STATE OF NEW JERSEY v. GEORGE CALLEIA (2011)

A Monmouth County jury found defendant George Calleia guilty of murdering his wife, Susan Calleia, N.J.S.A. 2C:11-3(a)(1) and/or (2), tampering with physical evidence, a fourth degree offense under N.J.S.A. 2C:28-6, and hindering apprehension, a third degree offense under N.J.S.A. 2C:29-3(b)(1) and/or (4).   The court sentenced defendant to an aggregate term of fifty years, with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision, both pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the relevant mandatory fines and penalties.

Defendant now challenges his conviction and sentence on appeal.   After reviewing the trial record, we reverse.   We are satisfied that the trial court committed reversible error by admitting certain hearsay statements attributable to the victim concerning her desire and intention to terminate her marriage with defendant.   The court incorrectly characterized these statements as “state of mind evidence” under N.J.R.E. 803(c)(3).   These hearsay statements had the clear propensity of being perceived by the jury as evidence of defendant's motive for allegedly murdering his wife.   As such, they should have been excluded under State v. Machado, 111 N.J. 480 (1988), and its progeny.

Because defendant presumably will be tried anew on these charges, we also address defendant's attack on the trial court's admission of DNA evidence presented by the State as part of its case against him.   Specifically, we hold that the trial court correctly admitted Y-STR DNA evidence, in the form of biological material found under the victim's fingernails, under N.J.R.E. 702 and the standards established by our Supreme Court in State v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L. Ed.2d 683 (2000).   The trial court thus correctly admitted the testimony of the State's expert witness, who opined that this DNA evidence showed that defendant could not be excluded as a “donor” of the biological material.

I

We derive the following facts from the evidence presented at trial.

A

In October 2005, defendant shared his marital residence in the Township of Holmdel with his wife Susan and their eight-year-old daughter “Ana” (a fictitious appellation to protect the child's privacy).   At that time, defendant was employed as the director of sales and marketing for a computer software company.   Susan was described by those who knew her as a “stay-at-home mom” who took an active part in her daughter's social and academic life.

At approximately 6:15 a.m. on October 21, 2005, defendant telephoned the 911 Center at the Monmouth County Sheriff's Department to report that his wife was missing.   The call was referred to the Holmdel Police Department which in turn dispatched Patrolman David D'Arcy to the Calleia residence.   As D'Arcy approached the house, defendant opened the door and motioned for him to come inside.   Once inside the house, defendant told D'Arcy that his wife Susan was missing.   Defendant stated that he first became aware of her absence when he entered the garage at 5:30 a.m. to leave for work and discovered that Susan's car was gone.   He then searched the house to confirm that she was not there.

In response to D'Arcy's questions, defendant indicated that the last time he had seen his wife was the previous evening.   He had been watching television while waiting for her to return home;  defendant was upset because she had left without telling him where she was going.   When Susan returned home at around 8:00 p.m., they had a “verbal dispute” which they “resolved,” and then defendant went upstairs to bed.   During further questioning by D'Arcy, defendant indicated that his wife had no history of mental illness, was in good physical health, and was not taking any medication.   D'Arcy described defendant's demeanor during this encounter as “very nervous”;  he was trembling, spoke in a subdued tone, and persistently looked at the ground.

D'Arcy returned to the police station and shared the information he had obtained with the detective bureau.   As a result, the Holmdel Police Department issued an alert or “TRAK message,” indicating that defendant had reported his wife, Susan Calleia, missing;  her name was also entered into the National Crime Information Center (NCIC) ¹ database.   Later on the morning of October 21, 2005, Holmdel detectives contacted the Monmouth County Prosecutor's Office to request assistance with their investigation.

At approximately 4:00 p.m., Detective Sergeant Brian Veprek, who was assigned to the major crimes unit in the prosecutor's office, reported to the Calleia residence, where Holmdel Detective Sergeant James Smythe briefed him on the case.   Veprek testified that when he extended his right hand to shake defendant's hand, defendant did not extend his hand in return and did not shake Veprek's hand.   Veprek recalled that defendant was wearing a long-sleeved white shirt that hung below the tips of his fingers on both hands.   He also noted that defendant continually looked down without making eye contact with him.

Veprek and Smythe told defendant that they would like to obtain a formal statement from him concerning his wife's disappearance and asked him to accompany them to the police station.   According to Veprek, defendant asked if it was really necessary since this was “just a missing persons investigation.”   Defendant then stated:  “I'm not going to your house, I've seen Law and Order and NYPD Blue, and I know what happens when I'm in your house.”   Veprek asked defendant if a secretary from his office could come to his home with a computer to take his statement;  defendant agreed, stating:  “if it's necessary.”

B

The secretary arrived at the Calleia house at approximately 4:53 p.m. Defendant's statement consisted of his answers to questions posed to him by the interrogating officers;  it covered seventeen pages and was taken down verbatim by the secretary using a laptop computer.   The interview lasted one hour and thirty-four minutes, with a one-minute break to permit defendant to walk the family dog.   The statement concluded at 6:27 p.m. It is important to note that at the time he gave this statement, the police had no reason to believe that defendant was in any way responsible for his wife's disappearance.

Responding to Veprek's direct questions, defendant indicated that he arrived at his house the night before his wife's disappearance at approximately 6:20 p.m. When he entered the residence through the garage, he noticed that his wife was home.   He encountered Susan in the “laundry room/kitchen area,” where she told him that she was going out for “three maybe four hours and [he] asked her where she was going and she said she was late and she had to go.”   She did not tell him where she was going and left without further incident.

When asked to describe “the tone of the conversation,” defendant rejected the interrogating officer's characterization of the exchange as a “conversation,” describing the interaction instead as something his wife said to him as she was walking out of the house.   He described her demeanor as “[c]asual cordial” and denied that either one of them “screamed” or “hollered” at the other.   He admitted, however, that it was unusual for his wife to leave the house without telling him where she was going.   When asked:  “How did it make you feel when your wife told you that she was leaving for three or four hours and did not tell you where she was going,” defendant responded:  “Concerned ․ I don't know if she didn't want to tell me or if she was in too much of a rush to tell me.   But I was concerned.”  (Emphasis added).

The next and last time defendant saw his wife alive was at approximately eight o'clock that same night.   He gave the following description of the encounter:

About 8:10 [p.m.] is when my wife came home and that is when I asked her where she was and [told her] that I was concerned and that the car got stuck the other day, and you should have told me where you were [']cause I was concerned.   She said I don't have to tell you where I was, I don't ask you where you go.   I said yes you do and I always tell you.   What I didn't tell you [before] was when she came in she was agitated so I don't know where she was or what transpired but she was very agitated when she came back.   She said she wasn't in a good mood and I said could you tell me why, what happened, where did you go.   And then what I said before, I went backwards I put one thing in front of the other.

[ (Emphasis added).]

When asked to explain how his wife was agitated, defendant simply responded:  “By the way she was putting her stuff [like her jacket and notepad] down.”

Defendant described his relationship with his wife as “cordial” and “friendly.”   By contrast, he described his marriage as “strained” and not “as close as we used to be.”   The following exchange illuminates this point:

What has separated you and your wife that you are not as close as you used to be?

Good question.   I think it was on her part, it was an accumulation[.]  She said in the past (sic).   I spent twenty[-]five years in one firm, and it was a merger and the other firm took control and for the past year and a half[,] two years I have been very depressed over the fact that people that I have worked with for twenty years have been let go, the management, the people don't know the business.   They are trying to run it, they don't understand it.   It wasn't a happy time.   So what I mean is by it was not a happy time for me is that I might have neglected my wife [']cause I was focused on that.

What are the sleeping arrangements between you and your wife?

For about a month we have been in separate beds in separate parts of the house.

When asked what led him to think that his wife was “missing,” defendant indicated that he noticed that her car was not parked in the garage and that she was not otherwise in the house.   Thereafter, following the advice of the officer who responded to his 911 call, he followed his morning routine.   Defendant took his daughter to school at approximately 7:30 a.m., returned home therefrom at about 8:20 a.m., and “drove around [for about 45 minutes] but stayed home most of the day.”

He called his wife's cell phone two or three times in the early afternoon hours.   When asked why he did not call his wife on her cell phone before calling the police, defendant responded that he was “in shock that she wasn't there and I just thought that if she wasn't there it can't be good.”  (Emphasis added).   When asked to clarify what he meant by this, defendant stated:

She has never been out of the house, never, in the morning, never not seen her or her car whatever.   I don't know, I wasn't thinking straight.   I thought, I don't know what I thought.   I was in shock.

In response to questions regarding the argument he and his wife had the night before her disappearance, defendant indicated that his daughter was awakened because “[w]e were getting so loud.”   He told her to go back to sleep and he and his wife returned to the “laundry room/garage.”   Although he did not remember whether the garage overhead doors were open, he recalled that he could see “the light from the street.”

