April 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER KORNBERGER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-03-0335.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2011
Before Judges Reisner, Sabatino and Alvarez.
Defendant Christopher Kornberger was convicted by a Burlington County jury for the rape and murder of Krista DiFrancesco and a sexually-motivated attack on E.L.J. He pled guilty to a sexually-motivated attack on N.C.*fn1
We summarize the convictions as follows. For crimes against DiFrancesco: (1) first-degree murder, N.J.S.A. 2C:11-3a(1) and a(2); (2) first-degree felony murder, N.J.S.A. 2C:11-3a(3); (3) three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), a(4), and a(6); and (4) third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. For crimes against E.L.J.: (1) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); (2) third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); (3) second-degree attempted sexual assault, N.J.S.A. 2C:5-1a(3) and 2C:14-2c(1); and (4) second-degree attempted kidnapping, N.J.S.A. 2C:5-1a(3) and 2C:13-1b(1). For crimes against N.C.: (1) first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1); (2) second-degree aggravated sexual assault, N.J.S.A. 2C:12-1b(1); (3) third-degree aggravated sexual assault, N.J.S.A. 2C:12-1b(2); (4) second-degree attempted kidnapping, N.J.S.A. 2C:5-1a(3) and 2C:14-2c(1); and (5) third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d.
After merging several of the convictions, the trial judge sentenced defendant to an aggregate term of life in prison, plus an aggregate consecutive term of fifty-one years, all subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served consecutive to a sentence imposed in Camden County.*fn2
Defendant appeals from the conviction and the sentence, raising the following points for our consideration:
POINT I: SINCE THE STATE FAILED TO SATISFY ITS BURDEN OF DEMONSTRATING THAT DEFENDANT'S CONFESSION WAS VOLUNTARY, ADMISSION OF THIS STATEMENT INTO EVIDENCE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS.
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENSE SEVERANCE MOTION AND PERMITTING THE STATE TO UTILIZED OTHER BAD ACTS TO PROVE THE HOMICIDE CHARGE.
POINT III: THE TRIAL COURT ERRED IN FAILING TO GRANT A CONTINUANCE TO HEAR DEFENDANT'S MOTION TO WITHDRAW DEFENDANT'S GUILTY PLEA TO THE [N.C.] CHARGES WITH SUBSTITUTE COUNSEL AND FAILED TO CONSIDER THIS MOTION ALTOGETHER.
POINT IV: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO THE [E.L.J.] CONVICTION.*fn3
POINT V: ADMISSION OF TESTIMONY CONCERNING DNA TESTING BY RELIAGENE TECHNOLOGIES INFRINGED DEFENDANT'S RIGHTS UNDER U.S. CONST., AMEND SIX AND N.J. CONST., ART I ¶ 10.
THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERTS TO TESTIFY CONCERNING THE RESULTS OF THE STR METHOD OF DNA TESTING.
POINT VI: PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL (Partially Raised Below).
POINT VII: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We find no merit in any of defendant's appellate contentions, including those asserted in the various supplemental briefs his counsel filed. Therefore we affirm the conviction and the sentence.
We set forth the procedural history and the facts in light of the issues defendant has raised on this appeal. In Burlington County, defendant came under suspicion for several crimes: attacking N.C. with a knife in an attempt to disable and then rape her; running E.L.J. down with his car in an attempt to disable and rape her; and raping and stabbing to death Krista DiFrancesco. In a very lengthy statement given to Burlington County law enforcement officers, defendant confessed to the attacks on all three victims, as well as to assaults on women in Camden County. The Camden prosecution proceeded first and, as part of that case, a Camden judge held a Miranda hearing and ruled that defendant's entire confession was voluntary.
There were extensive pre-trial proceedings in the Burlington County case. In one proceeding, all counsel agreed that the Camden judge's decision obviated the need for a second Miranda hearing. Defendant later sought to re-open the Miranda issue, but the trial judge denied that application.*fn4 He also denied defendant's motion to sever the three Burlington matters and try each case separately. He also denied defendant's January 31, 2008 motion to dismiss the charges concerning E.L.J. on double jeopardy grounds based on defendant's earlier guilty plea to a traffic violation in municipal court.
As his trial was about to begin, defendant entered a plea of guilty to the attack on N.C., leaving to be tried the charges relating to E.L.J. and DiFrancesco. The parties then argued the extent to which any evidence concerning N.C. would be admitted at defendant's trial. Because defendant never denied hitting E.L.J. with his car, and in fact remained at the scene until the police arrived, identity was not an issue in that case. However, defendant's intent and motive were at issue.
In the DiFrancesco case, the victim was stabbed multiple times, after which she was raped while she was still alive. The killer's identity was at issue. Defendant was first identified as a suspect based on two pieces of evidence: DNA recovered from a cigarette butt at the scene of the attack on N.C., who saw her attacker smoking a cigarette, and a composite sketch created from N.C.'s description of her attacker. At his trial, defendant planned to challenge the DNA evidence as tainted and planned to challenge his confession as coerced and inaccurate.
