STATE OF NEW JERSEY v. JOHN DEMARCO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5553-03T45553-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN DEMARCO,

Defendant-Appellant.

___________________________________________________

 

Argued December 8, 2005 - Decided

Before Judges Stern, Parker and Lihotz.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

Indictment No. 91-03-0134.

Jean D. Barrett, Designated Counsel, argued

the cause for appellant (Yvonne Smith Segars,

Public Defender, attorney; Ms. Barrett, of

on counsel and on the brief).

Deborah Bartolomey, Deputy Attorney General,

argued the cause for respondent (Peter C.

Harvey, Attorney General, attorney; Ms.

Bartolomey, of counsel and on the brief).

PER CURIAM

Defendant appeals from a post-conviction order denying his application "for post-conviction DNA testing." Defendant is serving a sentence of life, with thirty years before parole eligibility for murder and a merged weapons offense. On this appeal he argues that "the trial court erred when it concluded that Mr. DeMarco had not met the threshold requirements for DNA testing pursuant to N.J.S.A. 2A:84A-32a."

Specifically, defendant contends that "the conclusion by the court below that the evidence was not sufficient for testing was clearly erroneous"; that "the chain of custody was insufficient as unsupportable since the chain of custody was established at trial without objection by the State, and thereafter, the evidence has remained in the custody of the State"; "there is a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted," and some of the elements of the statute were uncontested by the State and, in any event, all of the statutory requirements for post-conviction "have been clearly established."

Semen from the victim's mouth was tested by the defense and the State before trial. Defendant was found not to have been the source. The post-conviction court concluded that defendant failed to show that "the evidence to be tested is available and in a condition that would permit the DNA testing that is required" because of the prior multiple DNA testing. The judge also concluded that the chain of custody was lacking and that, in any event, proof that the DNA was not defendant's would not give rise to a new trial because evidence on that subject was presented to the jury. Defendant claims that in addition to the remaining semen evidence, there is hair and fiber evidence that was not tested previously, and he contends that if "proof that the semen recovered from the victim's body belonged not to John DeMarco but to a known sex offender," he would be "entitle[d] . . . to a new trial based on newly discovered evidence."

The issues raised before us include significant questions regarding the right to retest DNA samples based on new technological improvements in the scientific community following a conviction and the right of a defendant to secure DNA testing for the purposes of identifying a person he or she believes may have committed the crime. As already noted, the defendant contends that if he can identify the donor whose samples remained on the body of the victim or at the scene of the crime, further investigation might lead to a motive or reason to assert that person's guilt on a motion for new trial. Such identification would not have been possible at the time of defendant's 1999 trial, since rational DNA data bases did not yet exist.

These issues present potentially important questions for the criminal justice community, but they are academic if there is no sample to test. It is not clear from the record whether any sample still exists eleven years after the conviction, and whether it is in the form that will permit DNA testing.

At argument before the motion judge, the following was stated on behalf of the State:

ASSISTANT PROSECUTOR: I have not looked for it at this point in time. I believe it is down in the basement - I can only make that representation - in the basement of the 40 North Bridge Street. I don't know physically where all of the evidence is. I mean, I don't even know, for instance, if there is sufficient evidence . . . - I am not sure if it was contamination in this case or that was argued below, but there was a mixture in this case. Obviously, the cells came from the victim's mouth, her cells mixed in with the sample, sperm cells mixed in with the sample. I am not sure if the lab could go back and determine exactly what [the victim's] DNA type was from what we have left. I know blood was taken at the autopsy, and I know they usually take that to make the DNA samples from, but I don't even know if they can go back and get her DNA sample. I don't know physically where it was. I assume it's down in our basement at 40 North Bridge Street. The thing is it's 10 years ago since this case ended, I mean almost exactly 10 years ago in June of 1994.

. . . .

THE COURT: In a sense, the clear statutory criteria needs a demonstration of a chain of custody for this evidence. That obviously falls upon the State.

ASSISTANT PROSECUTOR: I would - I would agree that it probably is - I hope it's probably still in our hands. The only thing is I don't know where it would be stored. I don't know if it's stored in ideal conditions. I don't even know if there is enough material to do the DNA test because I don't think there is. . . .

We find it inappropriate to address the issues advanced before us in favor of additional testing if in fact there is nothing left to test. This issue should have been resolved before the judge proceeded further in the Law Division and before the matter was presented to us.

 
The matter is remanded to the Law Division for a determination of what biological samples, DNA extracts, and other evidence remains following defendant's conviction, and where it is now retained. The court shall also determine who was given custody of the DNA evidence, marked D14, and who was charged with retaining it after defendant's second trial. The Law Division shall make its determination based upon a certified statement of the prosecutor and shall submit its findings to us on or before January 27, 2006.

We retain jurisdiction.

The judge concluded that defendant had not demonstrated that "the evidence to be tested is available and in a condition that would permit the DNA testing that [was] requested," N.J.S.A. 2A:84A-32d(1), but never addressed whether it existed at all.

(continued)

(continued)

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A-5553-03T4

December 27, 2005