State v. Zola

HANDLER, J.,

concurring in part and dissenting in part.

In this case the evidence that the defendant, James Zola, was guilty of the knowing and purposeful murder of Barbara Berrisford was extensive. I concur in the majority’s determination that defendant’s death sentence should be reversed, and that constitutional considerations aside, his conviction for knowing and purposeful murder should be upheld. I write separately, however, to state my disagreement with the Court’s treatment of the expert testimony offered relating to the additional charge of aggravated sexual assault, and to offer some observations concerning the evidence of diminished capacity.

The evidence of aggravated sexual assault was a significant factor in the entire case not only because it supported a serious guilt phase charge, but because it also formed a basis for submitting aggravating factor c(4)(g) to the jury and thus for the imposition of the death penalty. This evidence was inconclusive at best and was buttressed by unreliable and inadmissible expert testimony. Therefore, I would find, contrary to the majority, that the aggravated sexual assault conviction should be reversed and that it cannot be used to support this aggravating factor at the re-sentencing hearing.

I acknowledge that the Court has determined a number of other important issues on this appeal, which do not require a *441 separate response. I emphasize, however, my continuing disagreement with the Court concerning the validity of the capital murder-death penalty statute based on constitutional grounds and principles of fundamental fairness and statutory interpretation. See, e.g., State v. Ramseur, 106 N.J. 123, 343 (1987) (Handler, J., dissenting). These differences cannot be set aside as long as capital-murder jurisprudence remains in flux. See State v. Bey (II), 112 N.J. 123, 189-90 (1988) (Handler, J., dissenting); State v. Koedatich, 112 N.J. 225, 383 (1988) (Handler, J., dissenting).

I.

The review of this appeal as it pertains to the capital murder conviction should be governed by an enhanced standard of review. See State v. Bey (I), 112 N.J. 45, 106-20 (1988) (Handler, J., concurring). Under this enhanced standard, courts engage in a searching review of the trial record, and on finding error, use a different and stricter standard for determining whether an error is reversible. Ibid.

Unlike the conventional “plain error” or “harmless error” analysis, in which the trier of fact looks to whether the error contributed to the verdict or the result reached was unjust, the enhanced standard focuses attention on the jury’s deliberations. The question in a capital murder appeal should be whether the State can prove beyond a reasonable doubt that there was no realistic likelihood that the error had a prejudicial influence or effect on the jury’s deliberations of guilt. Because we are dealing with a capital crime, which more fundamentally addresses through the jury the conscience of the community, it is appropriate to invoke a test that is stricter than one that only asks whether an error contributed to a guilty verdict, or whether the error produced an “unjust result.”

II.

The majority has in detail recounted the grisly facts in this case. James Zola did not testify at his trial. His account of *442 events was relayed, instead, through the testimony of two experts, Dr. Gerald Cooke, a clinical psychologist, and Dr. Robert Sadoff, a psychiatrist. Both testified that the defendant was, in their opinion, incapable of forming a knowing or purposeful state of mind, and therefore could not be found guilty of knowing or purposeful murder. Both diagnoses relied heavily on Mr. Zola’s account of what had occurred. The evidence offered on behalf of this diminished capacity defense was that defendant had a mental disease or defect, that he was suffering from a “paranoid psychosis.”

The Court rejects defendant’s challenge to the constitutionality, both facially and as applied, of N.J.S.A. 2C:4-2, the “diminished capacity” defense provision in the Criminal Code. As this affirmative defense has been explained in State v. Breakiron, 108 N.J. 591 (1987), I agree it is not unconstitutional on its face. I cannot agree, however, that the trial court’s instructions to the jury with respect to its consideration of the evidence of defendant’s mental defects were completely error-free.

