STATE OF NEW JERSEY v. EWART PATRICK

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Appellant, v. EWART PATRICK, Defendant–Respondent.

DOCKET NO. A–3231–12T4

-- December 16, 2013

Before Judges Yannotti and St. John. Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).   Gregory Aprile, attorney for Respondent.

The State appeals, by leave granted, from an order entered by the Law Division on January 30, 2013, which granted defendant's motion to bar the State from presenting at trial certain expert testimony.   We reverse.

I.

A Passaic County grand jury charged defendant with first-degree aggravated sexual assault upon a victim who is less than thirteen years old, N.J.S.A. 2C:14–2(a)(1) (count one);  second-degree sexual assault, N.J.S.A. 2C:14–2(b) (count two);  and second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a) (count three).   The State claimed that, on October 17, 2009, defendant digitally penetrated S.K.'s vagina and performed cunnilingus upon her.   S.K. was seven years old at the time.

The matter was tried before a jury from May 30, 2012 through June 14, 2012.   At the trial, the State presented evidence that S.K. reported to her mother E.A. that defendant, her mother's live-in boyfriend, had sexually abused her.   E.A. reported the matter to the police, who conducted an interview with her daughter.   S.K. told the interviewer that defendant touches her “private part” with his finger and, and on that day, “touched it with his tongue.”

S.K. said the incident on that day occurred in her mother's room, on the bed in which her mother and defendant sleep.   She stated that she tried to get away but defendant stopped her.   According to S.K., defendant then spread her legs and “started playing with” her.   S.K. said she was wearing a diaper at the time.   She stated that defendant put his finger in the diaper and inside her “private.   She also stated that defendant stretched out the side of the diaper and “put his tongue” in her “private.”

When S.K. informed her mother that defendant was touching her and “playing around” with her vagina, E.A. confronted defendant.   He denied that he had done anything inappropriate.   When the police arrived, they confiscated and stored S.K.'s clothing, including the diaper that S.K. was wearing when the alleged offenses occurred.

Defendant agreed to a videotaped interview.   He denied doing anything wrong.   The detective conducting the interview told defendant that forensic scientists could check for the presence of saliva on or near S.K.'s vagina.   Defendant agreed to provide a sample of his saliva.   The police took buccal swabs from defendant and preserved the swabs for forensic examination.

Delores Coniglio, a forensic scientist at the New Jersey State Police Office of Forensic Sciences, testified as an expert in the area of analysis of deoxyribonucleic acid (DNA), which she said is “genetic material that we inherit from our parents.”   Coniglio stated that she had received DNA samples from S.K. and defendant.   Coniglio analyzed S.K.'s diaper and, although she determined that there was human male DNA present in the material, she could not generate a profile of the DNA. She said that, based on her analysis, there was no way of determining from whom the male DNA came.

The jury found defendant not guilty on count one, and it could not reach verdicts on the other counts.   The trial judge declared a mistrial.   On January 7, 2012, jury selection began for the retrial on counts two and three.   By January 29, 2013, the jury had been selected but it had not been sworn.

On that date, defense counsel objected to certain expert testimony that the State intended to present at trial, specifically testimony that the diaper had been tested and found to be positive for amylase, an enzyme present in human saliva.   On January 29, 2013, the trial judge heard oral argument on defendant's objection.

The assistant prosecutor noted that the State had informed the defense “three years ago” that it was going to use evidence regarding the presence of amylase in S.K.'s diaper.   Thirty days before the trial, the State had received a “complete report” from Matthew R. Wood, a forensic scientist with the State Police.   The assistant prosecutor had discussed the testimony with defense counsel.   He noted that amylase is found in high concentrations in human saliva.

The assistant prosecutor pointed out that the scientist could not state that the amylase was from defendant's saliva, but the DNA expert would testify that there was male DNA in the same sample.   He stated that it was “very probative circumstantial evidence” which supported S.K.'s testimony.   The assistant prosecutor conceded that there was no written report which detailed “everything” he had represented.   The assistant prosecutor said defendant had not asked to produce a report.

However, the State provided the judge with a copy of Wood's “DNA package.”   It was dated November 19, 2009, and had been previously provided to the defense.   A document in the “package” referenced amylase and in parentheses noted that it was a “constituent of saliva.”