There was a one minute break at this point in the interrogation, from 5:43 p.m. to 5:44 p.m. When the interrogation resumed, the police refocused the conversation on evidence concerning Susan's activities.   According to defendant, the spare bedroom appeared unused, thus leading him to think that his wife had not slept there during the night.   As to her personal items, although defendant did not know whether any of her toiletries had been taken, her pocketbook, which held her credit cards, was missing.

The interrogation next focused on the stability of the marriage.   According to defendant, his wife voluntarily told him that she was not seeing anyone else.   When asked whether his wife had ever asked him for a separation or divorce, defendant responded:  “She says she needs her space.   Those are her words, never said separated or divorce.”   When asked whether he or his wife had seen or consulted with an attorney, he said:  “I haven't, my wife said she wanted to speak to somebody just to find out any implications about buying another house.”   He assumed that the reference to “seeing somebody” meant consulting with an attorney.   With respect to their daughter, defendant indicated that they had discussed a joint custody arrangement.

Despite the fact that he and his wife had been sleeping in separate bedrooms and were discussing issues such as child custody and maintaining separate residences, defendant claimed that “[f]or the past couple of weeks things have been getting nice again.”   He further stated that “[u]p until a month ago I thought everything was good.”   Overall, defendant denied ever physically assaulting his wife and denied having any knowledge of what could have caused her disappearance.

At the end of the interrogation, the police gave defendant a printed copy of the statement, asked him to review it and initial each page, and requested that he sign the affirmation indicating that “the facts contained herein are true.”   Defendant read the statement as requested, but he initialed only pages 1-7 of this seventeen page document;  he also refused to sign the affirmation, writing instead:  “I'm not comfortable signing all of the pages or the end without an attorney present.”

As the detectives were leaving his home, defendant suddenly said:  “I think my wife was abducted at 5:30 this morning while going to Welsh Farms to get milk.”   According to Veprek, defendant also asked how they “were making out” on the burglaries that had occurred on Goldsmith Drive.   Smythe replied that an investigation was underway and that an arrest was expected soon.   Defendant then stated that during the summer, someone had tried to break into his house and perhaps Susan's disappearance was tied to that alleged incident.   When Smythe asked him why he had not mentioned these things before, defendant replied that he did not think that they were important.

C

Veprek and Smythe returned to the Calleia residence at 3:20 a.m. on October 22, 2005, with a warrant to search the premises.   They were accompanied by other detectives from the prosecutor's office, patrol officers and detectives from Holmdel, and personnel from the New Jersey State Police Laboratory.   When defendant opened the door, he was wearing the same long-sleeved white shirt he had worn the previous day.   He kept both of his hands inside the sleeves of the shirt or in the pockets of his sweatshirt.   Veprek and Smythe accompanied defendant to wake his daughter and take her to a neighbor's house.   Defendant returned home and stayed there throughout the search;  he was accompanied at all times by Veprek and Smythe.

At one point, defendant asked Veprek if he could change his clothes.   Veprek advised him that he had to escort him to observe that nothing was tampered with or removed.   Veprek and defendant went into defendant's bedroom closet while Smythe stood in the doorway.   Veprek took out the clothes that defendant requested and handed them to him.   When defendant reached out to take the clothes with his right hand, Veprek and Smythe observed that his right hand was badly swollen and had a large cut just below the middle knuckle of his middle finger.   In response to Veprek's question about the injury, defendant indicated that he received it when he had punched a wall in his house during the argument with his wife the night before her disappearance.   According to Smythe, when he asked defendant to show him the wall so that the police could “properly document that and have it photographed and videotaped,” defendant “[f]or the first time with (sic) our interaction he looked up and stared at [the detectives] for a good five seconds ․ [t]hen he looked back down at the ground.”   At this point, Smythe commented to defendant that the injury “looked like it was from someone's teeth.”   Both Smythe and Veprek testified that defendant then said the following:

I want to recant what I just told you ․ I backhanded Susan in the face on Thursday night in the garage.   That is why she left the residence and did not return ․ I want to recant that ․ I went to hug Susan and she bit me on the hand.

When Veprek asked defendant why, if in fact Susan had bitten him, there was only one set of teeth marks on his hand and not two, defendant put his head down and did not say anything further.

Defendant signed a consent form allowing the police to photograph his right hand, and although he refused to do so in writing, he verbally consented to the taking of a buccal swab of the injury.   Thereafter, at defendant's request, Veprek and Smythe drove him to a hospital to be treated for the injury to his hand.

D

At 11:53 a.m. on October 22, 2005, police located a vehicle matching the description of Susan's Lexus SUV in a remote area behind the PNC Arts Center.   The patrol officer who found the vehicle looked inside and saw what appeared to be a discolored female hand sticking out from under a mat in the back cargo compartment.   Veprek, Smythe, and a team of forensic investigators and other law enforcement personnel responded to the scene.

The vehicle was locked and the keys were inside on the front seat.   When the police broke into the back hatch of the car, they discovered Susan's body in the cargo area covered by a pink yoga mat.   According to Veprek, there was extensive bruising and trauma to her face and a pool of blood under her head.   She was wearing socks, a red sweater, and an unfastened bra.   Her boots, black pants, and underpants were found inside the cargo area next to her body.

Later that afternoon, Veprek and Smythe took a statement from the Calleias' next-door neighbors, Frederick and Marilyn Baxter.   According to Mrs. Baxter, at about 8:15 on the evening before Susan was reported missing, she was in her driveway when she heard screams coming from the Calleias' garage.   Although she recognized Susan's voice as the person screaming, she could not discern whether any words were said.   Mrs. Baxter characterized the screams as “blood-curdling.”   At her request, her husband telephoned the Calleias and left a message on their answering machine.   He never received a call back.

Dr. Frederick DiCarlo, an assistant medical examiner with the Monmouth County Medical Examiner's Office, performed the autopsy on the morning of October 23, 2005.   According to Dr. DiCarlo, Susan was not suffering from any natural disease or physical abnormality at the time of her death.   An examination of her body revealed that she received traumatic injuries to her head, neck, chest, arms, and legs.   There was no evidence, however, that she had been sexually assaulted or of sexual activity prior to her death.   Dr. DiCarlo opined that the immediate cause of Susan's death was manual strangulation; ²  if she had not been strangled, Dr. DiCarlo believed that the blunt force trauma to her head would have resulted in death within a short time.   In Dr. DiCarlo's opinion, the hemorrhaging that occurred around Susan's head injuries indicated that she was beaten for about fifteen or twenty minutes before she was strangled.   He estimated the time of death as 9:00 p.m. on October 21;  he admitted, however, that her death could have occurred at any time between 4:00 p.m. and midnight.

II

At trial, the State presented testimony from law enforcement officers involved in this case, who in turn identified and narrated numerous videotapes, photographs, and slides of defendant's residence, the crime scene, and a photograph of defendant's injured hand.   These witnesses also testified at length concerning the methods used to collect forensic evidence from the Calleia home, the Lexus SUV, the crime scene, and decedent's body.

The State also introduced records from the Calleias' home phone, defendant's cell phone, and Susan's cell phone, showing all activity between October 19 and October 23, 2005.   Susan's cell phone records indicated that she placed an outgoing call to a law firm on October 20.   The last outgoing call from her phone, made at 7:17 p.m. on October 20, was to the Beacon Hill Country Club. The records showed an incoming call at 6:24 a.m. on October 21 from the Holmdel Police Department.   There were also many other incoming calls that morning from the police and from Susan's friends.   The first calls from defendant's cell phone and home phone to Susan's cell phone were placed at 12:47 p.m., one call was placed from each phone within a minute of each other.

EZ-Pass records for Susan's car showed that her car was at the Union toll plaza on the Garden State Parkway at 7:01 p.m. on October 20, 2005.   The car then passed through tolls at the Goethals Bridge and Exit 11 of the New Jersey Turnpike.   The last EZ-Pass transaction showed that Susan's car exited the Garden State Parkway at the Matawan toll plaza at 8:05 p.m. The State also introduced evidence obtained from defendant's home computer and laptop.   Forensic examination of these computers revealed that in early October 2005, defendant set up an account on the “American Singles” website under the pseudonym “Lancelot7” and viewed postings from several different women.   There were also e-mail messages to his cousin during this period in which defendant wrote that he was “going through some tough times.”   He also wrote that “[t]here is a possibility it may all work out, time will tell.”   On October 17 and 18, 2005, defendant's laptop was used to display information about an attorney who practiced matrimonial law.   Finally, in mid-October defendant composed several drafts of a letter to his wife in which he expressed his feelings for her and said that he wanted to reconcile.   This letter was read aloud to the jury in its entirety.

As part of its case-in-chief against defendant, the State called a number of witnesses who testified at length about Susan's activities and statements she made to them concerning the stability of her marriage to defendant in the summer and fall of 2005.   Eileen Hansen, who had known Susan for three years, testified about conversations she had with decedent in late July 2005.   According to Hansen, Susan told her that she had decided to divorce defendant.   Toward that end, Susan telephoned several divorce attorneys from Hansen's house and used Hansen's copying machine to copy defendant's financial documents.   Susan told Hansen that defendant did not want a divorce, but was not against being legally separated.   Hansen testified that Susan thought that in such a scenario, defendant would keep the house, buy a townhouse for her, and take care of her expenses because “[t]hat way they wouldn't have to split all their money.”

