STATE OF NEW JERSEY v. FREDERICK L. DALTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0286-05T40286-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK L. DALTON,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 12, 2006 - Decided January 11, 2007

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. 02-01-0123-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Ocean County Indictment No. 02-01-0123-I charged defendant, Frederick L. Dalton, in count one with murder, contrary to N.J.S.A. 2C:11-3a, and in count two with possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. Trial was held before a jury from May 12 to May 22, 2003, following which the jury found defendant guilty as charged. On June 27, 2003, defendant was sentenced. The court merged count two into count one and then sentenced defendant pursuant to N.J.S.A. 2C:11-36 to life with a thirty year parole disqualifier on count one.

A Notice of Appeal was filed on September 15, 2003. On June 13, 2005, this court, in a twelve page unpublished per curiam opinion, affirmed the defendant's conviction and sentence. State v. Dalton, No. A-0457-03T4. Defendant's petition for certification was denied by the Supreme Court on September 27, 2005. State v. Dalton, 185 N.J. 267 (2005).

While this appeal was pending, defendant filed a motion on February 15, 2005, pursuant to N.J.S.A. 2A:84A-32a, to have DNA testing performed on various items seized during the course of the criminal investigation into the death of the victim, Jennifer Pammer, which were referenced at trial. The motion resulted in a hearing before the court on July 8, 2005. The motion was denied for reasons expressed in the court's oral opinion and memorialized in an order entered July 8, 2005. We affirm.

The underlying facts are contained in our opinion on direct review. We repeat them herein verbatim:

Defendant, a married man, was engaged in a three-year romantic relationship with Jennifer Pammer. By all accounts, the affair was tumultuous. The couple fought and Pammer called defendant's house at all hours of the day and night. Not surprisingly, defendant's wife, Debra, learned of the relationship, and the women confronted each other on several occasions. On one occasion, Pammer sprayed mace at defendant's wife; on another occasion, Debra threw eggs at Pammer. Still, the affair persisted, as did the acrimony between the two women. In fact, as late as September 2000, Debra had Pammer ejected from the hospital where defendant was hospitalized when she found Pammer leaning over her husband's bed.

On December 5, 2000, Pammer did not report for work. Barbara Appelt last saw Pammer at 10:40 p.m. on December 4 when she drove Pammer home after a late dinner at a local diner. Repeated calls to Pammer's cellphone from Allison McCullough, a co-worker, and Appelt went unanswered. Appelt drove to Pammer's apartment but found nothing disturbed and Pammer's car gone. Appelt asked a mutual friend to drive to a near-by "Wal-Mart" parking lot because that was a frequent meeting place for Pammer and defendant. Pammer's car was parked in the lot; her handbag and cellphone were gone.

At that time, Appelt called the police. At about 1:30 p.m., she received a telephone call from Pammer's cellphone. A raspy-voiced male said, "she's gone," and hung up.

Sometime after 1 a.m. on December 5, defendant arrived home visibly upset and frantic. His wife testified that he was saying, "She's dead. I couldn't take it anymore. She's dead." Defendant showed his wife a silver knife that he said Pammer had used to attack him. He also told his wife that he slammed Pammer's head against the trunk of the car. After he ascertained that Pammer was not breathing, he stuck her in the trunk of her car.

Debra urged her husband to go to the police and tell them what he had done and why he had done it. She suggested that he bring a file she had compiled about Pammer's conduct. Eventually, at 4:30 a.m., defendant went to Dover Township police headquarters and spoke to an officer.

Officer Paul Burkhardt testified that defendant reported an incident that had taken place earlier between himself and Pammer. Defendant related that he arrived at "K-Mart" at approximately 10 p.m. on December 4 and that Pammer pulled alongside of him and began to argue. He stated that Pammer threatened to kill him and his family. She pulled a knife but defendant managed to disarm her. She then grabbed for the knife that he usually kept in his waistband. Defendant turned over the knife he took from Pammer to the police.

In this first interview with the police, he denied any romantic relationship with Pammer. He characterized her as a stalker who had been harassing his family for years. Defendant also told police that he had just received a call from Pammer and that she had threatened to commit suicide.

By the afternoon, the police were investigating the report of Pammer's disappearance. Several officers arrived at defendant's residence during the afternoon of December 5. Defendant showed one officer the caller identification on his home telephone that indicated that calls from Pammer's cellphone had been received throughout the day. While the officer was there, the phone rang. Defendant answered the phone and told the officer that it was Pammer. Later investigation revealed that it was a wrong number.

