testified that "predictions of future dangerousness were wrong two out of three times," a conclusion shared by the American Psychiatric Association. Id. at 899 n.7.

Despite obvious questions about the reliability of the psychiatric evidence, the Court held that those questions should be left to the trier of fact "who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting future dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored." 463 U.S. at 898. See also Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence"). Doubts about the efficacy of a scientific method "can be called to the attention of the jury," who will "be able to separate the wheat from the chaff." Barefoot, 463 U.S. at 899 n.7.

Under "clearly established Supreme Court precedent" as set forth in Barefoot, I am constrained to conclude that, standing alone, the admission of Dr. Tucker's testimony did not violate petitioner's right to due process. A review of the trial transcript shows that petitioner was permitted to attack Dr. Tucker's use of the vitreous potassium test on cross-examination. After cross-examining Dr. Tucker on the method he used to determine the time of death, petitioner's counsel questioned its acceptance as follows:

Q: So is that perhaps the reason why other scientists haven't done it your way?

A: I think there are some other scientists that probably have done it my way.

Q: Can you cite a single article?

A: No, I cannot.

Q: Is it fair to say that Dr. Coe's method yields a very different result than your use of his data did?

A: Yes.

Q: And he was the author of the method and the data?

A: Yes.

Q: You have not published in this field, have you?

A: No, I have not. Transcript of March 30, 1995 at 87-89.

Dr. Tucker later conceded that Dr. Coe's method was the method chosen by the Department of Justice and distributed in a manual to medical examiners throughout the United States. Id. at 96-97. As in Barefoot, Dr. Tucker's testimony could be countered not only as erroneous in this particular case, "but also as generally so unreliable that it should be ignored." 463 U.S. at 898.

Petitioner could also have called a forensic expert of his own to counter Dr. Tucker's testimony, or could have made use of the cross- examination testimony during his summation. Having had the opportunity to attack the shortcomings in Dr. Tucker's methodology, clearly established Supreme Court precedent did not preclude the State courts from leaving the duty of "separating the wheat from the chaff" to the jury.

F. Cross-Examination of Investigator Allman:

In similar fashion to his arguments regarding the cross-examination of Nance Seifrit, petitioner asserts that the trial court placed unconstitutional restrictions on his ability to cross-examine Investigator Gregory Allman of the MCPO concerning an exculpatory statement made by a witness.

In January of 1986, Lois Wolkowitz executed a signed statement certifying that she had tried to telephone Gail Dreher twice on the day of the murder and that a man had answered the phone on both occasions. The first call was placed between 11:45 a.m. and 12:30 p.m., and the second call at approximately 2:55 p.m. Evidence at trial tended to show petitioner answered the second call, but petitioner contends that he could not have been home at the time of the first telephone call.

Investigator Allman relied on Wolkowitz' statement in his affidavit in support of a warrant to obtain telephone records. Petitioner argues that under the circumstances, he should have been allowed to cross- examine Investigator Allman about Wolkowitz' statement under N.J.R.E. 803(b)(2), which provides a hearsay exception for statements whose content a party opponent has adopted or in whose truth a party opponent has manifested a belief. The trial court refused to allow petitioner to introduce the portion of Allman's affidavit incorporating Wolkowitz' exculpatory statement. Dreher II at 505. The Appellate Division noted that the federal circuit courts are split as to whether the State may be considered a party opponent in a criminal prosecution, but ruled that the trial court had erred as a matter of New Jersey evidence law. Id. at 506-08.

It found that while it is inappropriate to bind the prosecution to any and all statements taken during an investigation, when the State submits evidence to a judicial officer in support of an application for a search warrant, it has manifested its belief in the truth of that statement. Id. at 508. Notwithstanding, the Appellate Division concluded that the exclusion of this evidence was harmless error because "it would not have constituted overwhelmingly powerful evidence," and that if it had been admitted "Allman could easily have provided adequate explanations for it." Id.

Federal courts may not consider, as independent grounds for habeas corpus relief, arguments that do not raise federal claims. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Guzman v. Morris, 644 F.2d 1295, 1297 (9th Cir. 1981). The exclusion of this evidence was an error as a matter of New Jersey evidentiary law. The question remains, however, whether exclusion of this evidence presents a violation of petitioner's federal rights. As already noted, the Sixth Amendment does not grant the accused an unfettered right to cross-examine in whatever manner he may choose, and it cannot be said that this error, by itself, violated due process by substantially limiting petitioner's ability to present a fair and complete defense. Petitioner could also have elicited this same information by calling Wolkowitz as a witness, and at trial the defense failed to establish that Wolkowitz was unavailable to testify. *fn6

Because petitioner did not seek to obtain substantially similar testimony in an alternative manner, it cannot be said that the exclusion of this evidence from Investigator Allman rises to the level of a due process violation. As the Appellate Division indicated, the failure of the trial court to admit this evidence is an error of state evidentiary law. This error, when evaluated alone, cannot find redress in the federal forum.

G. Lett's Pre-Hypnotic Recollections and Police Reports Concerning Those Recollections:

One of the most troubling of petitioner's contentions is that the trial court erred in admitting the pre-hypnotic recollection of Austin Lett, the State's second most important witness, because notes made by law enforcement officers regarding that recollection had been fabricated and/or destroyed. Petitioner asserts that the trial court denied him a full and fair hearing on that issue.

Lett, a neighbor of petitioner, testified as a State witness at the first trial that he had seen from his own driveway Petitioner's car leaving the Dreher's driveway at about 9:30 a.m. on January 2, 1986, the day of the murder. This tended to confirm Seifrit's testimony. According to petitioner's statements to the police he had been at work at that time.

At the request of the Morris County Prosecutor's Office, Lett's recollection of his January 2 observations was hypnotically refreshed on January 23, 1986. Prior to the hypnosis session the Prosecutor's Office provided the psychiatrist who conducted the hypnosis with a summary of its information about Lett's observations. The summary contained substantial differences from the observations about which Lett testified, and petitioner contends that an earlier report containing that information was destroyed and a substitute report was forged.

Lett was an active alcoholic in 1986. According to the summary information provided to the psychiatrist Lett had said that he observed a car leaving the Dreher's driveway in his rear view mirror after driving 200 to 300 yards (600 to 900 feet) down the street. On the other hand Lett told the hypnotist and testified at the first trial that he made the observation just as he was leaving his own driveway, which is about 190 feet from the Dreher driveway.

At the first trial petitioner moved to exclude Lett's testimony because his recollection had been tainted by the hypnosis. The court denied the motion. After reversal of petitioner's initial conviction petitioner moved for an evidentiary hearing to determine whether the State, before the first trial, had attempted to improve its case by destroying evidence that would have shown that Lett's testimony, like Seifrit's, was unreliable. The trial court denied both motions without holding an evidentiary hearing. In August 1993, however, the Appellate Division of the Superior Court granted leave to appeal the order and remanded for evidentiary hearings on both issues.

Petitioner has marshaled the evidence he claims supports his contention that the State deliberately destroyed evidence and committed an egregious Brady violation. Brady v. Maryland, 373 U.S. 83 (1963).

Officer Elizabeth Goeckel of the Chatham Police Department and Investigator Wayne Longo of the Prosecutor's Office interviewed Lett on the evening of January 4, 1986. Longo's interview card stated, "1-2-86, 9:15/am, Austin observed John Dreher's silver tornado exit driveway and follow Austin out of the community." Goeckel took notes during the interview. By January 6 Goeckel had completed typing a document that described the Lett and other interviews she conducted on January 2, 3 and 4.