Lori Boxer also had been friends with Susan for several years.   She testified that about five or six months before her death, Susan's demeanor changed;  Susan told Boxer that she was unhappy and wanted to get out of her marriage.   According to Boxer, sessions with a marriage counselor that defendant had chosen did not change Susan's mind about ending her marriage.

Kathryn Jill Congiusta testified that she saw Susan on a daily basis from August 2005 until her death.   According to Congiusta, Susan was depressed and upset during that time.   She told Congiusta that it was over between her and defendant and that she wanted a divorce.   Congiusta suggested that Susan talk to some attorneys and even gave Susan $500 to pay for consultations.   Susan kept a file folder at Congiusta's house that contained bank statements, legal documents, and medical records.   Congiusta testified that on the day before her death, Susan asked her if she was interested in going with her to a seminar in Summit entitled:  “Everything You Want to Know About Divorce But Were Afraid to Ask.” When Congiusta said that she had other plans, Susan telephoned the office of the attorney sponsoring the seminar to get driving directions.   According to Congiusta, Susan seemed confused and did not understand the directions.   She left Congiusta's house at about 5:00 p.m., wearing a red knit top and a pair of slacks.

Debbie DiGiaro was a real estate agent who knew Susan because their children attended the same school.   DiGiaro testified that on October 7, 2005, Susan asked her for information on townhouses for sale in Holmdel.   They met at a property on October 10, 2005, at which time Susan told DiGiaro that she was getting divorced and she needed to find a place for herself and her daughter to live.   When DiGiaro telephoned her on October 17, 2005, Susan allegedly told her that although she was still interested in finding a townhouse, it might be a little while before she could actually relocate.

Jerry Maiorani owned a townhouse in Holmdel that he was trying to sell privately.   He testified that on October 16, 2005, he showed the property to defendant, Susan, and their daughter.   They appeared interested in the house and defendant told Maiorani that he would get back to him.

The State called three attorneys, all specializing in matrimonial and family law, to testify about conversations they had with Susan in the context of a legal consultation.   Attorney Richard Reich met with Susan on July 28, 2005.   According to Reich, she told him that she and defendant had been married for twelve-and-a-half years, the fair market value of their house was $1.4 million, and their present mortgage balance was $75,000, leaving a possible equity of $1,325,000 in the house.   Decedent allegedly told Reich that defendant's income in 2004 was $417,000 and that they had numerous assets in the form of pensions, bank accounts, and stocks.   Based on this information, Reich told her that she would likely be entitled to a large part of the marital estate and substantial alimony payments.   Susan paid Reich's consultation fee but did not sign a retainer.

Attorney Mario Gurrieri met with Susan on August 11, 2005.   She provided him with the same information she had given to Reich;  Gurrieri likewise informed decedent that she would be entitled to a substantial alimony award plus half of the marital estate.   She paid Gurrieri's consultation fee in cash and did not pay a retainer.   Gurrieri placed a follow-up call to Susan in September, at which time she allegedly informed him that she was accumulating financial documents for his review.   Gurrieri invited her to attend a divorce seminar he was presenting at the Beacon Hill Country Club on October 20, 2005.   According to Gurrieri, although Susan expressed an interest in attending the seminar, she did not attend.

Attorney Laura Witherington met with Susan on October 12, 2005.   She provided Witherington with financial statements and tax returns to review.   Based on the information in these documents, Witherington advised Susan that she would be entitled to a large alimony award, probably in excess of $100,000 per year, and a fifty percent share of the marital assets.   Susan paid Witherington's consultation fee by check;  she did not pay a retainer.

The State concluded the factual aspect of its case by calling a number of witnesses who testified about the travel times and distances between certain points.   Detective Smythe testified that the driving distance between the location where Susan's vehicle was found and her home was approximately two miles.   Eric Anderson, the Geographic Information Systems coordinator for Monmouth County, stated that he measured the straight-line distance between the two points as 1.5 miles.   Detective Sergeant Albert DeAngelis introduced a videotape of the route from the location where decedent's body was found to the Calleia house.   According to DeAngelis, the odometer reading reflected 2.3 miles.

In his defense, defendant presented testimony from his daughter Ana, who was ten years old at the time of trial.   Ana recalled lying awake in her bed on the second floor when her mother arrived home on the night of October 20, 2005.   Although she could not discern the words that her parents actually spoke, Ana heard her mother screaming “pretty loud”;  she decided to walk downstairs to the kitchen to find out what was taking place.   When she reached the kitchen area, Ana saw her mother and father walking quickly into the garage.³  Her mother walked in first, still screaming, followed by her father.   Although Ana had seen her parents argue before, she had never heard her mother scream so loudly.   Throughout this experience, the child characterized the voices, especially her mother's voice, as simply “screaming”;  she was unable to discern from these “screams” the words used by her parents.

After seeing her parents walk into the garage, Ana walked into the laundry room and placed herself in a position where she could “peek” into the garage.   From this vantage point, Ana was only able to see her father.   She heard her father's voice, which she agreed was “in the middle between calm and shouting,” and her mother's voice, which was still “kind of” screaming.   Ana then saw her father “trying to hold her [mother's] shoulders, so she could calm down.”

According to the child, when her father saw her in the laundry room, he spoke to her in a normal tone of voice and said:  “What are you doing?  ․ You have to go to bed.”   Her mother stopped screaming at this point and Ana did not hear her voice again.   Ana then retuned to her bedroom as her father instructed;  a few minutes later she heard her father laughing at the television in the family room.   Breaking from her usual routine, her mother did not come upstairs to tuck her into bed that night.

Defendant also called Dr. Mark Taff, a forensic pathologist, who disagreed with Dr. DiCarlo's estimate of Susan's time of death.   Dr. Taff opined that the autopsy findings were consistent with a time of death between 7:00 a.m. and 8:00 a.m. on October 21, 2005.   He also believed that Susan's death might have been caused by a chokehold that resulted in rapid asphyxiation.   Dr. Taff agreed, however, with Dr DiCarlo's conclusion that Susan suffered the blunt force trauma injuries some time prior to being strangled and that her manner of death was homicide.   Finally, defendant called a licensed private detective who documented the shortest distance between the Calleia residence and the location where Susan's body was found as 2.2 miles.

The jury was also advised of the results of forensic analysis of other physical evidence collected during the investigation.   Specifically, toxicology screens detected no illicit drugs, prescription drugs, non-prescription drugs, or alcohol in decedent's system;  no usable fingerprints were found on the SUV or on any item inside the vehicle;  and none of the evidence collected at the house or at the site where decedent's body was found contained blood or hair that could be traced to defendant or decedent.⁴

III

Against these facts, defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT ERRED IN DENYING VARIOUS PRETRIAL MOTIONS OF THE DEFENSE AND FURTHER ERRED IN ALLOWING MISUSE OF THE RESULTING EVIDENCE THAT WAS INTRODUCED AT TRIAL.

(a) The Trial Court Erred In Admitting Extensive Hearsay Statements Of Susan Calleia And Allowing The Prosecution To Use Same As Alleged Proof Of Defendant's Motive To Commit The Homicide Of Mrs. Calleia.

(b) The Trial Court Erred In Denying The Defense Motion To Bar The Y[-]STR DNA Evidence After The Conduct[ing] Of A N.J.R.E. 104 Hearing As The Y[-]STR DNA Result Was Not Probative And Did Not Satisfy the Frye 5 Standard For Admission And The Ultimate Opinion Was Not Admissible, Because There Was No Level Of Scientific Probability Of Certainty.   This Error Allowed Improper Testimony Before The Jury And An Improper Summation That The Y[-]STR DNA “Matched” Defendant When In Fact No Such Opinion Could Be Given By The Expert.

(c) The Trial Court Erred In Denying The Defense Motion To Compel Discovery Of The Burglaries On Goldsmith Drive That Defendant Mentioned In His Statement To Police And Then Compounded That Error By Allowing The State To Elicit Testimony About Said Burglaries During The Trial.

(d) The Trial Court Erred In Denying The Defense Motion To Suppress The Defendant's Statements.

(e) The Trial Court Erred In Denying The Defense Motion To Suppress Certain Physical Evidence.

POINT II

THE TRIAL COURT COMMITTED VARIOUS ERRORS DURING THE TRIAL THAT DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL OF THE CONVICTION

(a) The Trial Court Erred In Allowing The Police Witnesses And Prosecutor To Comment On Defendant's Pre-Arrest/Pre-Trial Silence Even Though He Did Not Testify At Trial.

(b) The Trial Court Erred In Allowing The Police Witnesses To Comment On Defendant's Credibility Based Upon His So-Called Demeanor During Their Interrogation Of Him.