Defense counsel argued that amylase may be found in saliva, but it could also be found in other fluids in the body.   Defense counsel said that the amylase could be from urine.   The judge commented that she was inclined to permit the State to present the testimony.   The judge pointed out that defendant had timely notice of the State's theory of the case and sufficient time to address the anticipated expert evidence.

Defense counsel responded by stating that he was going to have to get an expert witness for the trial.   He said he could not try the case on the basis of information that the prosecutor had given to him orally.   After a short break in the proceedings, defense counsel informed the judge that the Public Defender's Office did not have a forensic specialist readily available or on call, who might be able to write a report and testify in a reasonable period of time.

Counsel said he was going to have to ask the court to discharge the jury and give him an opportunity to retain an expert witness in this field.   The assistant prosecutor suggested that, instead of discharging the jury, the judge should conduct an N.J.R.E. 104 hearing, outside the presence of the jury, at which Wood would testify.   The prosecutor stated that defense counsel could cross-examine Wood and “find out everything” he might need to know.   Counsel agreed to go forward on that basis but did not agree this would “obviate the need for an expert.”

II.

The judge conducted the evidentiary hearing the following day.   Wood testified that in November 2009, he had been employed by the State Police at its Forensic Laboratory.   Wood analyzed certain items related to the case, and prepared a report concerning his analysis two days later.   One document in the report noted that the Office of Forensic Science had received a white child's diaper and pink children's “top” that were recovered from S.K. The Office of Forensic Science also received four buccal swabs from defendant, and a box containing a “sexual assault evidence collection kit” from S.K.

Wood explained his analysis of the diaper.   He observed a stain area in the interior of the crotch, and noted that the diaper appeared to be soiled.   He performed a series of tests.   No seminal material was detected.

Wood also conducted a “[P]hadebas test,” which is “a test specifically for amylase.”   Wood explained that “[a]mylase is an enzyme that's found in high concentrations in saliva.”   He said the Phadebas test is used “to locate [any] potential DNA that [may be] contributed from saliva.”

Wood removed a portion of the stain from the diaper.   He performed the Phadebas test, which activated the amylase in the object.   Wood said that, utilizing the test, he determined that the diaper contained amylase at the level the test was designed to detect.

On cross-examination, Wood said his analysis revealed no sperm cells on the vaginal and anal swabs, on the wipes used on the external area of the genitalia, or on the child's underwear.   Wood performed the Phadebas test on the external genital specimen, the crotch of the underwear and the interior of the diaper.   No amylase was found on the external genital sample or the underwear.   The test for amylase on the interior of the diaper was positive.

Wood said amylase can be found in saliva and in the pancreas.   It also can be present in other bodily fluids, such as urine.   It can be found in breast milk.   Wood was asked whether he could determine whether amylase comes from saliva.   He said the test “is solely to detect the presence of amylase.”   Wood stated, “We only report on our notes that amylase was present and that amylase is found in saliva.”

Wood also stated that the test he performed does not provide a quantitative numerical reading.   He explained that the amylase in urine comes primarily from the pancreas.   Any amylase that travels into the stomach would be digested with any proteins that end up in the stomach.   Wood additionally said that he was not aware of any test to determine whether the amylase was from saliva rather than some other bodily fluid.

On re-direct examination, Wood noted that the Phadebas test is not designed to react with anything below 2,000 units of amylase.1  He said that bodily fluids other than saliva contain amylase at much lower levels.   He said urine was “on the order of 900 units” and that would be the highest of the other bodily fluids.   Breast milk “was many fold lower than that.”   While amylase could be detected in perspiration, it would be at a level lower than the 2,000 unit threshold.

Defense counsel argued that Wood's testimony on amylase should be barred because he could not testify to a reasonable degree of scientific certainty that the positive reading he achieved indicated that the sample contained saliva.   Counsel noted that all Wood could say was that he had a positive reading for amylase, which is “not only in saliva” but also in other bodily fluids, including urine.

Counsel noted that, while the manufacturer apparently designed the test so that a positive reading would only result from 2,000 International Units per liter, no materials had been provided “on that” issue.   He said that, if Wood could not testify with any degree of scientific certainty that his positive reading from the stain was from saliva, he should not be permitted to testify.   Otherwise, the jury would be speculating that the amylase came from saliva.   Counsel stated that Wood could testify as to his DNA analysis, but not on the amylase test.

The assistant prosecutor argued that Wood's testimony on the DNA and amylase testing should be admitted.   He said the testimony was “highly relevant” because S.K. said defendant made oral contact with her vagina.   He argued that, because the test was designed so that it would only react at 2,000 units, which are the levels at which amylase is found in saliva.