On January 23 Investigator Mark Prach of the Prosecutor's Office and Detective Joseph Roff accompanied Lett when Dr. Sharad Wagle hypnotized him. Before the hypnosis Prach and Roff gave Dr. Wagle a typed summary that purported to describe, among other things, what Lett had told the investigators on January 3 (not January 4), namely:

Mr. Lett stated that sometime in the morning, he pulled out of his driveway and turned onto Huron Drive. Mr. Lett traveled approximately 200-300 yards on Huron Drive, when he looked up into the rear view mirror of his car and observed a vehicle traveling down the Dreher driveway, pulling onto Huron Drive.

This was in marked contrast to what Lett told the psychiatrist and to his testimony at both trials, that he first saw Dreher's car as he was leaving his own driveway, 190 feet from the Dreher's driveway. It is petitioner's contention that Lett could not have identified petitioner through a rear view mirror at 600 to 900 feet, and that the State acted to eliminate a report of a prior Lett statement consistent with the summary Prach and Roff gave to the hypnotist.

In October 1986 during a meeting with Prosecutor's Office investigators Gregory Allman and Mark Meehan, Officer Goeckel observed that she had retained her notes of her interview with Lett and his wife. In June of 1987, after petitioner's arraignment on the initial indictment, the State produced more than 200 reports of interviews and other investigative activities conducted by the Chatham Township Police Department and/or the Morris County Prosecutor's Office. Included were a January 6, 1986 report that Goeckel authored describing her response to the crime scene and four other reports by her. The state did not produce a report by Goeckel describing interviews with the Letts or others on January 2, 3 and 4, 1986, although Gregory Allman's memorandum of October 23, 1986 (first produced on December 6, 1993) refers to the report Goeckel filed dated January 2, 1986.

Petitioner relies upon apparently unusual events which occurred in connection with a Hurd hearing that began on August 1, 1988 to determine the admissibility of Lett's testimony after hypnosis. During the State's cross examination of petitioner's expert, Dr. Martin Orne, the State cross examined Dr. Orne on what appeared to be undisclosed material about an interview with Lett in early January 1986. The trial judge ordered the State to produce within one week any reports "which in any way relate to the summary."

Instead of producing the report by Goeckel referred to in Allman's October 23, 1988 memorandum the State reinterviewed Lett on the morning of August 3, 1988 concerning his recollection of the January 4, 1986 interview. Then between August 2 and 6, 1988 someone at the Prosecutor's Office prepared a report to be signed by Officer Goeckel of the Chatham Police Department regarding her interviews conducted on January 2, 3 and 4, 1986, including her interview of the Letts. The Prosecutor's Office typed the report on a report form bearing the name of the Chatham Township Detective Bureau and delivered it to the Township Detective Bureau. Officer Goeckel was called back from an in- service school she was attending in Philadelphia. She returned and signed the report on August 6, 1988, making no changes to the part about Lett. When the report was turned over to the defense it was described as a police report, with no indication of the role the Prosecutor's Office played in its preparation. In this report, unlike the summary turned over to the hypnotist. Lett purportedly stated at the January 4, 1986 interview that he had observed petitioner's car from the top of his own driveway.

Officer Goeckel's contemporaneous notes of the January 4, 1986 interview had been destroyed. She stated that she had destroyed them the same night as the interview after typing a description of the interview. Allman's October 23, 1986 memo establishes that as of October 21, 1986 Officer Goeckel still had her notes of the interview of Lyla Lett conducted the same night as the Austin Lett interview.

The State produced a document described as "Rough notes, Ptl. Elizabeth Goeckel, 13 pages." (Exhibit S-7 at the 1993 hearing). S-7 is a photocopy of a typed document with several handwritten notations.

It describes the same interviews as the report prepared at the Prosecutor's Office, plus the January 2, 1986 police response to the crime scene. Pages 11 and 12 of S-7 contain a description of the January 4, 1986 Lett interview that coincides with the description in the report typed at the Morris County Prosecutor's Office. The State contends that S-7 is a photocopy of a draft report typed by Officer Goeckel in January 1986 and that pages 3 to 13 were not incorporated into a final report until August 1988. Petitioner contends that S-7 was an altered document and that pages 8-13 of S-7 were not part of the document that Officer Goeckel typed at the Chatham Township Police Department in January 1986.

To summarize petitioner's contentions in his own words:

Although erroneous rulings at the trial level prevented the development of a full record, the existing record compels two conclusions. First, the version of Lett's story set forth in the summary - the 200-to300-yards-down-Huron-Drive version - did not just suddenly appear on January 23, 1986 when Mr. Lett was taken for hypnosis, but had been reflected in Goeckel's notes of the 1/4/86 interview, in her draft report; and/or in a final report that she signed within a reasonable time after the interview (and most likely in all three). Second, during the Hurd hearing in 1988, to prevent further impeachment of a former alcoholic whose testimony the State considered critical - because its principal witness (Seifrit) already had told so many different stories - Goeckel's draft report was altered, her final report was discarded or destroyed, and a new "final" report was prepared at the prosecutor's office. The purpose was to make it appear that Lett had said that his observation of a car was made as Lett exited his driveway (less than 200 fee away), rather than from 800 to 1100 feet away in the rear view mirror of a moving car.

The psychiatrist's summary prepared by the prosecutor's office in January 1986 was quite specific about several matters, including: (1) the place of Lett's initial observation (200 to 300 yards down Huron Drive); (2) the manner in which the observation was made in his rear view mirror); (3) Lett's precise route (Huron Drive to Ostrander Place to Van Houton Avenue to Ramapo Trail to Fairmount Avenue); (4) the intersection that he saw the other vehicle approach (Huron Drive and Ostrander Place); and (5) the street onto which it appeared the other vehicle would turn from Huron Drive (Ostrander Place). (Da541). No notes or report reflecting any of these facts has ever been produced. It would be astonishing, however, for such details to have been included in the summary without ever having been reflected in any underlying document.

The State's theory, which it sought to establish through Goeckel's testimony, was that Goeckel had typed a draft report by January 6, 1986, but that, except for the part concerning the Chatham Township Police Department's response to the crime scene, no final report was prepared until August 1988, 21/2 years later and that Goeckel was summoned back from in-service training to sign a routine report that, she was told, had never been "finalized." (Da449-16 to 500-9). S-7 was allegedly a copy of her draft report. According to the State, Lett's account was described in S-7 is different from the account in the summary simply because errors were made in preparing the summary.

This version of events is totally implausible. When S-7 is laid side by side with the summary, it is obvious that the summary could not have been based on (1) S-7, (2) notes consistent with S-7, or (3) an oral description of (1) or (2).

These are basic and irreconcilable contradictions between two brief descriptions of Lett's account. If S-7 were an authentic copy of a document typed by Goeckel in January 1986, and if her notes had reflected the same statements by Austin Lett as S-7, it is inconceivable that the summary would read as it does. The contradictions are just too glaring for the State's explanation to pass muster.

S-7 is also not the document Goeckel reviewed when she met with Allman and Meehan in October 1986, nor is it a copy of that document. After the meeting, Goeckel revised the portion of her report concerning Lyla Lett (Da443-8 to 9), but that revision is not reflected on S-7 (Da448-17 to 21). The State has never produced the original document that Goeckel typed in January 1986, nor explained its disappearance.

S-7 bears other earmarks of alteration. Goeckel testified that she typed her entire draft report herself at the Chatham Township Police Department. (Da320-1 to 20). But although the defense was barred from calling a document examiner, it is apparent even to a layman that the type style and letter spacing of pages 9 to 13 fo S-7 (which include the description of the Austin Lett interview), and of all lines on page 8 after the top line, do not match those of any of the Chatham Township Police Department reports or other documents introduced at the hearing.