Debra was also questioned. She denied that there was a romantic relationship between defendant and Pammer and showed police the file she had compiled documenting Pammer's harassment of the family. She also told the police that her husband left the house the previous evening shortly after 9:30 p.m. to play cards with friends and returned home about 11:30 p.m.

Debra later changed her story, allegedly after she was presented with irrefutable proof that her husband and Pammer were lovers. According to her revised version, defendant returned to the house at 1 a.m. very upset. She stated that he confessed to her that he had killed Pammer. At trial she also testified that defendant called her at 3 a.m. to tell her that Pammer was alive and had gotten out of the trunk of the car.

Several telephone calls from Pammer's cellphone were received at defendant's house in the early afternoon of December 5. The last call from the cellphone was received at 2:07 p.m. Defendant told police that Pammer had called him for several days after December 5. Investigation revealed that these calls had been placed from a telephone at a 7-11 near defendant's home, but defendant did not appear on the surveillance tapes of the store. He was seen, however, in a strip mall on December 19. One of the telephone calls received at defendant's house was traced to a phone booth at that mall.

On May 17, 2001, Pammer's body was found. Timothy Ritchie and his girlfriend were fishing in Bamber Lake. Ritchie noticed a flock of turkey buzzards circling. He walked in the direction of the birds and found the decomposed body of Jennifer Pammer. A knife was found under the body. One french fry was found in the area where the stomach would have been.

The medical examiner testified that Pammer had been killed approximately one to three hours after eating. She identified six stab wounds on the body: two to the legs, two to the chest, and two to the sides. The defense pathologist opined that the cause of death could not be definitively determined due to decomposition. He found no evidence of stab wounds but agreed that the death was a homicide.

Forensic evidence introduced at trial included DNA analysis of a blood spot from the trunk of defendant's car. The analysis revealed that there was a one in 7.9 billion chance that the blood belonged to someone other than Pammer. A glove containing blood from a male was also found in the car. In addition, the knife found under the body matched the description of the knife defendant said Pammer had taken from him.

The State also offered the testimony of three inmates of the Ocean County jail. Raymond Hardy testified that defendant confessed to him that he had killed Pammer and threw her belongings into Bamber Lake. Dominick Leyda testified that defendant confessed to him that he had killed Pammer. Richard Ludlow testified that defendant told him that Pammer and he got into an argument and he stabbed her. Ludlow also stated that defendant told him that he would try to implicate his wife in the murder.

In his defense, defendant presented three family members who testified that Debra knew of the affair. They stated that she had threatened to kill Pammer.

In defendant's February 15, 2005 motion, defendant sought an order granting him the right to have twenty-eight items seized by the police during the course of their investigation subjected to DNA testing. Some of the items were found in and around the area where the victim's body was found, others were found in defendant's car and the victim's car.

The State opposed the request maintaining defendant had not adequately demonstrated, pursuant to N.J.S.A. 2A:84A-32a and controlling case law, why the twenty-eight items should be subjected to DNA analysis. In his supplemental memorandum to the trial court, defendant contended that if the twenty-eight items were tested, the results would provide a link to his ex-wife or her father or brother. Defendant asserts that if such testing linked his ex-wife or her family members, the State's case would have been effectively undermined, since defendant's ex-wife testified she never left the marital residence the evening of December 4, 2000, thereby preventing her DNA from being found on any of the twenty-eight items. DNA results would, therefore, support defendant's contention that Debra Dalton, and not defendant, was criminally responsible for Pammer's death.

Additionally, defendant claims, that if further tested the blood found on a purple glove in Pammer's car, which testing determined to be "male blood," would be shown to have come from either his ex-wife's father or brother, who assisted in concealing her criminal culpability. Defendant also asserts that the telephone hand piece needs to be tested to refute the prosecutor's claim that defendant, rather than Pammer, had utilized that telephone to place calls to defendant's residence. Likewise, defendant maintains that the shovel taken from his garage, two and one-half months after Pammer was reported missing on December 5, 2000, would contain DNA from his ex-wife and members of her family. Further, defendant contends that a black button found in the right passenger side of the family car was torn from either Pammer's or his ex-wife's clothes, while his ex-wife killed her.

Lastly, defendant sought to have the purported murder weapon, the stainless steel knife found under Pammer's body, tested. Defendant argues that DNA on the knife of his ex-wife or her family members would serve to exonerate him from the jury's guilty verdict.