As the majority observes, the trial court charged that the State must prove “beyond a reasonable doubt each of the elements of the offense and the defendant’s participation in the offense” before the jury is obliged even to consider “the evidence as to the defendant’s mental disease or defect” as a defense. Ante at 402. This particular instruction is consistent with our ruling in Breakiron . It did not improperly shift the burden of proof with respect to the charge of capital murder.

In connection with the charge of murder the court also instructed the jury that “to establish mental disease or defect as a defense ... the defendant must prove by a preponderance of the evidence that he suffered from a mental disease or defect which negates the state(s) of mind [purposely and knowingly] which are elements of the offenses.” This instruction properly placed the burden of establishing diminished capacity *443 by a preponderance of the evidence on defendant, consistent with our ruling in Breakiron .

After instructing the jury on diminished capacity as an affirmative defense relating to the charge of murder, the trial court charged that if this defense were established, the jury must consider whether the defendant was guilty of aggravated manslaughter or reckless manslaughter. The trial court then instructed the jury with respect to aggravated and reckless manslaughter, stating within this section of the instructions that the evidence of mental disease or defect would not excuse one from criminal liability for such a reckless killing. The trial court did not instruct the jury that this evidence could support a finding of aggravated or reckless manslaughter.

The trial court’s resultant charge was in error because it did not guide the jury on how it should consider and apply this evidence to the manslaughter offenses. Specifically, the court did not distinguish for the jury between how diminished capacity is used in considering the murder charge, i.e., as an affirmative defense negating an element of the crime, and how it is used in considering manslaughter, i.e., as evidence proving recklessness. The court thus did not clarify or explain the critical distinction between diminished capacity as an affirmative defense to murder and simply as evidence relevant to the manslaughter offense.

This error in the diminished capacity charge does not, however, require a reversal of defendant’s murder conviction. The trial court noted correctly that apart from the evidence of diminished capacity, there was very little evidence to support a reckless killing. In fact, all of the evidence of this killing pointed strongly toward the State’s contention that this was a knowing and purposeful murder. The trial court’s failure to treat the evidence of diminished capacity as one of many pieces of evidence supporting a reckless killing instead of as an affirmative defense simply pales in force and effect, and hence in its influence on the jury’s deliberations, because of the *444 pervasive evidence of a purposeful killing and because there was no other evidence of a reckless killing. Most important, the trial court’s imperative statement that the jury must find that a killing was reckless if diminished capacity was established linked diminished capacity and reckless killing in a manner that impressed upon the jury the fact that evidence of diminished capacity could support a finding of aggravated or reckless manslaughter.

I submit, then, the trial court’s charge with respect to the jury’s consideration of the evidence of mental disease or defect was erroneous, but not reversible. Under a conventional standard, I believe that the court’s mistaken treatment of diminished capacity did not contribute to the jury’s determination of guilt. Moreover, under an enhanced standard of review, I am unable to conclude that there was a realistic likelihood that the court’s instruction on diminished capacity prejudicially influenced the jury’s deliberations. I would therefore not find this error reversible.

III.

Defendant challenges the jury’s finding of guilt on the aggravated sexual assault charge. He argues that the State’s expert’s testimony on the saliva found in the victim’s vagina was improperly admitted and that this unfairly prejudiced the jury. I find that the admission of such evidence does not require a reversal of the murder conviction, but that it should require a reversal of the aggravated sexual assault conviction.

The aggravated sexual assault charge proved most difficult to establish. There was no evidence of trauma to the victim’s sexual organs, and laboratory tests of the oral, anal, and vaginal swabs taken at the autopsy were negative for the presence of spermatozoa or seminal flúid. Nor were there traces of these substances found elsewhere. Rather, the State relied primarily on a laboratory finding that there were elevated levels of amylase activity in the victim’s vagina. Through *445 its expert the State was able successfully to argue to the jury that this chemical finding was attributable to saliva that was present, and that the presence of the saliva was the result of a sexual act involving penetration.