Furthermore, it would have been extraordinary that, in a murder investigation, by August 2, 1988, more than 2½ years after interviews with the Letts and other neighbors, and just two months before a scheduled trial date (Da88-9 to 10), Goeckel had not yet completed a final report concerning those interviews. All five of Goeckel's other reports were signed in final form by her and by a supervisor within days of the interview or other event in question. (Da531-33, 545-452, 544A, 544B). Moreover, the purported draft, S-7, covered very early interviews with more than 25 witnesses, including Austin Lett and Diane Wells - both key State witnesses at the first trial (Da10, 15) - and a third witness (Gary Sager) also called at the first trial. (Da2205, 2206, 2209-10). The failure to finalize such a critical report hardly would have been overlooked.

Inferences adverse to the State also should be drawn from the following undisputed facts for which no explanations were provided. First, in June 1987 Goeckel's report (in whatever form it then existed) was not produced even though 200 other reports, including five by Goeckel, were produced. Second, by her own admission Goeckel destroyed her notes, in disregard of the provision of the police manual requiring their retention (Da590). Investigator Allman's 10/23/86 report demonstrated that the notes were still in existence in the Fall of 1986 (Da573). The record is also utterly devoid of any evidence suggesting any possible good-faith basis for destroying the notes in the Fall of 1986 or thereafter. Their destruction warrants an inference that their contents would have been adverse to the State's claim that S-7 is an authentic copy of Goeckel's draft report. See, e.g., Wilson v. United States, 162 U.S. 613, 620-21 (1896). Third, it was highly irregular for the State to have what was supposedly the first "final" version of a Chatham Township police report typed at the prosecutor's office on police stationery. Finally, the final report also reflects various grammatical and other minor changes form the purported draft, almost all of which are entirely unnecessary. Compare Da543-39 with Da2199-2212. It is difficult to conceive of any purpose for making those changes, other than to give a reader of both documents, who did not know where the final report was prepared, the false impression that it was prepared simply in order to correct typographical errors and improve grammar. (Brief in Support of Petitioner, pp59-66) (footnotes omitted).

The Petitioner raises disturbing questions concerning the State's treatment of the testimony of a critical witness. Lett testified that he identified petitioner's automobile in petitioner's driveway in Chatham Township on the day of the murder between 9:15 a.m. and 9:30- 9:35 a.m. This contradicted petitioner's claim that he was at work in Newark at the time and corroborated Seifrit's testimony that petitioner returned home after a telephone conversation with her that ended at 8:59 a.m. Nevertheless, petitioner received an evidentiary hearing before his second trial at which he pursued his claim that law enforcement officers' notes or reports concerning Lett's observations of petitioner's vehicle had been fabricated or destroyed.

The hearing was conducted on November 29 and 30 and December 1, 2, 6, 7, 8, 9, 13, 14, 15 and 16, 1993. Twenty-three witnesses testified. Petitioner contended that Lett was interviewed on dates other than January 4, 1986, specifically January 3 and 7 and that interview notes and reports were made that formed the basis of the summary provided Dr. Wagle.

There was testimony of Lett and his wife, of neighbors of the Letts and of law enforcement officers that the first time Lett was interviewed was January 4 when Officer Goeckel and Investigator Longo interviewed him.

Officer Goeckel testified that during the initial stages of the investigation she returned to police headquarters each evening and typed a narrative based on the notes she made during the day. On January 6, 1986 she completed her thirteen page typed draft and destroyed her notes. The draft was sent to the detective bureau. She identified her original typed draft of her notes, and Chief Ramsey testified that he had compared Officer Goeckel's typed draft with her written notes and verified the accuracy and completeness of their incorporation into the typed draft.

The State's evidence put an entirely innocent slant on the Goeckel "final report" that the Prosecutor's Office prepared. During the August 1988 Hurd hearing First Assistant Prosecutor John O'Reilly discovered that Officer Goeckel had never composed a final report from her typed draft (the draft which petitioner argues is a fabrication). O'Reilly directed a member of his staff to type a report in final form for Officer Goeckel's review and signature. Accordingly the final report was typed at the Prosecutor's Office, a procedure employed from time to time in this case. Officer Goeckel reviewed this report on August 6, 1988, found it to be a complete and accurate compilation of the information contained in the typed draft completed on January 6, 1986.

The trial court found that the summary document prepared for Dr. Wagle was not intended to be, nor had it ever become, an official report of any police agency in connection with this case. The court found that the document was intended only to be a general summary to be used by Dr. Wagle in preparation for his hypnotism session with Lett. Its inaccuracies were the product of carelessness by the police. The Appellate Division concurred. Dreher II, 302 N.J.Super. at 488-489. Further, the trial court concluded that there were no interviews of Lett on January 3 or 7 and that no report had been made, fabricated or destroyed. Beyond the inaccuracies in the summary, the trial court found that petitioner failed to establish the existence of any evidence to support a finding that Lett was interviewed on either January 3 or 7. The Appellate Division agreed with the finding of the trial court:

We agree entirely with the judge's assessment. The judge had the firsthand opportunity to assess the credibility of twenty- three witnesses that appeared before him over the course of eleven days. His conclusion that no police reports had been lost or destroyed was supported by the overwhelming weight of the evidence presented at the hearing. While the defendant tried to get someone to admit that Lett had been interviewed on a date other than January 4, 1986, he failed in that endeavor. He similarly failed in his endeavor to substantiate any of the other inconsistencies. Dreher II, 302 N.J. Super. at 488

There can be no question that if the scenario petitioner advances were correct, the prosecution would have deprived petitioner of his federal due process rights contrary to clearly established law as determined by the Supreme Court of the United States. However, the State trial court and its Appellate Division found as a factual matter after a twelve day evidentiary hearing that petitioner's scenario did not take place and that the State did not conceal or fabricate evidence. This court must accept the State courts' decision unless it finds that it was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. 28 U.S.C. §2254(d)(2). Although I might have reached a different conclusion I cannot say that the determination of the State courts was unreasonable.

Petitioner contends that he did not receive a full and fair hearing on the issue of falsification. S-7 had been offered and relied upon by the State and was a critical exhibit, constituting Officer Goeckler's supposed typewritten report made from her subsequently destroyed notes.

It had a number of facial aspects that cast doubt upon it, and petitioner proposed to introduce the testimony of former FBI Document Examiner Shaneyfelt to the effect the S-7 had been altered. The court did not permit Shaneyfielt to testify on the grounds that i) the defense failed to provide a report well in advance of the hearing, ii) the defense had made it impossible to conduct effective cross examination, and iii) the Appellate Division contemplated a hearing without expert witnesses. None of these reasons seems particularly persuasive in the circumstances. It was, however, an evidentiary ruling, and seldom does a state court ruling on evidence give rise to federal intervention.

In light of the extensive hearing that was held at which petitioner had multiple other opportunities to support his contentions, I cannot find that he was deprived of a full and fair opportunity to advance his position by reason of this one evidential ruling. Consequently I am bound by 28 U.S.C. §2254(d)(2) to accept the factual findings of the trial court and the Appellate Division.

In a related claim, petitioner argues that Austin Lett's trial testimony concerning his pre-hypnotic recollections should not have been admitted because of irregularities in the hypnotic procedure. Specifically, petitioner asserts that Lett's memory of the events of the morning of January 2 had been tainted by the hypnotic process. As Dreher I points out, this contention raises many of the same issues presented by a witness whose testimony might have been tainted by an overly suggestive out-of-court identification process. Dreher I at 312- 13.