The judge in his oral decision, denying defendant's motion, relied on three subsections of N.J.S.A. 2A:84A-32a. The judge referred to N.J.S.A. 2A:84A-32a(a)(1)(a), which requires that a defendant who brings a motion for performance of forensic DNA testing must "explain why the identity of the defendant is a significant issue in the case." The defendant must also make a "prima facie showing that the evidence sought to be tested is material to the issue of the defendant's identity as the offender." N.J.S.A. 2A:84A-32a(d)(4). If defendant meets this condition, he must establish, in light of all of the evidence, how, if the requested DNA are favorable to him, "a motion for a new trial based on newly discovered evidence would be granted." N.J.S.A. 2A:84A-32a(d)(5).

The judge noted several items had, in fact, been subjected to DNA analysis. A piece of carpet from the trunk of one of defendant's family's cars contained blood, and DNA analysis revealed there was a one in 7.9 billion chance the blood belonged to someone other than the victim. The jacket believed to have been worn by defendant on the night in question had been tested, with no blood detected thereon. A purple glove had been tested and proved positive for the existence of male blood, while a swabbing from the interior of the driver's door of one of defendant's family's vehicles was found not to contain blood. Further, a white deformed cigarette filter found by the victim's grave site had been tested with inconclusive results.

The court noted that the first twelve items sought to be tested were recovered from in and around the family vehicle. While defendant wanted the victim's stainless steel folding knife tested, the court noted that defendant told his ex-wife and the police that he had obtained it from the victim on the night of December 4, 2000. Thus, there was no evidence presented to the court that would indicate the knife contained any DNA evidence. Regarding the public telephone handset, the judge concluded that the medical examiner's testimony that the victim died one to three hours after her last meal with a friend on the evening of December 4, 2000, refutes any likelihood that the victim made any telephone calls after defendant reported his actions to his ex-wife at about 1:00 a.m. on December 5, 2000.

The court found no value in testing five used condoms and a blue scrunchie found several hundred yards from the victim's body, as well as an unidentified pink substance found near her body. The court concluded there was nothing presented that indicated these items had any connection or significance to the case. Further, the shovel found in defendant's garage on February 20, 2001 was of no value since it was taken ten weeks after the victim's disappearance, thus possessing no relevance to the case.

Finally, the knife recovered from beneath the victim's body had been checked for fingerprints with negative results. Although it contained Pammer's body fluids and dirt, there was no indication further testing would provide relevant information because a prosecutorial consultation with scientists of Cellmark Diagnostics revealed that the acidity of the soil where the knife was recovered would degrade DNA evidence.

As a result, the court concluded defendant had failed to make a prima facie showing that the items sought to be tested were material to the identification of the offender. The court further found that the defense failed to demonstrate, assuming the results of DNA testing were favorable, that a motion for a new trial would be granted. After summarizing the evidence presented at trial, which the court found established the defendant's criminal culpability, the court concluded the requisite elements of a motion for a new trial, based upon newly discovered evidence, had not been established. Accordingly, the motion was denied in its entirety.

It is well established that a convicted person has the right to request DNA testing. State v. Hogue, 175 N.J. 578, 582 (2003); State v. Cann, 342 N.J. Super. 93, 103 (App. Div.), certif. denied, 170 N.J. 108 (2001). In 2002, N.J.S.A. 2A:84A-32a was enacted specifically to provide that any person convicted of a crime and currently serving a term of imprisonment could make a motion before the trial court to require DNA testing.

In addition to the statutory sections, which the motion judge deemed significant, N.J.S.A. 2A:84A-32a(d)(1), requires that: "The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines . . . . the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion." Our review of the record indicates that defendant made no attempt to satisfy that requirement. Specifically, defendant did not present any proofs establishing the present location of the twenty-eight items of evidence he seeks to have DNA tested or a certification from an expert in DNA analysis that the items he seeks to be tested are in a present condition that would permit DNA testing.

The prosecutor was advised by its expert, Cellmark Diagnostics, that the defendant's knife found under the victim's body was not suitable for DNA testing. Without a supporting expert opinion, refuting that conclusion and opining that the present condition of the knife is suitable for producing meaningful DNA results, the requirement of N.J.S.A. 2A:84A-32a(d)(1) has not been established.

Additionally, we are satisfied that those items the motion judge indicated have been previously tested are statutorily barred from retesting, unless "the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results." N.J.S.A. 2A:84A-32a(d)(6)(b). Thus, we are convinced that defendant would need to produce a certification from an expert in DNA analysis satisfying the requirement of N.J.S.A. 2A:84A-32a(d)(6)(a) before this statutory prong could be deemed satisfied.