These proofs were dependent on expert testimony that did not meet the standards for scientific reliability that this Court has required to admit such evidence. The majority, however, apparently believes that the evidence meets such standards, ante at 412, and that defendant’s conviction for aggravated sexual assault is therefore untainted and should stand. I strongly disagree.

The presence of amylase in the victim’s vagina, according to the State’s expert chemist, Dr. Andrew Nardelli, was strongly indicative of the presence of saliva. Nardelli testified that amylase is an enzyme that breaks up starch material into smaller units. It is found in high concentrations in saliva and in the pancreas, and in lesser concentrations in semen, sweat, and tears. The gist of Nardelli’s opinion was that the amylase activity from the victim’s vagina was well in excess of the normal level. He acknowledged that such an elevated level of amylase activity could indicate “something going wrong within your body.” But, he said, if such things are “taken care of,” then the elevated amylase levels could come from “a common outside source, something that is easily transferred, and would be from something characteristic of saliva because it falls exactly within the range of saliva.” 1

*446 Defense counsel objected to the chemist’s testimony based on this comparison of amylase levels. He pointed out that he had not had any of the witness’s laboratory reports, logs, or notes sufficiently in advance of trial, and so could not adequately prepare for cross-examination. The trial court overruled the objection, noting that the State also did not have some of this information, and offered defendant an opportunity to review the data in question and recall Nardelli for cross-examination.

Defendant argues now that the State’s failure to disclose through discovery the results of Dr. Nardelli’s comparison of amylase levels was extremely prejudicial and that “a defense expert given the opportunity to review the informal study before trial could very likely have challenged its methodology and thus its reliability.” In light of the absence of a foundation for Nardelli’s study, I agree with defendant’s contention that the lack of proper notice takes on additional significance.

More important, however, than the lack of adequate notice and proper discovery is the fact that Nardelli’s “study” was itself of unproven reliability as scientific evidence. This Court has repeatedly insisted that scientific evidence satisfy minimal standards of reliability. See, e.g., State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981). In State v. Kelly, 97 N.J. 178 (1984), Chief Justice Wilentz, for the Court, explained that Evidence Rule 56(2) “imposes three basic requirements for the admission of expert testimony: (1) the intended testimony *447 must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.” Id. at 208 . Turning to the question of reliability, the Court noted that “[t]he technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth.” Id. at 210 . This “sufficient scientific basis” can be established, “[i]n a relatively new field of research,” by reliance on (1) “expert testimony as to the general acceptance” of the premises on which the expert’s analysis is based, (2) “authoritative scientific and legal writings” indicating general acceptance of these premises within the scientific community, and (3) “judicial opinions [indicating] the expert’s premises have gained general acceptance.” Id. at 210 .

These standards of reliability were not met in this case. There was no proof of the general scientific acceptance of the chemist’s “technique” for determining and identifying amylase activity, see Ferlise v. Eiler, 202 N.J.Super. 330, 334-36 (App. Div.1985) (holding thermograph results inadmissible in part because there was no record below establishing reliability), and there were no other experts to attest to the reliability of the witness’s results, cf. State v. Kelly, supra, 97 N.J. at 213-14, n. 19 (on remand trial court must allow State to present conflicting expert testimony concerning reliability of battered woman’s syndrome). The only evidence to support Nardelli’s belief that the methodology used was scientifically reliable was his own. This is insufficient, particularly when the expert is a proponent of his own theory and is so clearly identified with the particular subject matter. See Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 380-81 (1987) (testimony of two experts affiliated with development of voiceprint analysis, which the court noted appeared to be “a sole source industry,” did not establish general acceptance within scientific community and was suspect *448 because of “potential bias.” People v. Brown, 40 Cal.3d 512, 530 , 230 Cal.Rptr. 834 , 726 P.2d 516 (Cal.1985) (expert testifying to general acceptance of scientific technique must be “not so personally invested in establishing the technique’s acceptance that he might not be objective”), vacated and remanded on other grounds sub nom. California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987).