This claim was first raised in petitioner's first appeal and was rejected. Id. at 308-15. Prior to the first trial, the judge held a hearing to determine whether the hypnotic procedures to which Lett was subjected conformed to the guidelines enumerated in State v. Hurd, 86 N.J. 525 (1981). These standards were again reinforced in a more recent New Jersey case, State v. Fertig, 143 N.J. 115. The trial judge concluded, and the Appellate Division agreed, that the procedures used had in fact violated those guidelines. On that basis, the trial court decided to exclude evidence gleaned from the hypnotic process but did allow Lett to testify concerning his pre-hypnotic recollections.

As Dreher I indicates, many courts continue to allow the inclusion of evidence that a witness recalled prior to hypnosis even where evidence culled from hypnosis itself would not be admissible. Dreher I at 311. Although California embraces the stark position that testimony from any witness who had undergone hypnosis must be excluded, New Jersey has declined to accept such a categorical rule. See People v. Shirley, 31 Cal.3d 18 (1982).

According to a separate line of authority adopted in many states (and catalogued extensively in Dreher I), even jurisdictions that refuse to allow witnesses to testify to events recalled after hypnosis might safely allow witnesses to testify about events that were recalled before hypnosis. People v. Hughes, 453 N.E.2d 484 (1983). This compromise approach recognizes that the hypnotic process may indeed contaminate a witness' true recollections. To best determine whether a witness should be permitted to testify about events recalled before hypnosis, Hughes proposes a two-step test. A court must determine (1) how extensive a witness' pre-hypnotic recollections actually are and (2) whether the witness' pre-hypnosis memories have been impermissibly tainted by the hypnotic process. Id. at 496. This second step should be evaluated with the help of scientific experts, who are in the best position to determine whether a witness' recollections have been polluted. Id.

Before the second trial, petitioner moved for just such a Hughes hearing which was intended to result in findings on both prongs of the Hughes test. After the twelve-day hearing, referred to above, the trial court concluded that Lett would be permitted to testify about his pre- hypnotic recollections. Although Lett's pre-hypnotic recall could have been tainted by a hypnotic process that violated the Hurd guidelines, a more significant danger emerged in the sheer number of times Lett had been asked to recount the events of January 2. By all expert accounts, repetition will "likely lead to new facts being remembered, some accurate and some not; the repeating of one's recollection will reinforce details." Dreher II at 492. Unfortunately, there can be no question that Lett was called upon to repeat his recollections dozens of times. The risk of inexact testimony would remain whether or not Lett had undergone hypnosis. Because petitioner had the opportunity to explain the documented effects of repetition on a witness' ability to accurately recall an event, the trial court permitted the jury to assign whatever value it chose to Lett's account of January 2.

During the hearing conducted before the start of his second trial, petitioner introduced exhaustive evidence designed to question the admissibility of Lett's pre-hypnotic recollections. Petitioner was able to present scientific evidence concerning the effect on memory of both repetition and hypnosis. He was also permitted to introduce the fact of Lett's continued struggle with alcoholism and to re-visit the flawed hypnotic procedure fully explored in the earlier Hurd hearing. After this comprehensive display and with full knowledge of the risks involved, the trial judge allowed Lett to testify about the events he was able to recall before hypnosis. This evidential ruling had no constitutional implications.

H. Admission of Testimony Regarding "Street Information":

The prosecution contended that petitioner had murdered his wife and had contrived to make it appear that the crime had been committed during a burglary. Chief Thomas Ramsey, the ranking Chatham Township officer in the investigation, testified that the police received no "street information" on the alleged burglary of the Dreher house. He defined "street information" as information from informants from criminal elements, from other law-enforcement agencies, from citizen-informants and from miscellaneous sources such as pawnbrokers. When Chief Ramsey was asked if the police ordinarily receive "street information" on burglaries, the trial judge refused to permit him to answer. From the fact that there was no street information available to support the burglary it was to be inferred that the burglary had been staged as part of petitioner's murder strategy.

"Street information" can only be characterized as rank hearsay. The Appellate Division rejected petitioner's claim that admission of the testimony violated petitioner's confrontational rights and, in any event, applying New Jersey's plain error standard, which is more strict than the federal standard, found that any error was harmless. State v. Dreher, 302 N.J. Super. at 497. Assuming that Chief Ramsey's hearsay testimony violated petitioner's constitutional right to confront the witnesses against him, U.S. Constit. Amend. VI; Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), his due process right to a fair trial will not have been violated if this was harmless error, as the Appellate Division concluded. The federal standard for determining harmless error is set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993); Hassine v. Zimmerman, 160 F3d 941 (3d Cir. 1998).

As stated in Hassine:

Under Brecht and its progeny, a constitutional trial error is not harmless if the court is in "grave doubt" as to whether the error had a substantial and injurious effect or influence in determining the jury's verdict. O'Neil v. McAnninch, 513 U.S. 432, 436 (1995). "Grave doubt" exists when, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id. at 435. Moreover, it is "inappropriate to ask whether there was sufficient evidence to support the result, apart from the phase of the trial affected by the error. The correct inquiry is whether the error had a substantial influence on the verdict despite sufficient evidence to support the result apart from the error." Yohn, 76 F.3d at 523 (citations omitted). Id. at p 955.

In the context of the trial of this case Chief Ramsey's isolated statements that the police had no street information on a burglary at the Dreher residence could not have had a substantial influence on the verdict despite sufficient evidence to support the conviction apart from this improper testimony. There was only fleeting reference to street information during the course of a lengthy trial, and the inference to be drawn from that reference cannot have prejudiced petitioner because he agreed that the burglary was faked. The petitioner's theory of the case as well as the State's postulated a fake burglary. Petitioner contended that Seifrit, not he, faked the burglary.

There were many witnesses called in this case - law enforcement officers, experts and lay witnesses. If believed, Seifrit's testimony was devastating in its effect and, of course, Lett provided significant confirmation. The mere admission of the "street information" testimony does not leave one in "grave doubt" as to whether the error had substantial and injurious effect or influence in determining the jury's verdict. This error does not provide the basis for a constitutional challenge to the verdict.

I. Extraneous Influence on the Jury:

Petitioner contends that the state courts ignored "the very real possibility" of extraneous influences on the jury or premature deliberations and failed to conduct adequate inquiry into the issue. These concerns arose in the first instance from an anonymous letter received by the trial judge after the defense rested but before summations. On May 3, 1995, the trial judge received an unsigned, typewritten letter stating: Judge Smith, I have been in the presence of and overheard the blond woman juror who sits in the back row on the end of the jury box. She has referred to information about the Dreyer [sic] case that has not been introduced in the courtroom.

The trial judge conducted an in camera interview of the blond woman juror, Juror 16, outside the presence of the attorneys. Juror 16 told the judge that the letter might have been written by her co-workers, who were angry about her absence from work. Several of her co-workers had tried to talk to her about the case, and she relayed some specific comments that had been made to her, such as "hang him." Another co- worker had asked her "I don't know why it's taking you so long, he was found guilty once, what's the problem?" Juror 16 stated that she did not know if this information was true or false. Juror 16 assured Judge Smith that she had not shared this information with the other jurors and assured the judge that she could make her decision solely on the basis of the evidence presented in the courtroom. In addition she advised the court that, "Bob (Bob Whalens, a court aide) . . . said to one or more jurors that a juror was talking to John Dreher." The court directed Juror 16 to go back with the other jurors and instructed her not to discuss the in camera proceeding with them.

Petitioner argues that the court employee to whom he spoke may have created a false impression that petitioner was trying to influence the jury. After consulting with the attorneys and at the defense's request, the trial court decided to dismiss Juror 16. When the trial court reported on his first in camera interview with Juror 16, he told them simply that co-workers had informed the juror about petitioner's prior conviction for the murder of his wife. He did not inform counsel of the juror's statement about the court aide.