The motion judge denied defendant's motion on the ground that defendant had not made a "prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity," N.J.S.A. 2A:84A-32a(d)(4), and that "the requested DNA testing would raise 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." N.J.S.A. 2A:84A-32a(d)(5). We have reservations about the motion judge's conclusions on these issues. Although the proposed DNA testing of many of the items identified by defendant, such as condoms and other items found several hundred yards from the victim's grave site, clearly could not yield evidence that would justify a new trial, the result is not so obvious with respect to the knife found under the victim's body and the unidentified pink substance obtained while sifting the soil at the grave site. We are of the view that it is problematic to undertake to project the possible evidential significance of DNA testing before the testing is undertaken.

Indeed, in State v. Peterson, 364 N.J. Super. 387 (App. Div. 2003), we concluded that N.J.S.A. 2A:84A-32a(d)(4) does not specify that the identification of the defendant as the perpetrator must have been established by any particular form of evidence. Id. at 395. We stated:

Indeed, it would be anomalous to construe N.J.S.A. 2A:84A-32a as being inapplicable to a case in which the identification of the defendant rested substantially upon scientific analysis of crime scene evidence that now may be subject to more sophisticated and reliable DNA testing. The underlying objective of N.J.S.A. 2A:84-32a--to provide an opportunity for exoneration of an innocent person through the testing of evidence by a highly reliable scientific methodology that was not available at the original trial--may be served in any case where there is a genuine question concerning the identity of the perpetrator.

[Ibid.]

We concluded that "the strength of the evidence against a defendant is not a relevant factor in determining whether his identity as the perpetrator was a significant issue." Id. at 396.

We also interpreted N.J.S.A. 2A:84A-32a(d)(5) to "not require a convicted person to make a threshold showing that there is a 'reasonable probability' DNA testing will produce favorable results." Ibid. We held that the "reasonable probability" requirement of N.J.S.A. 2A:84A-32a(d)(5) applies only to the grant of a new trial in the event the results of DNA testing are favorable." Id. at 396-97.

Although we question the motion judge's findings with respect to his application of N.J.S.A. 2A:84A-32a(d)(4) and (5) as barring defendant's motion, we are convinced, nonetheless, that the judge's denial of the motion must be affirmed because defendant failed to meet the statutory requirements of N.J.S.A. 2A:84A-32a(d)(1) and (6).

We are convinced that N.J.S.A. 2A:84A-32a must be strictly applied and that the failure to satisfy any of the requisites of the statute precludes the court from granting a defendant's motion for the performance of forensic DNA testing since the requirements of the statute are stated in a conjunctive manner. See State v. Reldan, 373 N.J. Super. 396, 404 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

 
Accordingly, we affirm the denial of defendant's motion for DNA testing for defendant's failing to satisfy the threshold requirements of N.J.S.A. 2A:84A-32a(d)(1) and (6), but without prejudice to renewal of the motion if defendant can satisfy these requirements.

Defendant and Debra Dalton are now divorced.

See State v. Marcus, 294 N.J. Super. 267, 276-79 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998), for a discussion of "the scientific principles, which underlie DNA analysis."

The twenty-eight items requested to be DNA tested were: (1) One purple glove; (2) swabbing of red color stain from interior driver's door panel; (3) piece of chewed gum from right rear floor area; (4) one black button from right front passenger's floor; (5) piece of vegetation with seeds, right exterior fender of vehicle; (6) two pieces of stained material, removed from left rear seat; (7) strands of hair, from baby seat in rear seat area of vehicle, (8) luminol-reaction material portion of right side of back rest to rear seat; (9) luminol-reaction material portion from left side of back rest to rear seat; (10) luminol-reaction portion from left rear seat area; (11) luminol-reaction piece of carpet, left rear floor area, at center hump; (12) luminol-reaction - swabbing from center console change holder; (13) one stainless steel folding knife, submitted by Ptl. Burke, DTPD; (14) telephone hand piece; (15) used condom on ground in trail, south side of lake; (16) used condom on ground in trail, south side of lake; (17) used condom on ground in trail, south side of lake; (18) used condom on ground in trail, south side of lake; (19) used condom on ground in trail, south side of lake; (20) one blue scrunchie, from top of ice, south side of lake; (21) several pieces of pink substance from sifting of grid #3; (22) one black handle 5" knife with silver blade, grid #1, 17" down; (23) one deformed cigarette filter from section 5 grave site; (24) two paper bags containing item #90 (knife) and soil; (25) debris from bag containing item #66 (shovel); (26) debris from bag containing item #66; (27) vacuumings from shovel - item #66; and (28) signed exemplar consent-buccal swabs for defendant.

(continued)

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January 11, 2007