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Dreher v. Pinchak

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 ...


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