The trial judge spoke again to Juror 16 in chambers without counsel present. The juror resisted being removed from the jury, emphasizing how conscientious she was and what an outstanding career she had. She stated that she had been

a good conscientious juror who reminded others when sometimes people got sloppy about things or remembering things to keep us in shape because the last thing we would want on this kind of a thing was a mistrial.

The court did not pursue these comments further with Juror 16 or advise the attorneys of them. Instead the court directed the attorneys to proceed with their closing arguments.

After the verdict, the record of the in camera interview was unsealed. Upon reading the transcript, petitioner moved for a new trial on the ground of juror misconduct, and in the alternative moved for leave to interview all the jurors about outside influences. The court denied petitioner's motion, finding that "there was no hint of misconduct or any reference to the prior verdict." Dreher II at 500. The Appellate Division agreed with this finding.

A trial judge has the primary responsibility of protecting the right of an accused to a trial by an impartial jury. Nebraska Press Association v. Stuart, 427 U.S. 539, 555 (1976). It is a federal due process concern that a jury's verdict be based on the legal evidence before it and free from taint of prejudicial extraneous considerations and influences. Remmer v. United States, 347 U.S. 227 (1954).

On the other hand, "due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable." Smith v. Phillips, 455 U.S. 209, 217 (1982). The Supreme Court observed in Phillips that:

it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury willing to decide the case solely before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. 455 U.S. at 217.

The case presents the question whether the trial court took appropriate steps to determine the effect of possible outside influences on the jurors.

[I]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court... with full knowledge of the parties. United States v. Console, 13 F.3d 614, 666 (3d Cir. 1993), quoting Remmer v. United States, 350 U.S. 377, 379 (1956). *fn7

Where there are direct, third-party communications with a juror regarding the matter pending before the jury, the presumption of prejudice arises. Console, 13 F.3d at 666.

"[A]llegations of juror exposure to prejudicial extra-record information do not," however, "automatically require the court to conduct an evidentiary hearing." Console at 666-67. The trial judge is vested with the discretion both to determine how to deal with allegations of jury misconduct and to determine whether prejudice has been demonstrated. Id. at 667, quoting United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993); see also Government of the V.I. v. Dowling, 814 F.2d 134, 137 (3d Cir. 1987) (stating that "the trial judge develops a relationship with the jury during the course of a trial that places him or her in a far better position than an appellate court to measure what a given situation requires... we accord great deference to the trial judge's wide discretion in using voir dire to determine the presence or absence of prejudice"). In Console, the Third Circuit expressly approved of the use of in camera interviews to determine juror prejudice, stating that "[t]his method of inquiry is the one we have preferred `[w]here there is a significant possibility that a juror or potential juror has been exposed to prejudicial extra-record information.'" Id., quoting Dowling, 814 F.2d at 137.

Although his questioning of Juror 16 might have been more searching, the trial judge followed this practice. The statements made by Juror 16 during her in camera interview, however, in conjunction with the anonymous letter stating that she had referred to extra-judicial information, were sufficient to raise questions about whether the other jurors were exposed to prejudicial information. The anonymous letter did not disclose if Juror 16 made the statements in the presence of other jurors. While the trial judge was persuaded that "there was no hint of misconduct or any reference to the prior verdict," none of the other jurors were questioned regarding the existence of extra-judicial contacts, let alone the existence of prejudice. This raises substantial questions. "A trial judge does not possess talismanic powers. In the absence of any effort to evaluate the impact premature deliberations may have had on the jurors, the judge can only guess as to the existence or non-existence of prejudice." United States v. Resko, 3 F.3d 684, 694 (3d Cir. 1993).

The Appellate Division may have "lost sight of the prejudice inquiry out of deference to the superior ability of the trial judge to assess the prejudicial impact." Resko, 3 F.3d at 694. The Appellate Division's conclusion that there was "no evidence whatsoever that the jury was subject to any irregular influences" overlooks the existence of the anonymous letter. Furthermore, the lack of evidence regarding possible jury taint may be the result of the trial court's decision not to interview the other jurors. "[I]n the absence of any record, the reviewing court is similarly left to speculate" on whether there should have been a new trial. Id.

This case can be distinguished from those in which the trial court took an aggressive role in determining whether a jury had been compromised. While the trial judge's proximity to the events at trial ordinarily places him in a superior position to make these determinations, "[i]n the instant case, the superior position of the trial judge was of little or no consequence because the [trial] judge did not utilize it in order to ascertain whether the defendants had been prejudiced due to the jury misconduct." Id. at 694. Compare United States v. Console, 13 F.3d 641 (3d Cir. 1993) (finding no violation of due process where court made a thorough inquiry into allegations of juror taint by interviewing each juror individually in camera), with Waldorf v. Shuta, 3 F.3d 705, 712 (3d Cir. 1993) (requiring new trial where court failed to ask voir dire questions designed to provide an objective basis for the court's evaluation and failed to voir dire three of eight jurors individually).

Both the trial court and the Appellate Division found as a factual matter that there had been no jury taint other than the co-workers' disclosure to Juror 16 of the existence of the first trial, a revelation that Juror 16 did not disclose to the other jurors. Referring to Juror 16's comment about remembering things when ruling on petitioner's motion relative to the issue of jury taint the trial court stated:

There is no hint of any misconduct. There is no hint of any information suggested by the defense that it may be a remembrance of some prior verdict in a case. That simply is not in here at all. And isn't in the context of why the juror made the statement . . . I think it's absolutely clear that this juror said I got certain information given to me not at my request. I did not share that information with any members of the jury . . . And no reasonable inference from the statements of this juror would rise to any cause at all for the Court to grant such relief. (6/15/95 T23:2-17).

Referring to the alleged taint imputed to the actions of the court aide, the trial court stated:

[T]o suggest there is the possibility that the court aide might have told jurors that - not to speak to witnesses or people involved in the case simply goes beyond the realm of reality when we talk about what effect that might have had on [the] jury's conscientious consideration of this case or any prejudice to the defendant. It simply does not exist. There is no basis for it. There are no inferences that can be drawn - this allegation that merit any further consideration. And certainly not any hearings. (6/15/95 T21:1-10).

The court specifically noted that:

[D]uring the course of this trial that Mr. Dreher took every opportunity that he could speak to anyone involved with this case, whether that be attorneys, witnesses, court aides, the judge or anyone else in a pleasant way, passing the time of day. That simply seemed to be his mannerism or his way of dealing with things. (6/16/95 T20:20-25).

The Appellate Division sustained these findings. It agreed with the finding that "there was no hint of misconduct or any reference to the prior verdict."Dreher II, 302 N.J. Super. at 498, 500. It found that "[t]he sole juror who might have learned of the prior verdict was removed, and there was no hint that any other juror had similar knowledge." Id. at 501.

As to the petitioner's claim regarding actions of the court aide, the Appellate Division, like the trial court, found no merit, rejecting petitioner's contention that the court aide's statement had either the purpose or effect of turning the jury against him and stating:

If defendant was trying to demonstrate to the jury that he was a decent human being, without taking the stand to testify, then, as the State points out, defendant has no one but himself to blame for this "irregular intrusion" into the jury's deliberations. State v. Dreher, 302 N.J. Super. at 502. (6/16/95 T21:1-10).

Thus the trial court and the Appellate Division made factual findings that cannot be characterized as unreasonable. The failure of the trial court to make more extensive inquiry of Juror 16 or to interrogate each individual juror, while troublesome and perhaps falling short of the best practices in such a situation, cannot be held to be contrary to clearly established law as determined by the Supreme Court of the United States or based on an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.