(c) The Trial Court Erred In Allowing The Prosecutor To Cross-Examine AC, The Defendant's Daughter, And Elicit That Susan Calleia Attended Church Regularly And Defendant Did Not Attend Church With Them.

(d) The Trial Court Erred In Improperly Denying Defense Counsel's Cross-Examination Of The State's Rebuttal Witness And Then Improperly “Shouting Down” Defense Counsel In Front Of The Jury In An Effort To Demean The Defense To The Prejudice Of The Defendant's Trial.

POINT III

THERE WERE VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT THAT DENIED DEFENDANT A FAIR TRIAL AND REQUIRE REVERSAL OF THE CONVICTIONS.

(a) The Prosecutor Committed Misconduct In His Opening Statement, During His Cross-Examination Of AC And During Summation By Improperly Referring To Victim-Impact Evidence In Contravention Of Clear Case Law.

(b) The Prosecutor Committed Misconduct In His Summation By Repeatedly Telling The Jury That Defense Counsel Had Tried To “Fix” Testimony In An Attempt To Attack And Demean Defense Counsel And The Trial Court Erred In Failing to Stop Him Requiring Reversal Of The Conviction.

(c) The Prosecutor Committed Misconduct During summation By Commenting On Evidence Outside The Record In Using A Stopwatch To Testify As To A Time Period And By Improperly Speaking to Defense Counsel And Saying, “Hold The Watch” In Response To Objection By Defense Counsel, As Well As Saying “He Could Have Done Like Hobbie,” All Of Which Occurred In Front Of The Jury.

(d) The Prosecutor Committed Misconduct During His Summation By Claiming 1) That Defendant Suffered From A Psychological Disorder Commonly Refereed To As “Obsessive” Behavior Without Any Evidential Basis To Do So From Expert Testimony, 2) That The Y[-] STR DNA “Matched” Defendant Without Evidential Support, And 3) That A Mark On The Defendant's Hand Was A Scratch Made During The Choking Of His Wife, Even Though He Knew That His Experts Had Said That It Was A Bite Mark. He Had No Good Faith Basis To Make Such A Comment In View Of His Own Experts' Opinions, Which Experts Were Not Produced At Trial.

(e) The Prosecutor Committed Misconduct By Improperly Referring To Punishment With His Repeated “Day Of Reckoning” And “Justice Is Coming” Comments And By Playing Stare Down With Mr. Calleia While Thrusting A Finger In His Face In An Attempt To Demean The Defendant.

POINT IV

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V

THE CUMULATIVE ERROR COMMITTED IN THIS CASE REQUIRES THE REVERSAL OF THE CONVICTIONS AND SENTENCE.

POINT VI

THE SENTENCE IMPOSED IN THIS CASE WAS EXCESSIVE.

We will first address what we deem to be the dispositive issue in this appeal, namely, the admission by the trial court of hearsay statements attributable to the victim concerning her desire and intention to terminate her marriage with defendant.   Defendant argues that the court committed reversible error in admitting this evidence and that such error was compounded when the prosecutor argued in his summation that defendant did not want Susan to pursue a divorce in order to keep his estate intact.   According to defendant, the trial court reinforced the prejudice caused by the introduction of this evidence by erroneously charging the jury concerning its proper use.

This issue was presented to the trial court by way of defendant's in limine motion to suppress.   After hearing from counsel on the issue, the court entered an order permitting testimony in the form of statements attributable to decedent pertaining to:  (1) her desire to obtain a divorce;  (2) her unhappiness in her marriage;  (3) contacts she had with and statements she made when seeking advice from matrimonial attorneys related to pursuing a divorce;  and (4) her plans to attend a divorce seminar on the night of October 20, 2005.

The court also gave the following instructions to the jury as part of its general charge on the law:

You have heard testimony from witnesses about statements Susan Calleia made to them concerning unhappiness in her marriage to the defendant George Calleia and her intention to seek a divorce from the defendant.   These statements can only be considered by you for two purposes.   One, as evidence of Susan Calleia's state of mind, her plans and intentions.   And, two, as evidence of the nature of the relationship between Susan Calleia and the defendant to show that a relationship was not inconsistent with [the] commission of homicide.

The State has taken the position that Susan Calleia's estrangement from the defendant, her plans to divorce the defendant and the defendant's knowledge of Susan Calleia's plans were motive for the defendant to kill Susan Calleia.

The defense denies that the defendant George Calleia had any such motive.   As I will instruct you in another part of my charge, the State is not required to prove a motive ․ If the State has proven the essential element of the offense beyond a reasonable doubt, the defendant must be found guilty of that offense regardless of the defendant's motive or lack of motive.

If the State, however, has proved a motive, you may consider that insofar as it gives meaning to other circumstances.   On the other hand, you may consider the absence of motive in weighing whether or not the defendant is guilty of the crime charged.   You may use Susan Calleia's statements only as proof of Susan Calleia's state of mind and as proof of the state of the relationship generally as I have previously explained.   Nothing more.

To determine the defendant's state of mind and motive, you may consider the nature of the defendant's acts and his conduct, and all he said and did during the pertinent timeframe and from the surrounding circumstances.   For instance, the letter ․ allegedly written by the defendant to his wife, was admitted and you are allowed to hear it on the issue of defendant's state of mind.

If you find that he wrote the letter, you may consider it on the issue of whether or not there was a motive to kill his wife.   Defendant's motive if any to kill his wife because of the breakdown of the marriage and any impending divorce must be developed from evidence independent of the decedent's statements concerning the nature of the relationship.

According to the State, these statements were admissible because they established the relationship between defendant and decedent and the court clearly explained the permissible use of this evidence to the jury.   Alternatively, the State argues that even if the statements were improperly admitted, the error was harmless in light of other admissible evidence of decedent's unhappiness in her marriage.

Although in response to this appeal the State correctly notes that hearsay statements by a victim cannot be used to establish a defendant's motive, the State took a different position before the trial court.   As the trial judge succinctly stated:

In this case, the State seeks to introduce testimony from several witnesses relevant to the victim's desire to divorce the defendant and the fact that the defendant apparently did not want a divorce.

The State takes the overall position that the pending prospect of divorce and the monetary consequences of divorce constituted a motive for the defendant to kill his wife, Susan Calleia.

The trial judge's assessment of the State's position was not only accurate, but proved to be prescient, as the following excerpt from the prosecutor's summation to the jury shows:

Motive. The judge is going to tell you when he reads you the charge at the end of my closing today, we don't have to prove, the State doesn't have to prove motive, but we did.   And we brought one to you to help explain and put into context what was going on back in 2005 with Susan and George Calleia.

The motive was simple.   Susan wanted a divorce and wanted to be on her own away from the defendant and the defendant didn't want that.   And as it has been proven, yes, it should help you in coming to a conclusion in this case.   There's reasons for wanting the divorce.   They are also instructive as to what was going on and why things went the way they did back in October of 2005.

The defendant didn't want Susan to stay because she was Susan;  he wanted to keep intact his estate.   And what's the evidence of that?   Well, one, that letter that was referred to as a love letter which I suggest to you was one that he wrote and rewrote and rewrote and revised and deleted and revised and renamed and revised and deleted again, and this Sunday afternoon internet surfing on singles websites, suggests to you that it wasn't about Susan, it was about George.   He didn't care about her.   He cared about his assets.

And then another instructive thing that came out actually on cross was the statement of Eileen Hansen.  [Defense counsel] asked her the question.   Weren't you asked this question and gave this answer in your statement?   And I'll read it to you.

Question to Eileen Hansen:  Did George offer to buy Susan a house after he believed they had a irreconcilable differences [sic]?   The question that he read.

Eileen Hansen's answer:  He thought instead of getting a divorce, a divorce, they should be legally separated so he would keep the house and he would buy her a townhouse or condo to live in and he would pay for it.   That way they wouldn't have to split all their money.   He would just take care of all the expenses.   But he's not a controller.

And this makes sense from his perspective, too, because there's no division of assets.   He gains an asset.   He has to spend some cash but he gains an asset in the condo and he can control what his wife does because he's paying the expenses.   He's got it all in his hands but he's not controlling.

And the problem, what was happening back then is that as I said apparently in my opening that this was escalating.   That she had gone to see [attorney] Richard Reich.   She had gone to see [attorney] Mario Gurrieri.   She had gone to see [attorney] Laura Witherington and things were getting closer.   They asked Jill Congiusta on cross and she said she was going to give him a retainer that night.   Mario.  On her way to the seminar to see [attorney] Mario [Gurrieri].   That she didn't care anymore if he knew what she was doing in terms of lawyers.   That explains the check to Laura Witherington on a joint account.   That explains her not caring about writing a check to Mario Gurrieri that night as Jill Congiusta said she was going to do.   She didn't care anymore and he knew that.

[ (Emphasis added).]