In my view, the trial court has an independent judicial responsibility to ascertain the competence of an expert’s proffered opinion and to satisfy itself about the admissibility of such scientific evidence, absent an informed defense decision to accept its admissibility.

The State itself presented no other expert testimony or scientific writings or legal precedents showing that the procedures followed by its own expert for determining average amylase levels in saliva and vaginal secretions followed generally accepted or standard scientific practice. The Court misperceives the significance of this omitted foundation, stating that the expert’s testimony that “fluids consistent with saliva were found in the victim’s vagina ... did not in themselves establish defendant’s guilt or innocence” of aggravated sexual assault. Ante at 412. However, Nardelli’s testimony did not play a secondary role; rather it provided a central and indispensable basis for the State’s case on the aggravated sexual assault charge because without this testimony there was no evidence of penetration.

The State argues that this testimony could be admitted under Evidence Rule 57, which provides that “[s]ubject to Rule 56, a witness may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The witness may in any event be required to disclose the underlying facts or data on cross-examination.” The Rule, however, only addresses the discovery problem and in no way obviates scientific reliability as a condition to the admissibility of expert opinion testimony.

*449 Moreover, the trial court’s reasons for overruling the defendant’s objection to this evidence on discovery grounds are not persuasive. The trial court’s reliance on the alleged absence of bad faith on the prosecutor’s part did not diminish the prejudice; it was the defendant, not the prosecutor, who suffered from this failure of discovery and lack of knowledge. Further, the remedy offered by the trial court in this case — allowing the defense in midtrial to review all of the chemist’s records and recall the witness — was illusory. The methodology used by the chemist involved data from over 1,600 tests performed under seemingly uncontrolled and undescribed circumstances. The court’s remedy thus required the defendant to assume the unreal burden of reviewing the results and relating them to the facts of the instant case. Defendant was placed at a terrible disadvantage, being forced to interrupt the trial and attempt to redress the failure of discovery or to go forward with the trial surprised and unprepared. Confronted with the trial court’s rulings, defendant did produce his own expert, but that expert could only stress that the entire approach was flawed and unreliable and that tests should have been performed to locate other “identifying markers” of saliva. 2 It was error for the trial court to have tipped the adversarial balance so sharply against the defendant because of the State’s unilateral, critical, and avoidable derelictions.

The failure of discovery and the use by Nardelli of an unreliable and non-scientific methodology as a basis for his expert opinion that saliva was present in the victim’s vagina were exacerbated further by the fact that he was permitted to express his own opinion that the saliva was present because of sexual penetration. 3 The offer of this opinion was grave error. *450 The testimony of any expert is permitted only to assist the trier of fact in understanding “a subject-matter beyond the understanding of persons of ordinary experience, intelligence, and knowledge.” State v. R.W., 104 N.J. 14, 30 (1986); see, e.g., State v. Kelly, supra, 97 N.J. 178 ; Evers v. Dollinger, 95 N.J. 399 (1984). As noted by the court in DiNizio v. Burzynski, 81 N.J.Super. 267, 272 (App.Div.1963) (quoting Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141 (1950)),

[t]he true test of admissibility of such testimony is not whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter; but it is whether the witnesses offered as experts have peculiar knowledge or experience not common to the world which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue.

In this case there was no showing that the chemist had any special or peculiar knowledge or experience in the area of determining when sexual penetration has occurred. Nor in fact was it shown that this, the presence of saliva in the vagina leading to the conclusion that sexual penetration may have occurred, is something that the ordinary person could not determine from common experience, unlike other areas where a specialist might be needed in order to educate a factfinder about some related scientific question. Cf. Holt v. State, 147 Ga.App. 186 , 248 S.E.2d 223 (1978) (in prosecution of rape, question calling for physician’s opinion as to what caused tear in victim’s vagina properly left itself to expert opinion and did not invade province of jury).

