On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 91-03-0134.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Decided December 27, 2005
Resubmitted February 1, 2006
Before Judges Stern, Parker and Lihotz.
Defendant appeals from a post-conviction order denying his application "for post-conviction DNA testing." Defendant is serving a sentence of life imprisonment, with thirty years parole ineligibility, for murder and a merged weapons offense, following his conviction for the 1990 murder of his girlfriend, Karen DeStefanis. On this appeal, defendant argues that "the trial court erred when it concluded that Mr. DeMarco had not met the threshold requirements for DNA testing pursuant to N.J.S.A. 2A:84A-32a."
The post-conviction court originally concluded that defendant failed to show that "the evidence to be tested is available [and] in a condition that would permit the requested DNA testing" because the multiple prior DNA testing had depleted the evidence. The judge also concluded that the chain of custody was lacking and that, in any event, proof that the DNA was not defendant's would not give rise to a new trial, because evidence on that subject had already been presented to the jury, which nonetheless found defendant guilty.
However, defendant claims that there is remaining semen evidence, as well as hair and fiber evidence that previously was not tested, and he contends that if new testing uncovered "proof that the semen recovered from the victim's body belonged not to John DeMarco, but to a known sex offender," he would be "entitle[d] . . . to a new trial based on newly discovered evidence." Stated differently, defendant asserts that if he can identify the person whose samples remained on the body of the victim or at the scene of the crime, further investigation might reveal a motive or reason for the killing by that individual and warrant a new trial. In essence, defendant contends that additional DNA testing based on technological improvements in the scientific community will identify the person he believes to be responsible for the crime, and that he has a right to develop his claim under N.J.S.A. 2A:84A-32a. He further asserts that such identification would not have been possible through existing DNA testing techniques at the time of his 1994 trial.*fn1
Because it was not clear from the record whether any biological sample still existed eleven years after the conviction, and whether the samples were in a form that would permit further DNA testing, we remanded for further findings and conclusions on the post-conviction application.
Upon receipt of the January 17, 2006 certification of Somerset County Assistant Prosecutor James L. McConnell, and after conducting a hearing on the subject of our remand, the trial court filed "supplemental findings," detailed as follows:
1.) It is apparent that virtually all of the evidence in this case has been retained by the State. This includes numerous boxes containing various items of physical evidence, photographs and charts.
2.) Part of this evidence includes a box which contains certain biological samples. Among these samples is a vial entered into evidence by the Defendant under the designation D-14. This vial contains the upper portion of an oral swab from the victim's autopsy. This is the swab which was the only one previously found to contain any viable DNA samples. This swab was tested four previous times, with the last examination being performed by a defense expert. An attached laboratory report and lab notes reveals that this swab has been almost entirely consumed. There are also two additional vials, one containing the upper portions of an autopsy vaginal swab and the other the upper portion of an autopsy rectal swab. Also inside this box were three vaginal smear microscope slides, three rectal smear microscope slides, and three oral smear microscope slides. A sealed plastic box containing three additional microscope slides was also in the box. The Assistant Prosecutor further believes that there are additional oral, vaginal, and rectal smears. There were also four vials of the victim's blood along with two vials of the Defendant's blood. These vials have not been refrigerated since the end of the Defendant's trial. In fact, the Assistant Prosecutor believes that they were never refrigerated. There were also siX small sealed envelopes which are apparently related to the original DNA examination conducted by the F.B.I. Additionally, there were two sealed plastic bullet boxes containing several small laboratory vials which were obtained from the Defendant's first DNA expert.
3.) Significantly, the box containing the aforementioned biological samples has been in the State's possession since the Defendant was found guilty in June of 1994. Before that time, from the end of the Defendants first trial in April of 1993, until the beginning of his second trial, the box was in the possession of the trial court, defense counsel or defendant's experts.
4.) The Assistant Prosecutor also found in another box of evidence three test tubesized vials, each containing a swab from the victim's autopsy. One is an oral swab, the second a vaginal swab and the third a rectal swab. Additionally, the Assistant Prosecutor found two Petri-type dishes containing filter paper with the Defendant's saliva samples. These vials and Petri-dishes were placed in the box with the other biological samples.
5.) The Assistant Prosecutor further advises that approximately sixty microscope slides containing mounted hairs and fibers were also found. Because the hairs and fibers were mounted for microscope examination, the Assistant Prosecutor is unclear how they could be used in DNA tests.
6.) Finally, several small envelopes containing the victim's head and body hair and Defendant's head and body hair were also found in evidence.
The background with respect to DNA testing in this case is detailed in our 1994 pretrial opinion stemming from the successful appeal of defendant's then-expert, who endeavored to preclude the State's attempt to obtain discovery of the expert's reports concerning tests conducted for other clients:
The victim's nude body was found by a hunter in a remote area of Hillsborough Township in December, 1990. She had been ...