The prosecutor's summation was predicated on the testimony of five witnesses called by the State, three attorneys and two of Susan's friends, who testified extensively about decedent's alleged intentions and desire to terminate her marriage to defendant.   Given the number of witnesses called and the length and detail of their testimony, we cannot but conclude that this testimonial evidence was likely viewed by the jury as a significant part of the State's case against defendant.

We are satisfied that the admission of this evidence warrants the reversal of defendant's conviction.   The trial court's characterization of these statements as “state of mind evidence” under N.J.R.E. 803(c)(3) was incorrect.   Given both the prosecutor's statements on summation and the self-evident character of the testimony presented, these hearsay statements had the clear propensity of being perceived by the jury as evidence of defendant's motive for allegedly murdering his wife.   As such, this evidence should have been excluded as part of the State's case-in-chief.

N.J.R.E. 801(c) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”   Here, it is not disputed that the statements that decedent made to her friends concerning her alleged intention to obtain a divorce are hearsay declarations.   As such, these statements are inadmissible unless they fall within one of the exceptions to the exclusionary rule.  N.J.R.E. 802.   The trial court's reliance on the “state of mind” exception in N.J.R.E. 803(c)(3) was misplaced because, as the record shows, the prosecutor used these statements as evidence of defendant's motive to kill his wife.

In Machado, the court specifically disapproved of the use of such hearsay evidence to establish a defendant's motive.  Machado, supra, 111 N.J. at 487-89.   That is, although a victim's statements may be admissible as background to establish the nature of the relationship between the victim and the defendant, a decedent's hearsay statements are not admissible to prove the defendant's motivation or conduct.  Id. at 489.

In State v. Benedetto, 120 N.J. 250, 255 (1990), the Court revisited the “state of mind” exception.   The Court reaffirmed that this exception permits the admission of extrajudicial statements “to show the state of mind of the declarant when it is at issue in a case” and “to show the declarant's intent to act in the future, when the occurrence of that act is in dispute.”  Id. at 255-56.   Here, the predominant purpose in admitting the victim's hearsay statements was to establish defendant's motive for killing his wife.   As the record shows, the victim's state of mind concerning the floundering state of the parties' marriage was not genuinely in dispute.

Defendant admitted that he was having marital difficulties to the police officers who investigated this case.   During a detailed, seventeen page question-and-answer statement, defendant admitted that he and his wife slept in separate rooms, had become emotionally estranged, and had discussed ending their marriage.   Through independent competent evidence, the State established that defendant:  (1) placed his name on a “singles” website under a pseudonym;  (2) communicated to his cousin that he was having marital problems;  and (3) admitted that his marriage was in serious trouble in a letter intended to be read by his wife.   Thus, there was sufficient competent evidence to establish the “mosaic” of the parties' relationship without resorting to inadmissible hearsay statements.

We addressed this precise issue in State v. Dreher, 251 N.J.Super.   300 (App.Div.1991), certif. denied, 127 N.J. 564 (1992).   The defendant in Dreher was convicted, inter alia, of murdering his wife.  Id. at 302.   The crime was discovered when the defendant called the local police to report a burglary of his home.  Id. at 303.   Minutes later, the defendant again called the police to report finding his wife's lifeless body.  Ibid. The victim died of strangulation and was also stabbed multiple times.  Ibid. Similar to the facts here, the State in Dreher called a number of the victim's friends to testify about statements the victim allegedly made concerning her marital problems with the defendant.  Id. at 316.   Similar to this case, the State argued in Dreher before the trial court that “the testimony was admissible to show [the] defendant's motive to commit the murder.”  Ibid. When the trial court in Dreher pointed out that the State was proposing to do what the Court in Machado said it could not do, “the State altered its position to argue that it should properly be allowed to show the relationship between [the] defendant and [the victim] as part of the ‘mosaic’ against which the killing must be judged.”  Id. at 316-17.   The trial court in Dreher then admitted the hearsay for this alleged limited purpose.  Ibid.

In reversing the trial court, we reaffirmed the principles established by the Court in Machado:

It is settled that a decedent's hearsay statements are not admissible to prove the defendant's motivation or conduct, and convictions have been reversed where such statements were admitted ․ [W]e noted three well-defined exceptions in which a victim's hearsay statement concerning his state of mind have been admitted.   These apply (1) where defendant asserts a claim of self-defense as justification for killing, (2) where defendant seeks to defend upon a claim that the deceased committed suicide and (3) where defendant asserts that decedent died as the result of an accident.

[Dreher, supra, 251 N.J.Super. at 317-18. (internal citations omitted).]

The Dreher court explained that statements attributable to the decedent concerning the “foundering state of the marriage” may be deemed admissible “as background to establish the nature of the relationship between the victim and the defendant.”  Id. at 318 (internal citation and quotation omitted).   As is the case here, the Dreher court noted that the poor state of the marriage was not disputed.  Ibid. The victim's statements concerning her intent to leave the defendant fell into the category of inadmissible evidence because they showed the defendant's motive for the killing.  Ibid. The panel noted that, absent such inadmissible evidence,

all that the State would have been able to urge as a reason for the killing was the fact that defendant was mired in an unhappy marriage.   Nothing in the evidence suggests that he committed the crime in order to marry [the defendant's mistress].   It does not even appear that the subject of marriage was ever discussed between them.   Thus, from all appearances, although this was not a healthy marriage, defendant had his home, his family, his affluence and the luxury of a mistress.   Within such a context it is entirely conceivable that a jury would be unable to discern a plausible reason why he would heartlessly slaughter the woman with whom, during their 15-year marriage, he had slept and eaten and raised two sons.   But the introduction of evidence that [the victim] planned to leave defendant transformed this ambiguous picture into one of perfect clarity.

[Dreher, supra, 215 N.J.Super. at 318-19.]

Similar to the State's position in Dreher, the State here argued before the trial court for admission of statements attributable to the victim to show defendant's motive for killing his wife.   Toward that end, the State called five witnesses, three of whom were attorneys with which decedent allegedly consulted concerning the legal and financial ramifications of terminating her marriage to defendant.   This hearsay evidence should have been excluded under the standards we identified in Dreher.   Further, as in Dreher, the prejudice to defendant is overwhelming.

This evidence gave the jury license to conclude that defendant murdered his wife after she returned from a divorce seminar and confronted him with her intention to terminate their marriage.   Given the number of witnesses who testified about this topic, and the extent of their testimony, the prejudice caused to defendant could not have been successfully counteracted by the court's jury instructions.   It defies common sense to expect jurors to consider this evidence for anything other than establishing defendant's motive for killing his wife.   Under Machado, Benedetto, and Dreher, the only remedy available here is reversal of defendant's conviction.

IV

We expect that the State on remand will again seek to introduce Y-STR DNA evidence, which demonstrated that defendant could not be excluded as a donor of biological material recovered from under the victim's fingernails.   Defendant challenged the admission of this evidence as one argument in support of setting aside the jury's guilty verdict.   At oral argument before us, the State urged us to consider and affirm the trial court's decision to admit the Y-STR DNA evidence, even if we were to reverse defendant's conviction on other grounds.   The State argued that appellate approval of this scientific evidence will settle the question among the trial courts, at least until the Supreme Court decides otherwise.

Given the strong likelihood that this evidence will again emerge as a key part of the State's case against defendant, we will address the propriety of its admission by the trial court.

A

In a criminal case, we review a trial court's decision to admit novel scientific evidence by applying an expansive de novo standard of review that goes beyond the record developed before the trial court to account for and consider the latest and most reliable scientific developments in the field under review.  Harvey, supra, 151 N.J. at 167-68.   We are thus obligated to

scrutinize the record and independently review the relevant authorities, including judicial opinions and scientific literature ․ By reviewing post-trial publications, an appellate court can account for the rapid pace of new technology.   The continuing review also recognizes that general acceptance may change between the time of trial and the time of appellate review.   Moreover, by examining such additional information, an appellate court can prevent any injustice rendered by admission or exclusion of the evidence at the trial level.

[Harvey, supra, 151 N.J. at 167-68 (internal citations omitted).]

Generally, the admission of expert testimony is governed by N.J.R.E. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In order to be admissible under this Rule:

(1) the intended testimony 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.

[State v. Kelly, 97 N.J. 178, 208 (1984) (addressing Evid. R. 56(2) now codified as N.J.R.E. 702).]

Here, defendant does not challenge the State's expert's qualifications to offer testimony regarding forensic DNA testing, nor does he contend that the science of Y-STR DNA analysis is within the ken of the average juror.   The sole question before us is whether Y-STR DNA analysis has reached a level of development and acceptability within the relevant scientific community that an expert's testimony concerning it can be deemed sufficiently reliable.   Harvey, supra, 152 N.J. at 168.

Although in 1993 the United States Supreme Court abandoned the general acceptability standard in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) in favor of a more relaxed scientific reliability standard, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed.2d 469 (1993), codified in Fed.R.Evid. 702, the test in New Jersey continues to be whether the scientific community generally accepts the reliability of the proffered evidence.  State v. Chun, 194 N.J. 54, 91, cert. denied, _ U.S. _, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008);  Harvey, supra, 151 N.J. at 170.