J. Testimony about Petitioner's Pre-Arrest Silence: Petitioner asserts that the State repeatedly elicited testimony concerning petitioner's silence prior to arrest during the course of his second criminal trial. In addition to allowing this testimony over objection, petitioner assigns error to the "extensive use" of this evidence in summation. However, petitioner has chosen not to elaborate on this ground in his brief in support of the petition, nor have respondents briefed the issue.

The testimony elicited was to the effect that "during the early stages of the investigation, defendant never asked about the status of the investigation, the cause of his wife's death, or whether the police had any suspects." Dreher II, 302 N.J.Super. at 470. During summation, the prosecutor commented that:

No time during the investigation did John Dreher ever ask what happened to his wife of 15 years. Never asked if did she suffered, never ask if she was raped. Never asked if she was tortured. He didn't have to, he knew, he had inside information. He was the ultimate insider, he knew what happened to his wife, he knew she had suffered, he knew she had been strangled, he knew she had been stabbed. He didn't ask any questions about his wife because he didn't have to. He already had all the answers. Id. at 471.

On this issue, the Appellate Division concluded that "the admission of evidence about [petitioner's] pre-arrest silence as substantive evidence of guilt did not violate any constitutional right and was not error. Further, even if the inclusion of this evidence was error, it was harmless beyond a reasonable doubt." Dreher II at 470. The Appellate Division remarked that this issue "has not been considered by our Supreme Court or the Supreme Court of the United States." Although that court noted that "[a]nother panel of this court has previously held that evidence of pre-arrest silence is not admissible as substantive evidence of guilt," it came to the contrary conclusion. Id.

The Appellate Division recognized that certain questions regarding the use of a criminal defendant's silence have already been answered. The Fifth Amendment right against self-incrimination precludes a prosecutor from commenting on a defendant's decision not to testify at trial and from using that silence as an admission of guilt. Griffin v. California, 380 U.S. 609, 615 (1965). In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court held that post-arrest silence cannot be used to impeach a defendant who chooses to take the stand because the Miranda warnings "inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him." On the other hand, it has been held that use of pre-arrest silence to impeach a defendant who testifies does not violate either the Fifth Amendment prohibition against self-incrimination or the Fourteenth Amendment guarantee of due process. Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980).

The question of whether pre-arrest silence may be used as substantive evidence of guilt when a defendant chooses not to testify, however, has remained an open issue. The Supreme Court expressly refrained from deciding the issue in Jenkins, 447 U.S. 231 at n.2, and the Courts of Appeals are split on the issue. See United States v. Oplinger, 150 F.3d 1061, 1067 (9th Cir. 1998) ("we respectfully disagree with the First, Seventh, and Tenth Circuits, which have all held that pre-arrest silence comes within the proscription against communicating on a defendant's privilege against self-incrimination as laid down in Griffin v. California").

It is clear that the Appellate Division's determination could not have been "contrary to clearly established federal law, as determined by the Supreme Court of the United States," since there is no Supreme Court case directly on point regarding the admissibility of pre-arrest silence as substantive evidence. In considering whether a state court decision presents "an unreasonable application" of federal law, however, the Third Circuit has emphasized that:

it is not necessary for the petitioner to cite factually identical Supreme Court precedent. Rather, the critical question is `whether a Supreme Court rule - by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations- can fairly be said to require a particular result in a particular case.' Matteo, 171 F.3d at 888-89, quoting O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998).

The limited probative value of an accused's silence has been addressed by the high court. In United States v. Hale, 422 U.S. 171, 176 (1975), the Court noted that:

[i]n most circumstances silence is so ambiguous that it is of little probative force... Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. 422 U.S. at 176.

Prior to petitioner's arrest, there were no accusations. No questions were asked of Dreher, the police gave no indication that he was being considered as a suspect, and there was accordingly no reason for him to confirm or deny accusations which had not been made. Thus, there is little reason to assign probative value to petitioner's pre-arrest silence as affirmative evidence of his guilt.

The admission of such testimony, coupled with a prosecutor's arguments about its supposed significance, however, may be highly prejudicial to the accused. See N.J.R.E. 403 ("relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice...").

In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court examined the question of whether a criminal defendant's post-arrest silence could be used to impeach his credibility. The Court determined that such use would violate the Due Process Clause of the Fourteenth Amendment, in part because "silence in the wake of those warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post- arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." Id. at 617, 619. Later cases have analyzed Doyle as drawing a distinction based on the post-Miranda nature of post-arrest silence. See, e.g., Jenkins, 447 U.S. at 241 (Stevens, J., concurring) ("the privilege against compulsory self- incrimination is irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak); Oplinger, 150 F.3d at 1066-67 (citing Justice Stevens' concurrence in Jenkins and concluding that no constitutional rights are violated by the admission of the silence of a person, not in custody or under indictment, in the face of accusations of criminal behavior). The Doyle Court itself, however, did not see the pre-Miranda/post-Miranda distinction as controlling. 426 U.S. 610 at 617, n.8 ("in United States v. Hale, 422 U.S. 171, 177 (1975), we noted that silence at the time of arrest may be inherently ambiguous even apart from the effect of Miranda warnings, for in a given case there may be several explanations for the silence that are consistent with the existence of an exculpatory explanation"). "While the presence of Miranda warnings might provide an additional reason for disallowing use of the defendant's silence as evidence of guilt, they are not a necessary condition to such a prohibition." United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir. 1987). Moreover, it is clearly established that the right to remain silent is not limited to situations where a person has been taken into custody or stands accused at trial, but extends to any proceeding, investigatory or adjudicatory, where a person's statements could cause him to incriminate himself. Kastigar v. United States, 406 U.S. 441, 444 (1972).

Those Courts of Appeals that have imposed restrictions on the substantive use of pre-arrest silence have found them compelled by the Supreme Court's decision in Griffin v. California, 380 U.S. 609 (1965), which held that prosecutors and judges may not comment on a defendant's refusal to testify because the inference of guilt drawn from such comments imposes a penalty for exercising the constitutional privilege against self-incrimination. See Savory, 832 F.2d at 1017 (stating that Griffin "applies equally to a defendant's silence before trial, and indeed, even before arrest"); United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991) ("once a person invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which the defendant exercised"); Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir. 1989). The Fifth Amendment guarantees "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty... for such silence." Malloy v. Hogan, 378 U.S. 1, 8 (1964).

At least one court has also condemned the use of pre-arrest silence as tantamount to an involuntary confession, inadmissible under due process principles defined in Rogers v. Richmond, 365 U.S. 534 (1961):

First, the tacit admission is involuntary per se. It springs not from the exercise of a free will, but from a legal fiction: the supposedly valid hypothesis that failure to deny an accusation of guilt constitutes an affirmative admission of culpability, proof of which may be received into evidence under the exception to the hearsay rule for admissions... due process cannot in any case condone the use of evidence which is elicited from a defendant without the concurrence of his conscious, free, unfettered will, whatever its otherwise probative value. Smith v. Brierly, 267 F.Supp. 274, 281-82 (E.D.Pa. 1967).

Indeed, the American system of criminal prosecution requires the federal and state governments "to establish guilt by evidence independently and freely secured, and may not... prove a charge against an accused out of his own mouth." Malloy, 378 U.S. at 8.

Thus, although the Supreme Court has never directly addressed the question of whether pre-arrest silence can be used as substantive evidence of an accused's guilt, the constitutional principles set forth in the Supreme Court cases must guide this analysis. First, the limited probative value of pre-arrest silence is grossly outweighed by its prejudicial effect, making its use fundamentally unfair. Second, the use of pre-arrest silence violates the constitutional principle that guilt must be established by independent evidence, and not by tacit admissions elicited from the accused against his will. Third, allowing a prosecutor to comment on an accused's pre-arrest silence wrongly imposes a penalty upon the accused for exercising his constitutional right to remain silent.