As a result of the lack of any showing that the chemist was an expert with respect to the sexual transmission of saliva, it was improper to permit him to express his own, personal opinion concerning sexual penetration. Because he was accepted by the court as an expert in other areas, and presented to *451 the jury as an expert, the jury was likely to attribute undue weight to his opinion that sexual penetration occurred. See State v. R.W., supra, 104 N.J. at 30 (recognition that a factfinder’s “uncritical acceptance of expert testimony can becloud the issues.”); Biro v. Prudential Ins. Co. of America, 57 N.J. 204 (1970), rev’g o.b. 110 N.J.Super. 391, 402-06 (App.Div.1970) (dissenting opinion) (improper to admit testimony by medical examiner, based on statements by decedent’s relatives or friends, that death was result of suicide as this was not within expertise, and there was potential that jurors would place undue credence on it due to witness’ status as expert); see also Biunno, N.J. Rules of Evidence, Comment 8 to Evid.R. 56 (Anno.1988). As the Court noted in In re Hyett, 61 N.J. 518, 531 (1972),

[a]n expert witness should distinguish between what he knows as an expert and what he may believe as a layman. His role is to contribute the insight of his speciality. He is not an advocate; that is the role of counsel. Nor is he the ultimate trier of the facts; that is the role of the jury or the judge, as the case may be. The trier of the facts may be misled if the expert goes beyond what he can contribute as an expert.

In this case the expert went beyond the bounds of his expertise and thus improperly infringed on the factfinder’s role.

Given the circumstantial nature of the evidence of aggravated sexual assault (the position and state, of undress of the body, the underwear on the bed, the dentures on the nightstand), as well as of its non-occurrence (the absence of semen and of any kind of trauma to the victim’s sexual organs that would indicate penetration), the chemist’s testimony that saliva was found in the victim’s vagina and that the saliva was present only as a result of sexual penetration became central to the State’s attempt to prove this element of aggravated sexual assault. Admission of this testimony by Nardelli constitutes error because it was based on unreliable scientific methodology, was not properly disclosed, and improperly concerned an “ultimate fact” beyond the reach of expertise.

The prejudicial effect of this must also be conceded. This is confirmed in light of the prosecutor’s guilt-phase summation. *452 In this he focused almost exclusively on the expert testimony, stating flatly that this showed that the amylase found in the victim was a result of Zola’s sexual penetration of the victim. 4

We do not have to speculate whether the expert’s opinion was prejudicial. Its prejudiciality was graphically underscored by the prosecutor’s concession that the evidence of sexual penetration would have been insufficient without the expert’s opinion. 5

The question remains, however, whether the erroneous admission of Nardelli’s testimony constitutes reversible error with respect to the capital murder conviction. Because this is a capital case, the test, I submit, must be whether this evidence affected the jury’s deliberations, not necessarily its determinations, in a way that prejudiced the defendant. See State v. Bey (I), supra 112 N.J. at 117-19 (Handler, J., concurring). The test is whether there is a realistic likelihood that *453 the admission of this opinion evidence had a prejudicial effect on the jury’s deliberations. Ibid.

Although the evidence should not have been admitted, it is impossible, I believe, to conclude that this admission created a realistic likelihood of having a prejudicial effect on the jury’s deliberations with respect to the murder charge. The explosive and prejudicial nature of the evidence against the defendant that was properly admitted to support the other charges, particularly capital murder, minimized dramatically the prejudicial influence of Nardelli’s testimony on the jury’s deliberations. Such evidence included the fact that the victim, a seventy-five year old woman, was kept captive for a long time; that she was isolated, terrorized and subject to abuses and violence; that she was tied spread eagle to a bed, and severely scalded from hot water; and that she died from asphyxia resulting almost certainly from manual strangulation. This overwhelming evidence of brutal murder serves so demonstrably to stigmatize the defendant as a vicious homicidal character that the added evidence of a sexual attack would not significantly heighten this impression of wantonness. It is in this sense that such evidence would not have had a prejudicial effect on the jury’s deliberations.