General acceptability of a particular scientific methodology can be established in three ways:

(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;

(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony;  and

(3) by judicial opinions that indicate the expert's premises have gained general acceptance.

[Harvey, supra, 151 N.J. at 170 (quoting Kelly, supra, 97 N.J. at 210).]

The proponent of the evidence bears the burden to “clearly establish” each of these methods.  Harvey, supra, 151 N.J. at 170.

General acceptance does not require a unanimous belief in the absolute infallibility of the technology or methodology at issue.  Chun, supra, 194 N.J. at 91-92;  In Re Commitment of R.S., 173 N.J. 134, 136 (2002).   To meet this burden of general acceptability, the proponent of the evidence must prove that the technology is a “non-experimental, demonstrable technique[ ] that the relevant scientific community widely, but perhaps not unanimously, accepts as reliable.”  Harvey, supra, 151 N.J. at 171.  “It is reliability that must be assured.”  R.S., supra, 173 N.J. at 136;  see Kelly, supra, 97 N.J. at 210 (holding 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”).

B

Defendant argues that the trial court erred in admitting the Y-STR DNA evidence because that evidence lacked probative value and did not satisfy the standard for admissibility established by Frye. According to defendant, the error was compounded by the State's expert, who opined that the Y-STR DNA profile obtained from biological material found under the victim's fingernails “matched” the profile obtained from defendant's reference sample.

In rebuttal, the State argues that the reliability of Y-STR DNA evidence has been established by its general acceptance in the forensic science community, in scientific and scholarly literature, and in other court proceedings.   Although prior to this case no court in this state has addressed the admissibility of Y-STR DNA evidence, the State maintains that Y-STR analysis has been used in criminal trials in other states and in Canada.

The trial court first considered the admissibility of the State's scientific evidence in a N.J.R.E. 104 hearing outside the presence of the jury.   The only witness who testified at this hearing was called by the State.   The trial court admitted Edward J. LaRue, the Assistant Director of the New Jersey State Police DNA Laboratory, as an expert in the field of DNA analysis.   LaRue testified that Y-STR DNA testing uses exactly the same methodology as STR DNA testing and is closely related to a number of DNA testing methods that have been accepted in judicial proceedings.   The following scientific discussion is derived entirely from LaRue's testimony.   We refer to that testimony at length here as a basis from which to assess whether the State satisfied the first prong under the Harvey test:  whether expert testimony can establish the general acceptance of Y-STR DNA testing.  Harvey supra, 151 N.J. at 170.

General DNA Testing

The nucleus of a human cell contains twenty-three pairs of chromosomes.   Chromosomes are tightly wound structures of deoxyribonucleic acid (DNA), a double-stranded molecule that is configured like a twisted ladder.   The “rungs” of the DNA ladder form when a nucleotide or “base” on one strand binds to a base on the opposite strand.⁶  It is the combination of these bases that creates the entire inherited genetic code.

More than ninety-nine percent of human DNA is the same from person to person.   Because the human genome consists of approximately 3.2 billion base pairs, however, even the small percentage of variation results in a large number of base pairs that differ between individuals.   Due to the large number of possible base-pair combinations, each individual, with the exception of identical twins, has a unique genetic code.   A locus is a specific spot or position on the chromosome.   If the locus is responsible for producing a particular protein, it is referred to as a gene.   If the locus does not produce a protein, it is referred to as “non-coding DNA.” Forensic science focuses primarily on the non-coding areas of DNA because that is where the most variation is found.

Since the early 1990s, scientists have used a technique known as polymerase chain reaction (PCR) to prepare a DNA sample for study.   PCR is a method of multiplying a small amount of DNA in order to make a sufficient quantity to be detected by instrumentation.   PCR amplification involves:  heating the DNA solution to denature the double helix and create a solution of single-stranded molecules;  adding a “primer,” which is a short sequence of DNA base pairs intended to adhere to specific loci on the strands;  and adding an enzyme that “reads” each strand and uses it as a template to build a new strand that is an exact copy of the original.   The cycle is then repeated in a chain reaction that can make billions of copies of the original DNA sample.   PCR was found to be scientifically reliable and hence admissible in a criminal proceeding in Harvey, supra, 151 N.J. at 160-61, 183.

One type of DNA testing that uses the PCR method is short tandem repeats (STR) analysis.   A short tandem repeat is a non-coding area of DNA that has repeating sequences of nucleotides.   Differences can be seen between individuals depending on the number of times a nucleotide sequence is repeated at a given locus.   Thirteen core loci have been identified by CODIS ⁷ for use in STR analysis.   These loci are differentiated from one another through the use of differently colored fluorescent tags that are attached to the primer during PCR amplification.   The tagged specimen is placed in a capillary filled with a polymer gel and inserted into an instrument known as a “genetic analyzer.”   When an electric current is placed across the capillary, the DNA migrates through the gel column.   Because short fragments climb faster than long fragments, a physical separation occurs.   When a fragment reaches the end of the capillary, a laser excites its fluorescent tag and creates a very specific signal that is detected by the instrument.   The signals obtained are represented on an electropherogram, which can be used to generate a DNA profile.

When loci on all twenty-three pairs of chromosomes are tested, the process is called autosomal STR DNA analysis.   Y-STR analysis, on the other hand, involves the testing of loci on only one specific chromosome:  the male “Y chromosome.”   Of the twenty-three pairs of chromosomes in a human cell, one pair is comprised of two “sex chromosomes” that determine whether a person is male or female.   In a female, both sex chromosomes are “X chromosomes.”   In a male, one sex chromosome is an “X chromosome” and one sex chromosome is a “Y chromosome.”   Thus, Y chromosomes can only be found in males.

Since the early 1990s, forensic scientists have been able to use specific short nucleotide sequences to differentiate the sex chromosomes from the other chromosomes and determine whether the DNA donor was male or female.   In 2003, forensic technology was markedly advanced when the full Y chromosome nucleotide sequence was established.   Since that time, over 200 different STR loci have been identified on the Y chromosome.

Y-STR DNA Testing

The Scientific Working Group for DNA Analysis Methods (SWGDAM) ⁸ has selected a core number of Y-STR loci for forensic examination.   Commercial kits are available that provide primers that specifically target these loci.   The State Police Laboratory uses the “Yfiler Kit” that is manufactured by Applied Biosystems, Inc.⁹ At all times, the Laboratory follows the SWGDAM guidelines for internal validations;  a validation conducted for Y-STR testing showed that the Laboratory used here was in compliance with the federal guidelines.

The analytical procedure followed in Y-STR DNA testing is identical to that followed in autosomal STR DNA testing.   The sample is extracted in the same manner, amplified by the PCR method, tagged with a primer, and detected in the genetic analyzer.   The data is collected and represented in exactly the same way.   The only procedural distinction is that the primer included in the test kit for Y-STR DNA analysis contains markers for the Y-STR loci specified by SWGDAM;  the primer included in the test kit for autosomal STR DNA analysis contains markers for loci on all twenty-three chromosome pairs.   The major difference between autosomal STR DNA analysis and Y-STR DNA analysis is in the interpretation and application of the test results.

An individual inherits his or her genetic code from his or her biological parents.   Specifically with regard to autosomal STRs, the frequency of repeat sequences found in an individual's DNA is the result of random combinations of the repeat sequences found in the DNA of his mother and father.   Because the mixing of the parents' DNA information is random and each loci is independent of the others, it is possible to mathematically calculate the probability that any individual will possess a specific DNA profile through use of the “product rule.”   This means that the probability that an individual will inherit a particular repeat frequency at locus one is multiplied by the probability that he will inherit a particular repeat frequency at locus two, which is multiplied by the probability at locus three and so on.¹⁰

The probability is extremely low, one in one quadrillion, that the STRs on all thirteen loci of two different individuals will “match,” i.e., that each corresponding locus will have the identical frequency of repeated nucleotide sequences.   For this reason, if a thirteen-loci ¹¹ autosomal STR DNA profile from a forensic specimen matches a profile generated by a sample taken from a particular individual, it is virtually certain that the individual was the source of the specimen.   Stated differently, if there is a full profile match, the probability that the specimen came from someone else is so remote as to be negligible;  identity is established.   Because autosomal STR DNA testing provides a high probability of identifying an individual as the DNA source, it is the preferred method of analysis.

Autosomal STR DNA analysis is problematic, however, when forensic scientists are confronted with a mixed DNA sample.   For example, blood stains found at a crime scene may be the result of bleeding by both the victim and the perpetrator.   An autosomal STR DNA profile generated from the stains will have a combination of both individuals' DNA patterns and it is not possible to attribute which traits go with which person.   Further, one individual's profile often overwhelms the other and renders it un-detectible.   When one individual is male and one is female, however, it is possible to perform a Y-STR DNA analysis and focus solely on the DNA of the male.   Thus, the strength of Y-STR DNA testing derives from the fact that only males have a Y chromosome.   Unfortunately, that fact is also the source of the test's weakness.