Nevertheless, it is doubtful that the exclusion of this evidence would have changed the outcome of petitioner's trial. Certainly, the prosecution erred when it emphasized the fact that petitioner failed to inquire about the condition of his wife. However, no such error can be assigned to other instances in which the prosecution introduced evidence concerning petitioner's pre-arrest behavior. For example, the prosecution suggested that petitioner's behavior when reviewing the inventory of items stolen from his home indicated that the burglary had been staged. This conclusion was integral in furthering the prosecution's contention that the burglary and murder had been perpetrated by someone close to the family. More importantly, this piece of evidence has nothing to do with petitioner's choice to remain silent. Rather, this evidence reflects observations made by police officers about a potential defendant - all of which can be fairly introduced for jury consideration.

Petitioner also characterizes the prosecution's use of his pre- arrest silence in its summation as "extensive". However, a review of the record discloses that discussion of petitioner's pre-arrest silence made up, on balance, only a very small portion of the prosecution's summation. Although the prosecution should have refrained from comment on some instances of petitioner's pre-arrest silence during trial, it cannot be said that the inclusion of these comments unfairly prejudiced petitioner's right to a fair trial. Having heard extensive testimony from both the prosecution and the petitioner during this trial, the jury was in the best position to determine the validity of the evidence presented to them. Because the jury's decision would be unlikely to change even without the prosecution's erroneous inclusions, I conclude that the use of petitioner's pre-arrest silence was also harmless error.

K. Destruction of Rough Interview Notes:

Petitioner asserts that at some time after February, 1986, the Morris County Prosecutor's Office instructed the Chatham Township Police Department to destroy handwritten interview notes taken by police officers during the January, 1986, investigation of Gail Dreher's murder. The handwritten notes, which included the officers' accounts of statements made by petitioner and other witnesses, were incorporated into later typewritten reports.

The factual background surrounding this claim was developed during an eleven-day hearing on petitioner's pre-trial motion to suppress the testimony of Austin Lett. During the course of that hearing, the trial court heard testimony from Chatham Township's Chief of Police, Thomas Ramsey, regarding the policies and practices of the Chatham Township Police Department ("CTPD") with respect to the preservation of investigators' notes. The CTPD's internal manual contained a directive stating that "notes should be retained until final disposition and/or appeal of the case." At the hearing Chief Ramsey testified that he did not interpret this directive as requiring the retention of rough notes. Transcript of Dec. 13, 1993, at 138.

Although CTPD officers had initially retained their rough notes of the Dreher investigation, see Trial Transcript of Apr. 6, 1995 at 90-91, Chief Ramsey stated that "working with the Morris County Prosecutor's Office, we made a decision [in this case] that the rough notes were not going to be kept, the handwritten notes." Id. He stated that similar decisions had been made in other investigations. Id.

Chief Ramsey testified that handwritten notes were given to secretaries for typing, and that officers were instructed to review their notes and compare them with the typewritten reports for accuracy. Id. at 138-89.

The officers were then told to dispose of the rough notes. Id. Chief Ramsey stated that he personally reviewed all of the officers' notes and the typewritten reports, id. at 141, although at trial he admitted that he had reviewed only "some" of the notes. Trial Transcript of April 6, 1995 at 89. On at least one occasion, Chief Ramsey stated that he had made edits to the officers' rough drafts. Transcript of December 13, 1993 at 145.

The trial court also heard testimony from Detective Richard Longo of the Morris County Prosecutor's Office ("MCPO") regarding that office's policy regarding rough notes. Detective Longo testified that the practice of the MCPO was to destroy rough notes after they were transformed into a final report. Transcript of Dec. 14, 1993 at 153, 160. This practice was said to be "common knowledge," one that "most good detectives follow and do." Id. at 160. Detective Longo also acknowledged the existence of a policies and procedure memorandum issued by then-Morris County Prosecutor Lee S. Trumbull in May, 1997. Id. at 166-67. The memorandum, which was issued near the time of petitioner's initial indictment and amid a flurry of local newspaper coverage of Gail Dreher's death, stated that handwritten notes could be destroyed once a final report had been drafted and that "[a]ll handwritten notes pertaining to any investigation conducted by this office and retained by members are discoverable and will be furnished to the defense attorney." Id. at 168. See also Dreher II at 485.

At the conclusion of the hearing, the trial judge concluded that the CTPD's destruction of its handwritten notes was designed to reduce paperwork, avoid confusion, and enhance legibility, and that there was no need to preserve the handwritten notes as long as the information contained therein was accurately reflected in the later document. The trial judge ruled that the defense could address the destruction of the notes during cross-examination of the police witnesses but refused to preclude their testimony. This ruling was endorsed by the Appellate Division upon review. See Dreher II at 482.

During Chief Ramsey's cross-examination at trial, additional testimony regarding the destruction of the rough notes emerged. He stated that he had directed the destruction of rough interview notes in this case, but conceded that the idea had initiated with the MCPO and not the CTPD. Trial Transcript of April 6, 1995 at 88, 103. He denied, however, that he issued his directive at the request of the MCPO. Id. at 104.

Prosecutors have a constitutionally-based duty to disclose evidence favorable to an accused, even when no requests for the evidence are made. See Arizona v. Youngblood, 488 U.S. 51, 55 (1988), citing Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976). "[S]upression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. At the outset, it should be stressed that the willful destruction of rough interview notes presents "a problem which no court, trial or appellate, should have to face in this circuit." United States v. Ramos, 27 F.3d 65, 66 (3d Cir. 1994).

Since 1977, the Third Circuit Court of Appeals has unequivocally required federal law enforcement officials to preserve rough notes of interviews with prospective trial witnesses. Id. While this rule has not been imposed on state law enforcement officers, see Commonwealth v. Pickering, 533 A.2d 735, 736 (Pa.Super. 1987) (refusing to adopt Third Circuit rule requiring preservation of interview notes), "[i]t seems too plain for argument that rough notes from any witness interview could prove to be Brady material." Ramos, 27 F.3d at 70, quoting United States v. Harrison, 524 F.2d 421, 427 (D.C. Cir. 1975).

In general, rough interview notes should be kept and produced so that the trial court can determine whether the notes should be made available to the defendant. Ramos, 27 F.3d at 68. "Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed." California v. Trombetta, 467 U.S. 479, 486 (1984). Even where the notes have been incorporated into a later report, the originals should be preserved because they could contain substantive information or leads, or could be useful in cross- examination. Ramos at 70. The possible importance of rough notes for these purposes is not diminished where a formal report is made. The report could contain errors in transcription and might also be influenced by the police officer's impressions and determinations of what is important. Id. The information contained in the rough notes might be more credible and more favorable to the defendant's position. Id.

For all these reasons, a general rule that rough notes should be preserved has been recognized by New Jersey's Supreme Court, as well as in other jurisdictions. See New Jersey v. Hunt, 25 N.J. 514, 525 (1958) ("where it appears that a State's witness has made prior notes or statements relating to the subject matter of the direct testimony which he has given, the defense is entitled to inspect and use on cross- examination the prior notes or statements if they are or can be made available"); New York v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881, 882-84 (N.Y. 1961) (holding that "when it appears that a witness for the prosecution has made a statement to police, district attorney or grand jury" the defendant "is entitled to see and use the entire statement. Otherwise, there is always a danger that something will be withheld from defense counsel which may assist him in impeaching the prosecution's witness").