For these reasons I therefore would reverse defendant’s conviction for aggravated sexual assault, but would not on these grounds find cause to reverse the murder conviction.

IV.

In this capital murder case, I concur in the Court’s reversal of defendant’s death sentence. I can also concur generally in the reasoning of the Court that would affirm defendant’s conviction for murder. I disagree with its holding that the conviction for aggravated sexual assault should be upheld and would bar such evidence from a future penalty phase proceeding unless guilt is established in a second trial. The errors that create special concern, those relating particularly to the crime *454 of aggravated sexual assault as well as the evidence of diminished capacity, do not in the context of the enhanced standard of review justify reversal of defendant’s murder conviction. Finally, I continue to believe that constitutional standards and principles of fundamental fairness impugn our capital murder-death penalty statute as enacted, as interpreted, and as applied, and thus cannot join the majority’s opinion but would concur in its result, with the noted exception of the aggravated sexual assault conviction.

Justices HANDLER and POLLACK, concurring in part and dissenting in part.

For affirmance in part, reversal in part and remandment —Chief Justice WILENTZ, and Justices CLIFFORD, O’HERN, GARIBALDI and STEIN — 5.

The chemist described the laboratory experiments he conducted as follows: We have run approximately 1,644 samples for amylase activity. Because of this particular case, and the significance of what this means, I went through every one that we ran, and I looked at every sample that we recorded with a value of an amylase activity equivalent to or higher than this particular reading.

And I went through all of our files. I didn’t know what the samples were, all. I just had a case number and specimen number, so I had to track back to them.

*446 Everyone that I could find information for that particular sample, types of samples I was finding were known saliva samples, samples taken from flaps of envelopes, samples taken from cigarette butts, samples taken from cases where the case report indicted that there was some type of oral sex involved.

Of all these samples, and I must admit there were 49 I was not able to trace back because of inadequate case histories or the case was not present in our laboratory, but of all the ones that I found, everything came back to an indication of saliva. And from my experience in looking these up, and of the samples that we've examined, the only other easily available source of this activity from my experience, would be of that type of alpha amylase that would be present in saliva.

His opinion that the readings might be consistent with saliva amylase does not provide support for Nardelli’s unreliable and unscientific methodology.

This was the expert’s so-called ’’scientific" opinion:

*450 Sexually, you can use saliva to be transferred as a lubricant. You can in sexual occurrence, which I have seen, where the penis is placed in the mouth of an individual, and then placed into the vagina of an individual, you have a direct transfer of amylase.

This statement was:

Andy Nardelli told you, it would have gotten there either from oral sex, that is cunnilingus or it would have gotten there because the defendant lubricated either his penis, finger or an object with saliva and then inserted that penis, that finger or that object into her vagina.

And to counter the suggestion that there was no penetration because the saliva did not match that of the defendant, the prosecutor further stated:

Andy Nardelli gave you the explanation for that, too. He told you that if a defendant has fellatio with a woman and then inserted his penis into her vagina without ejaculating, you would find her amylase and not his.

The prosecutor argued:

Was Barbara Berrisford sexually assaulted by James Zola. If all we had was evidence in this case with Barbara Berrisford nude on her bed, that might not be enough. If all we had was evidence in this case that Barbara Berrisford was tied spread eagle on her bed, that might not be enough. If all we had as evidence in this case was the defendant's underwear on her bed, that might not be enough. If all we had in evidence in this case was salivary amylase in Barbara Berrisford’s vagina, that alone might not be enough. But when all of these conditions exist, the State submits that it is an inescapable conclusion that James Zola sexually assaulted Barbara Berrisford, penetrating her vagina, whether he, whether he used his tongue, his finger, an object or his penis while she lay helplessly tied to the bed. (Emphasis added).