Because only males possess Y chromosomes, a mother does not contribute to the genetic code of her son's Y chromosome.   The DNA sequence on the Y chromosome is passed in complete form from grandfather, to father, to son and on down the male lineage.   The Y chromosome loci are not independent of one another and there is no recombination of DNA. It is strictly a male marker and there is no randomness on the chromosomes.   Consequently, the product rule used to generate probabilities for autosomal STR DNA analysis is inapplicable to Y-STR DNA analysis.   In other words, barring random mutations, all men in a paternal lineage will possess the same Y-STR DNA profile.   Thus, fathers, sons, brothers, uncles, and paternal cousins cannot be distinguished from one another through a Y-STR DNA profile.

For this reason, Y-STR DNA testing has limited usefulness in positively identifying an individual.   The testing is extremely useful, however, in excluding someone since an individual cannot be the source of the DNA if the profiles do not match.   If the Y-STR DNA profiles do match, then all that can be said is that the individual cannot be excluded as the DNA donor.

Because the product rule is inapplicable, the State Police Laboratory uses the “counting method” to convey the odds that the Y-STR DNA profile of any one individual would coincidentally match the profile obtained from a crime scene specimen.   The State Police Laboratory has access to a database of 3561 Y-STR DNA profiles of randomly selected individuals.   When a Y-STR DNA profile is generated from a crime scene specimen, the database is searched to determine if that profile has ever been seen before.   The laboratory report will then state whether the profile was found in the database, and if so, how often it occurred.   The frequency of the occurrence of any particular Y-STR DNA profile in the general population, however, cannot be estimated from this information since the very next person sampled could have that profile.   Thus, although Y-STR DNA analysis can detect a match with one hundred percent certainty, the match itself can only be interpreted as indicating that the individual cannot be excluded as the sample donor.

Reliability of Y-STR DNA Testing

Based on the record developed before the trial court, we are satisfied that there is a general acceptance of Y-STR DNA analysis in the scientific community.   The State's duly qualified expert in the field explained the theoretical basis of Y-STR DNA analysis, the methodology used by the testing laboratory, the SWGDAM standards that govern DNA testing, and the validation procedures associated with those standards.   The State Police Laboratory uses a commercially available testing kit to conduct Y-STR DNA analyses and Y-STR DNA profiles are maintained in a national database.

LaRue's testimony established that Y-STR DNA analysis is a “non-experimental, demonstrable technique” that is widely accepted by forensic scientists.   Harvey, supra, 151 N.J. at 171.   The scientific basis of Y-STR DNA analysis is sufficient to prove that the technique produces uniform and reasonably reliable results.  Kelly, supra, 97 N.J. at 210.   LaRue's testimony thus satisfied the first prong of the Harvey test.

In the interest of completeness, we also note that the State proved the reliability of the Y-STR DNA technique under the second prong of the test, which allows a proponent to establish general acceptance “by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony.”  Harvey, supra, 151 N.J. at 170.   Here, the State submitted numerous textbooks and scholarly articles concerning the development and use of Y-STR DNA analysis.   These materials set forth the theory of Y-STR DNA analysis and explained the various testing techniques.

Jobling and Gill's article is among the more informative of the State's sources.   Mark A. Jobling & Peter Gill, Encoded Evidence:  DNA in Forensic Analysis, 5 Nature Reviews-Genetics 739 (Oct.2004) available at http:// www.denverda.org/DNA_ Documents/NRG.forensics.pdf. As explained by the authors, Y-chromosomal analysis as a specific type of STR testing allows for evaluation of male-female body fluid mixtures and the technique is effective even in mixtures with a 4000-fold excess of female DNA. Id. at 746.   They conclude that the forensic use of Y-STR analysis will continue to increase, aided by the availability of standardized commercial kits.  Id. at 747.

In Paul C. Giannelli & Edward J. Imwinkelried, 2 Scientific Evidence § 18.03 at 33-34 (4th ed.2007), the authors observe that since its initial recognition in 1996, STR analysis has become the dominant DNA typing methodology.   They explain that the Y-STR test is “generally similar to the method employed in conventional autosomal STR analysis,” but note that the rarity of Y-STR profiles has not yet been determined from empirical studies.  Id. at 44.

In Benjamin E. Krenke et al., Validation of a Male-Specific, 12-Locus Fluorescent Short Tandem Repeat (STR) Multiplex, 148 Forensic Sci. Int'l 1, 2 (2005), the authors state that “short tandem repeat (STR) analysis is the primary technology for genetic human identification” and that Y-specific analysis is a valuable tool in criminal investigations.   They discuss standards established by the Director of the FBI and SWGDAM for Y-STR DNA analytical methods and set forth a study of the “consistency and robustness” of one particular technique, the “PowerPlex® Y System.”  Ibid. They conclude that Y-STR DNA analysis is reliable when used for forensic human identification.   Id. at 13.

A similar conclusion was reached by researchers investigating the Y-PLEX 6 and Y-PLEX 5 genotyping systems for forensic casework.   Sudhir K. Sinha et al., Utility of the Y-STR Typing Systems Y-PLEX 6 and Y-PLEX 5 in Forensic Casework and 11 Y-STR Haplotype Database for Three Major Population Groups in the United States, 49(4) J. Forensic Sci. 1 (July 2004) available at http:// www.hartnell.cc.ca.us/faculty/jhughey/Files/ y-plexgenetics.pdf. They state that these techniques provide reliable and probative results that could not be achieved through the analysis of autosomal STRs. Id. at 9.

By contrast, defendant has not cited any scientific study that questions the validity and/or reliability of Y-STR DNA analysis.   The State's proffer of authoritative sources concerning the scientific basis for Y-STR DNA analysis thus demonstrates that the Y-STR technique has been generally accepted in the scientific community.

V

Having determined the general acceptability of Y-STR DNA analysis, we must next consider defendant's argument that such evidence is not probative on the question of whether he was the person who murdered his wife.   Specifically, defendant argues that the State cannot prove that he was the source of the DNA material recovered from under decedent's fingernails.

We are satisfied that this evidence is relevant and has probative value because it shows that defendant could not be excluded from the class of individuals who could have “contributed” this biological material.   Thus, although this evidence cannot unequivocally establish that defendant was the person who killed his wife, it does show that defendant cannot be excluded from the class of individuals who could have been the killer.

Relevant evidence is that which has “a tendency in reason to prove or disprove any fact of consequence to the determination of the action.”  N.J.R.E. 401.  “In determining whether evidence is relevant, the inquiry focuses upon ‘the logical connection between the proffered evidence and a fact in issue.’ ”  Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State v. Hutchins, 241 N.J.Super. 353, 358 (App.Div.1990)).   If evidence supports the existence of a specific fact, even obliquely, it is relevant.  Verdiccio, supra, 179 N.J. at 34.

Here, the State's forensic expert, Christopher Szymkowiak, testified that a sample obtained from the fingernail clippings of decedent's right hand yielded a mixture of male and female DNA. Y-STR DNA analysis of the male component of the mixture produced a profile that matched the profile developed from defendant's control sample.   According to Szymkowiak, this particular profile did not match any profile recorded in the Applied Biosystems Yfilter Database of 3561 individuals.

This evidence is thus relevant in establishing that defendant cannot be ruled out as his wife's killer.   This scientific conclusion is a key part of the State's case when considered in light of the totality of the evidence presented against defendant.   Specifically, Susan was manually strangled;  defendant had wounds on his right hand.   Although Susan and defendant were married, they had not been intimate for some time.   The fact that Susan had DNA under her fingernails that links defendant, by way of inclusion in the class of potential killers, justifies a reasonable inference that Susan scratched defendant while trying to remove his hand from her throat.   The fact that Szymkowiak could not say with certainty that defendant was the source of the DNA does not render the test results irrelevant.   Although all males in a paternal lineage share the same Y-STR DNA, and even seemingly unrelated individuals can have the same Y-STR DNA profile, there are still sufficient variations within the population to make any particular profile distinct.

In that sense, Y-STR DNA matches are analogous to several conventional forms of evidence that are routinely admitted at criminal trials.   In State v. Swint, 328 N.J.Super. 236, 252-53 (App.Div.), certif. denied, 165 N.J. 492 (2000), we concluded that a box-cutter found in the defendants' possession within eight hours of an assault in which the victim was severely cut was relevant because it “had a tendency in reason to prove a fact of consequence.”   There had been no showing in Swint that the defendants' box-cutter was unique in any way;  in fact, there was no proof that a box-cutter was the weapon used in the assault.  Id. at 251.   There was also no testimony concerning how many other individuals in the area might have owned a box-cutter.   We noted, however, that the State's failure to provide a specific link between the evidence and the crime went to the weight of the evidence, not its admissibility.  Id. at 252.