While the practice of regularly destroying interview notes for good reason is generally disfavored, resolution of this issue in the instant case is ultimately dictated by the Supreme Court's decision in Youngblood v. Arizona, 488 U.S. 51 (1988). In Youngblood, the Supreme Court distinguished the suppression or destruction of Brady material from "the failure of the State to preserve evidentiary material of which no more can be said than that it... might have exonerated the defendant." 488 U.S. at 57. As to Brady material, the good or bad faith of the State remains irrelevant; as to Youngblood material, however, a finding of bad faith is of paramount concern. See id. The Supreme Court expressed its unwillingness to impose "an absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution," and as a result held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id.; see also United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993) ("a defendant who claims destroyed evidence might have proved exculpatory... has to show the prosecution's bad faith in ordering or permitting its destruction"). In addition to establishing the prosecution's bad faith, the Third Circuit Court of Appeals has required a petitioner to raise "at least a colorable claim" that discarded rough notes contained evidence favorable to him and material to his claim of innocence, and that such exculpatory evidence has not been included in any formal interview report provided to defendant. Ramos, 27 F.3d at 65. "[T]he mere possibility that the destroyed notes might have included Brady material, without more, is insufficient... ." Id.

Consistent with these principles, unless there is evidence that the destruction of the rough notes in this case was undertaken in bad faith, and that the evidence destroyed was favorable to the petitioner, failure to preserve the notes will not constitute a denial of due process. Youngblood, 488 U.S. at 58. The question of bad faith presents a factual issue, of course, one which was determined by the trial court and later endorsed by the Appellate Division. Dreher II at 484 ("the judge concluded that the destruction of the notes had not been done in bad faith and that the officers had a legitimate recordkeeping reason for destroying redundant paperwork that took up space and was often illegible"). On a petition for a writ of habeas corpus, this factual determination cannot be disturbed except on the rare occasion where it is unreasonable in light of the evidence presented in the State court proceeding. 28 U.S.C. 2254(d)(2). It can be argued with considerable persuasiveness that this case presents one of those rare occasions.

In approving the trial court's ruling, the Appellate Division refused to infer bad faith, noting that although the New Jersey Supreme Court's decision in Hunt requires the prosecution to produce prior notes or statements relating to the subject matter of a witness' direct testimony, nothing in that decision imposes a duty to preserve such notes. "[Petitioner] cannot presume from the State's practice of destroying handwritten notes after formal reports have been prepared that exculpatory evidence is deliberately and in bad faith being destroyed." Dreher II, 302 N.J.Super. at 485. There is much evidence that weighs against the Appellate Division's observation in this case.

It is true that there is ordinarily no absolute duty to preserve an officer's rough notes, especially where handwritten notes were destroyed in good faith as part of a regular departmental practice before their potential value became apparent. See United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993) ("destruction of evidence in accordance with an established procedure precludes a finding of bad faith absent other compelling evidence... While a showing that the government did not follow standard procedure could provide some evidence of bad faith, we have not held that an improper procedure in and of itself implies bad faith"). The evidence in this case shows that destruction of rough notes had not been the CTPD's regular practice, but rather a departure from it, and a departure performed only at the suggestion of the MCPO. Because the memorandum does not specifically refer to the Dreher case, one might conclude that the document was intended only to memorialize a change in police protocol. Yet the timing of this memorandum makes such an innocent reading unlikely. A cursory review of local newspapers reveals that Gail Dreher's murder and petitioner's subsequent convictions were profiled extensively and with great interest. It might be inferred that this memorandum, issued just before petitioner's indictment, was at least implicitly motivated by petitioner's case.

The CTPD's internal police operating manual clearly stated that notes "should be retained until final disposition and/or appeal of the case." While Chief Ramsey testified that he did not consider this directive mandatory, his testimony and the directive itself make clear that the CTPD's regular practice was for officers to retain rough notes unless otherwise directed. This is not a situation like Youngblood, where the State, in good faith, merely failed to preserve evidence. Nor is this a case where evidence was destroyed pursuant to a regular, standardized practice. See, e.g., Griffin v. Spratt, 969 F.2d 16, 21 (3d Cir. 1992) (no finding of bad faith for failure to preserve alcoholic beverages allegedly found in prisoner's cell, where uncontradicted evidence indicated that it was standard procedure to discard all such beverages and there was a seemingly legitimate justification for this policy); United States v. Boyd, 961 F.2d 434, 437 (3d Cir. 1992) (no finding of bad faith where urine sample was destroyed pursuant to a standard procedure). Moreover, this departure from regular practice was taken with full appreciation of the potential value of rough notes and the legal obligation to provide them to the defense when available prior to their destruction, as evidenced by the MCPO's memorandum and the testimony developed during the pre-trial suppression hearing and at trial. It is unnecessary, however, to decide whether the trial court's and the Appellate Division's finding was so unreasonable as to permit this court to substitute its finding for theirs.

There remains the question whether petitioner has raised a colorable claim that the handwritten notes contained evidence favorable to him and material to his claim of innocence, and that such exculpatory evidence has not been included in any formal interview report provided to defendant. Ramos, 27 F.3d at 65. Petitioner has failed to make this showing. It is true that the information contained in these destroyed notes can never be recovered or reproduced in a satisfactory manner.

Nevertheless, petitioner has not been able to produce a scintilla of evidence to suggest that the contents of the destroyed notes could have provided him with additional assistance. Mere speculation is simply not enough. In fact, there was only one identifiable instance of evidence gleaned from police interviews that was not contained in the formal report. There, a detective neglected to include the fact that Nathan Seifrit had left his job at Six Flags Great Adventure in part because of a report that he had been "fondling" a rhinoceros. I agree with both the trial court and the Appellate Division that the detective did not err by failing to include this fact, which could only have given rise to "the rankest kind of speculation", in his final report, . Dreher II, 302 N.J. Super. at 502. Petitioner has not come forward with any other colorable claims of favorable missing evidence. For that reason, I find that the destruction of field notes did not rise to constitutional error.

L. Cumulative Effect:

Reviewing the foregoing analysis of each of petitioner's grounds for relief, it will be noted that many of these grounds fail to raise errors of constitutional dimensions. However, some claims that were found not to allege constitutional violations presented close questions and some claims that were found to advance constitutional violations were found to be harmless error. The claims in one of the other of these categories are i) the admission of Dr. Tucker's "junk science" testimony, ii) use of petitioner's pre-arrest silence as substantive evidence of guilt, iii) the deliberate destruction of the rough notes of interviews, iv) the refusal to admit the testimony FBI expert Shaneyfelt during the hearing on the fabrication or destruction of the notes of the Lett interview, v) the introduction of testimony regarding the absence of "street information", and vi) the adequacy of the exploration of the question of jury contamination.

As noted earlier in this opinion, at some point an accumulation of errors, which taken individually are constitutionally insignificant or harmless, may in the aggregate "so infect a trial" so as to result in a deprivation of due process. Taylor v. Kentucky, 436 U.S. 478 (1978); Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988). I conclude that with the exception of the destruction of interview notes and the refusal to permit Shaneyfelt to testify, the various matters were isolated, not having any particular relationship to each other. The destruction of the interview notes and Shaneyfelt's proposed testimony both related to the question of forgery or destruction of Lett interview notes that petitioner contends show that Lett gave a different version of his observations on January 2 or other occasions from that contained in his testimony. The combined effect of these two circumstances has already been found not to rise to constitutional dimensions. Thus I conclude that considered in their totality, petitioner's claims do not call for issuance of the writ of habeas corpus. The questions are sufficiently close, however, that a certificate of appealability will issue.

CONCLUSION

For the reasons set forth above petitioner's petition for a writ of habeas corpus will be dismissed.

A certificate of appealability will issue.

DICKINSON R. DEBEVOISE U.S.S.D.J.


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