The assistant prosecutor stated that the test would not generate positive findings for bodily fluids with fewer units, such as urine, breast milk or perspiration.   Even if Wood could not state with certainty that the substance found on the diaper was saliva, his testimony would provide circumstantial evidence that corroborates the victim's assertions.

The judge ruled that Wood could testify as to his DNA analysis, but he could not testify as to his finding that amylase was present because amylase is present in saliva and other bodily fluids.   The judge stated that

Since there is no test to determine the source of the amylase as saliva or urine or any other bodily fluid, I am satisfied that the risk of undue prejudice, confusion of the issues on misleading the jury, substantially outweighs the probative value that such testimony would have.   Accordingly, I am making my ruling under [N.J.R.E.] 403 and the balancing test that I've undertaken with respect to [that rule].

The judge granted the State's motion to stay the trial while it pursued an interlocutory appeal.   The judge then dismissed the jurors and entered the order dated January 30, 2013, granting defendant's motion to limit Wood's testimony.   We thereafter granted the State's motion for leave to appeal from the judge's order.

III.

The State argues that the trial judge erred by limiting Wood's testimony.   The State contends that the judge ignored the Court's guidance in State v. Torres, 183 N.J. 554 (2005), and in doing so clearly abused her discretion by excluding expert testimony that is identical to expert testimony routinely accepted in the New Jersey courts.

We note that in support of its argument, the State has submitted an array of information that it did not submit to the trial court.   The State notes that the most common test for the presence of saliva in the field of forensic science is the Phadebas Press Test, a brand name controlled by a Swedish company, called Magle Life Sciences (Magle).

The State says that, like all forensic tests for bodily fluids, the Phadebas Press Test is “indirect.”   Because all other constituents of saliva tend to evaporate and degrade almost immediately, scientists test for amylase, a chief constituent of saliva.

The State quotes the following statement from a document issued by Magle:

The enzyme a-amylase is found in high levels in saliva.   Its activity in stains is used as an indicator for the presence of saliva.   The test used to identify amylase uses Phadebas®, which are tablets that consist of a blue dye cross-linked to starch․  In the presence of amylase, the starch is digested, releasing the dye into the solution.   The resulting blue coloured product can be observed visually (Press test) or determined semi-quantitatively using a spectrophotometer (Tube test).   The Phadebas® reagent is used in tablet form in the Tube test, or dissolved and sprayed onto filter paper to be used in the Press test.

Although the Phadebas® test is specific for amylase, it is not specific for saliva.   Amylase is found in other body fluids, although normally at much lower levels than it is present in saliva.   Generally, amylase found in other body fluids will not be present in sufficient quantity for detection by either the Press or Tube test methods.

The State contends that forensic scientists recognize the potential significance of finding evidence of the presence of amylase.   According to the State, because amylase is found in other bodily fluids, “a great many tests” have been “conducted and published” in scientific journals which explore the efficacy of various tests for the presence of amylase in high enough concentrations to “strongly suggest” the presence of saliva.

In its appendix, the State has submitted copies of such studies, including a study by Michael J. Auvel, published in 1986, which used the Phadebas test to compare the levels of amylase in semen and saliva.   The study was published in the Journal of Forensic Sciences, JFSCA, Vol. 31, No. 2, April 1986.   According to the State, this study is “considered a classic in the field” and it is “followed by forensic scientists around the world.”

In his study, Auvel states, among other things, that the presence of high concentrations of amylase in biological stains “has been used in forensic science casework as a primary determinant for the detection of saliva.”   Auvel cites various other works which reach the conclusion that amylase in high concentrations is the best possible indicator of the presence of human saliva.

The State also notes that in 2007, Magle re-designed its Phadebas Press Test. According to the State, Magle re-designed the test so that it would be more specific to the presence of saliva.   The State includes in its appendix documents apparently produced by Magle, which indicate that studies have repeatedly found the level of amylase in saliva is many factors greater than that typically found in other bodily fluids.

According to Magle, a 1975 test found, among other things, that between 263,000 to 376,000 International Units per liter of amylase was found in saliva, while only 263 to 940 International Units per liter of amylase were found in urine.   Magle noted that fecal stains may contain levels of amylase as high as those found in saliva and, for this reason, areas “obviously contaminated with [feces] should not be interpreted for the presence of saliva.”