In fact, shoe imprint evidence provides the best analogy to Y-STR DNA evidence.   Our courts have long admitted evidence connecting shoe imprints found at a crime scene with shoes found in a defendant's possession, despite the fact that any number of persons might own identical pairs of shoes.   See, e.g., State v. Johnson, 120 N.J. 263, 293-95 (1990) (upholding the admission of lay testimony that a footprint found at the crime scene had been made by the defendant's sneaker);  State v. Gerald, 113 N.J. 40, 53-54 (1988) (recounting trial testimony that the pattern on the defendant's sneakers matched imprints found on the victim's forehead);  State v. Bruzzese, 94 N.J. 210, 215 (1983) (recounting trial testimony regarding the similarity between an imprint on the victim's door and a boot found in the defendant's room), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed.2d 695 (1984).   In all of these cases, the State was not required to prove that the defendant's shoes were the only ones that could have made the impressions found at the crime scene.   Instead, the courts left to the jury the task of weighing the probative value of the evidence that the defendant possessed shoes identical to those used in the crime.

Here, Y-chromosome DNA with a specific STR profile was found under decedent's fingernails.   The coincidence that this profile matches that of defendant is probative of his guilt in the same manner as if he had owned shoes that matched a foot imprint found at the crime scene.   It was up to the jury to weigh the probative value of that evidence in light of the fact that a significant number of other individuals may possess the same profile.

VI

Finally, we are compelled to comment on defendant's arguments concerning alleged prosecutorial misconduct.   We will mention only the following particular incidents challenged by defendant:  (1) the prosecutor's holding of a stopwatch in front of the jury to “dramatize” that it may have taken as long as one minute for the victim to die from manual strangulation;  (2) the prosecutor's cross-examination of the couple's eight-year-old daughter about whether she attended church with defendant;  and (3) the prosecutor's comment to the jury that defense counsel tried “to fix” the child's testimony in one particular respect.

Prosecutorial excess warrants reversal when it is so egregious that it operates to deprive a defendant of a fair trial.  State v. Nelson, 173 N.J. 417, 463 (2002).   In order to determine whether the particular misconduct was sufficiently egregious to warrant reversal, we “must consider (1) whether defense counsel made timely and proper objections to the improper remarks;  (2) whether the remarks were withdrawn promptly;  and (3) whether the court ordered the remarks [to be] stricken from the record and instructed the jury to disregard them.”  State v. Frost, 158 N.J. 76, 83 (1999).   To determine whether the prosecutor's comments were inappropriate, we must inquire whether the prosecutor's legal or factual assertions were accurate and whether the comments were confined to the evidence revealed during the trial and the reasonable inferences to be drawn from that evidence.  State v. Smith, 167 N.J. 158, 182 (2001).   With these legal principles in mind, we will now examine each instance of alleged misconduct.

Here, the trial court overruled defense counsel's objections concerning the stopwatch display and the prosecutor's questions to the child about whether defendant attended church with her.   The court sustained defense counsel's objection concerning the “fix it” remark.   We are satisfied that the prosecutor's use of the stopwatch was improper.   Although the length of time it took for the victim to die of strangulation is arguably relevant in determining whether defendant acted purposefully or knowingly, the use of the stopwatch by the prosecutor had the clear capacity of inflaming the jury's passions against defendant.   In a trial, the truth is always the most potent weapon available to an attorney.   The truth here is that a courtroom display cannot recreate or even approximate the horror of being strangled to death.   Anything else beyond this truth demeans the victim and unduly prejudices the defendant.

We also conclude that the questions concerning whether defendant attended church with his daughter should have been ruled inadmissible as either irrelevant under N.J.R.E. 401, or as prejudicial beyond their remote probative value under N.J.R.E. 403.   Finally, we agree with the trial court's decision to sustain defense counsel's objection concerning the prosecutor's “fix it” remark.

When considered under the standards established by the Court in Nelson, Frost, and Smith, we are satisfied that these incidents of prosecutorial excessiveness do not warrant a reversal of defendant's conviction.   We have taken the time to discuss them here, however, as a means of preventing such behavior from reoccurring at a future trial.

VII

The balance of defendant's arguments reflected in Points I(c), (d), and (e);  Point II(a), (b), and (d);  Point III(d) and (e);  Point IV;  and Point V;  all lack sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(2).   Point VI is rendered moot.

Reversed and remanded.   We do not retain jurisdiction.

FOOTNOTES

FN1. The National Crime Information Center is a computerized index of criminal justice information maintained by the FBI. National Crime Information Center (NCIC)-FBI Information Systems, http:// www.fas.org/irp/agency/doj/fbi/is/ncic.htm..  FN1. The National Crime Information Center is a computerized index of criminal justice information maintained by the FBI. National Crime Information Center (NCIC)-FBI Information Systems, http:// www.fas.org/irp/agency/doj/fbi/is/ncic.htm.

FN2. Dr. DiCarlo defined manual strangulation as “force by [one's] limb that causes compression of the neck resulting in strangulation.”   He explained that this can be performed by using fingers, the ball of the hand, the wrist, or even the forearm.   By contrast, ligature strangulation is performed by wrapping a rope, a belt, a cable cord, or some other type of ligature around the victim's neck..  FN2. Dr. DiCarlo defined manual strangulation as “force by [one's] limb that causes compression of the neck resulting in strangulation.”   He explained that this can be performed by using fingers, the ball of the hand, the wrist, or even the forearm.   By contrast, ligature strangulation is performed by wrapping a rope, a belt, a cable cord, or some other type of ligature around the victim's neck.

FN3. The actual words used by the child were “speed walked” into the garage..  FN3. The actual words used by the child were “speed walked” into the garage.

FN4. A swab taken of a stain found on the garage floor of defendant's residence tested positive for human DNA, but it was of insufficient quantity to obtain a full profile..  FN4. A swab taken of a stain found on the garage floor of defendant's residence tested positive for human DNA, but it was of insufficient quantity to obtain a full profile.

FN5. Frye v. United States, 293 F. 1013 (D.C.Cir.1923)..  FN5. Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

FN6. The four bases are guanine (G), cytosine (C), adenine (A), and thymine (T).  An A always binds to a T;  a C always binds to a G..  FN6. The four bases are guanine (G), cytosine (C), adenine (A), and thymine (T).  An A always binds to a T;  a C always binds to a G.

FN7. The Combined DNA Index System (CODIS) is a searchable DNA database maintained by the FBI. It stores DNA profiles created by federal, state, and local crime laboratories.   CODIS-National DNA Index System, http:// www.fbi.gov/hq/lab/codis/national.htm..  FN7. The Combined DNA Index System (CODIS) is a searchable DNA database maintained by the FBI. It stores DNA profiles created by federal, state, and local crime laboratories.   CODIS-National DNA Index System, http:// www.fbi.gov/hq/lab/codis/national.htm.

FN8. According to LaRue, SWGDAM is a scientific board that advises the FBI and sets guidelines concerning how DNA analysis should be conducted.   It is composed of both public and private sector scientists who set federal standards governing training and education of DNA analysts, protocols in DNA testing laboratories, and guidelines for technique validations.   Before a laboratory may receive federal funding or upload results into the CODIS database, it must be audited and found to be in compliance with SWGDAM standards..  FN8. According to LaRue, SWGDAM is a scientific board that advises the FBI and sets guidelines concerning how DNA analysis should be conducted.   It is composed of both public and private sector scientists who set federal standards governing training and education of DNA analysts, protocols in DNA testing laboratories, and guidelines for technique validations.   Before a laboratory may receive federal funding or upload results into the CODIS database, it must be audited and found to be in compliance with SWGDAM standards.

FN9. See specifications for Yfiler®PCR Amplification Kit, https:// products.appliedbiosystems.com/ab/en/US/adirect/ab?cmd=catNavigate2 & catID=601709 (follow “specifications” tab)..  FN9. See specifications for Yfiler®PCR Amplification Kit, https:// products.appliedbiosystems.com/ab/en/US/adirect/ab?cmd=catNavigate2 & catID=601709 (follow “specifications” tab).

FN10. LaRue explained that the probability that a particular repeat frequency will occur at a particular locus is set by a database created by the FBI from random sampling of a large number of individuals of diverse ethnic backgrounds.   This database has been published, peer reviewed by the scientific community, and accepted worldwide..  FN10. LaRue explained that the probability that a particular repeat frequency will occur at a particular locus is set by a database created by the FBI from random sampling of a large number of individuals of diverse ethnic backgrounds.   This database has been published, peer reviewed by the scientific community, and accepted worldwide.

FN11. LaRue testified that sometimes DNA degrades in a sample and it is not possible to examine all thirteen loci.   If, for instance, it is only possible to generate a six-loci profile, then the probability of a match would be higher, the product of six individual probabilities instead of thirteen..  FN11. LaRue testified that sometimes DNA degrades in a sample and it is not possible to examine all thirteen loci.   If, for instance, it is only possible to generate a six-loci profile, then the probability of a match would be higher, the product of six individual probabilities instead of thirteen.

PER CURIAM