The State also asserts that, after the latest formulation of the Phadebas Press Test, a Swedish laboratory conducted tests to determine whether the new test was effective in identifying saliva stains.   The State says the Swedish laboratory published a study, in which it concluded that the newly-formulated test “gives a good indication to whether or not a crime scene stain contains saliva suitable for DNA analysis.”

The State additionally asserts that the New Jersey State Police performed its own validation study of the Phadebas Press Test in 2008 and published its findings in 2009.   According to the State, the State Police scientists validated Magle's claims regarding its product and determined that the process was sensitive and specific enough to be used to test for the presence of saliva.

We are convinced that the trial judge's order barring Wood's testimony on the amylase testing of the sample of S.K.'s diaper must be reversed and the matter remanded for reconsideration.   The trial judge only had the benefit of Wood's testimony at the N.J.R.E. 104 hearing.

The State did not present the judge with the documentary evidence and studies it claims support its assertions regarding the reliability of the Phadebas Press Test as an indicator of the presence of saliva in tested materials.   The State presented no testimony regarding the validation tests performed by the State Police.   The State also failed to present the trial judge with the judicial opinions it now cites as authority for admission of the disputed evidence.

While the State faults defense counsel for failing to challenge Wood's anticipated testimony in a timely manner, its point is not well taken.   The record shows that defense counsel had Wood's 2009 “DNA package,” which noted the results of the amylase test, but the State did not present testimony on that issue in the first trial.

The State did not inform defense counsel until several weeks before the second trial that it intended to present expert testimony on the amylase testing.   The State did not produce an expert report.   Rather, the assistant prosecutor gave defense counsel an oral summary of the anticipated testimony.

Even so, when defense counsel moved to bar Wood's testimony on the amylase test, the State was obligated to present the trial judge with all of the pertinent documentation and studies and legal authority it now relies upon in its appeal.   Clearly, this court is not the appropriate forum to consider this material in the first instance.   For these reasons, the matter must be remanded to the trial court so that it can reconsider its decision, based on a full record.

On remand, the State should be required to disclose, to the extent it has not already done so, “the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”   R. 3:13–3(b)(1)(I);  State v. Russo, 243 N.J.Super. 383, 408 (App.Div.1990) (noting the prosecutor's obligation to disclose the opinions to which the expert is expected to testify), certif. denied, 126 N.J. 322 (1991).   Defendant's attorney should be afforded an opportunity to retain an expert, and must inform the State of the “facts and opinions” to which the expert will testify, along with the basis for each opinion.

The trial judge then shall conduct an N.J.R.E. 104 hearing, and thereafter determine whether the State's expert should be permitted to testify that the results of the Phadebas test of the sample of S.K.'s diaper is a strong indication of the presence of saliva, rather than some other bodily fluid or fecal stain.   In reaching this decision, the judge shall be guided by the analysis set forth in State v. Torres, supra, 183 N.J. 554.

As proponent of the expert testimony, the State has the burden to establish its admissibility.  Id. at 567.  “The starting point for determining the admissibility of expert testimony is [N.J.R.E.] 702.”  Ibid. The rule establishes three requirements for admission of expert testimony.  Id. at 567–68.

The first requirement is that the expert testimony address matters that are “ ‘beyond the understanding of the average person of ordinary experience, education, and knowledge.’ ”  Id. at 568 (quoting State v. Odom, 116 N.J. 65, 71 (1989)).  “ ‘If the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts,’ it satisfies the first requirement for admissibility.”  Ibid. (quoting Odom, supra, 116 N.J. at 71).

“Next, the field of inquiry must be generally accepted such that an expert's testimony would be sufficiently reliable.”  Ibid.

There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance with the professional community.   First, such general acceptance can be established by the testimony of knowledgeable experts.   Second, authoritative scientific literature can be used to establish professional acceptance.   Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed.

[Ibid. (quoting State v. Kelly, 97 N.J. 178, 224 (1984)).]

“The final requirement for admissibility is that the expert is qualified by knowledge, skill, experience, training, or education.”  Id. at 572 (citing State v. Moore, 122 N.J. 420, 458–59 (1991)).   An expert's experience may be sufficient, even if limited.  Ibid. (citing Moore, supra, 122 N.J. at 457–60).

Reversed and remanded for further proceedings in conformity with this opinion.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. The record indicates that “units” refers to “International Units per liter.”

PER CURIAM

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