In an oral opinion of February 25, 2008, the judge ruled that limited amounts of evidence as to N.C. would be admitted on the issues of identification and motive, and as corroborating the accuracy of defendant's confession. Before the attorneys made their opening statements, the judge explained to the jury that defendant was not currently charged with any offenses concerning N.C., and he gave the jury a detailed limiting instruction.
This was the most pertinent trial evidence. At about 2:30 a.m. on May 10, 2003, neighbors in DiFrancesco's Marlton townhouse complex heard someone screaming. Thinking it was teenagers fooling around, they did not call the police. At about 6:30 a.m., a neighbor found DiFrancesco sitting on the lawn. She was covered with blood and nude from the waist down. The police responded to the scene, and DiFrancesco was transported to a hospital. Subsequent medical examination revealed that she had been violently sexually assaulted vaginally and anally. She had also been stabbed sixteen times, including wounds that penetrated her liver and lungs, and a knife wound near her left eye that penetrated her brain leading to her death. Two days after the assault, her husband authorized her removal from life support. Semen retrieved on an anal swab from DiFrancesco's body was later matched with defendant's DNA.*fn5
The State also presented testimony from Lawrence Shaffer, a resident of a complex located next to DiFrancesco's townhouse complex. Shaffer identified defendant as the person he saw getting out of a car and prowling with "purpose" around the complex at around 2:30 a.m. on May 10, 2003. Shaffer testified that, after getting out of his car and walking around, defendant got back into his car and drove away. Shaffer was able to remember the incident, because he learned about the murder the next day.
The State also presented testimony from Ryan Bourdon, an Evesham Township police officer. Bourdon described seeing what he characterized in his police report as "a suspicious vehicle" parked in DiFrancesco's neighborhood on the evening of May 7, 2003, three days before the murder. He questioned the vehicle's owner, who identified himself as "Christopher Kornberger" and told Bourdon "he was jogging." Bourdon accepted that explanation and let the man continue on his way. Bourdon identified defendant in court as the person he questioned on May 7, 2003.
The attack on E.L.J. occurred a month after the DiFrancesco murder. At about 8 a.m. on August 3, 2003, E.L.J. was running in her Marlton neighborhood, training for a marathon. She "was running on the left side of the road facing oncoming traffic." Suddenly, she "heard an engine roaring behind [her]." She turned to see a car three or four feet behind her coming directly toward her. Based on her safety training, she jumped onto the hood of the car rather than let the car hit her head-on. She landed on the hood, flew off, and wound up falling onto the side of the road, suffering significant injuries in the process. She believed the driver had hit her "on purpose" and looked toward the car to observe the license plate. The car stopped and a young man, whom she later identified as defendant, emerged.
According to E.L.J., she was angry and afraid and started "yelling" for help. A neighbor came out of her house and stated that she had called 9-1-1. Defendant then explained that he "was just looking down for cigarettes" when the collision occurred. The neighbor went back into her house to get E.L.J. a glass of water. While the neighbor was gone, defendant approached E.L.J., who avoided him by circling around his car with defendant following her.
When the police arrived, defendant told them he had carelessly lost control of his car, and they treated the incident as a traffic accident. E.L.J. later filed a civil suit against defendant, in which she described the incident as an accident in which defendant negligently lost control of his car. Defendant was also issued a traffic ticket, pled guilty to unsafe driving in municipal court, and paid $282 in fines and costs.
To avoid the State calling N.C.*fn6 as a trial witness, the attorneys agreed to a limited set of stipulations that were read to the jury. The stipulations briefly described that while out walking on November 3, 2003, N.C. saw defendant smoking a cigarette; defendant suddenly attacked N.C. from behind with a knife; she screamed for help and he ran away; she gave police a description used to make a composite sketch of the suspect; she let them take samples of her DNA material; and if she had testified she would have identified defendant as the attacker.
Before reading the stipulation to the jury, the judge gave them a N.J.R.E. 404(b) limiting instruction. He advised that the evidence was "introduced for the limited purposes of establishing the defendant's motive, intent and state of mind relative to the alleged offenses involving Krista DiFrancesco and [E.L.J.]" and to establish "a source of forensic evidence to be submitted by the State . . . as to Krista DiFrancesco."
William Kinner, an Evesham Township police detective, testified that based on the composite sketch, defendant became a suspect in the attack on N.C. On March 18, 2004, Kinner visited defendant's home and asked him to provide a DNA sample and to let police photograph him in connection with their investigation of that case. Kinner did not tell defendant that the police had retrieved a cigarette butt from the crime scene that could be a source of DNA evidence. With defendant's consent, Kinner photographed him and swabbed the inside of his cheek (referred to as a buccal swab) to retrieve DNA material.
After defendant's DNA was found to be a match with DNA material on the cigarette butt, the police placed his home under surveillance and, on May 13, 2004, they stopped defendant's car as he was driving away from his house. Corporal Trevor Short, of the Evesham Township Police Department, testified that after he approached defendant's car, defendant asked him "Is this about the cigarette butt?" Short had not observed defendant throwing a cigarette butt from his car.
Corporal Short, Sergeant Walter Miller, and Prosecutor's Detective Michael Sperry took defendant to the Prosecutor's Office. There, according to Sperry, he administered Miranda warnings to defendant, who agreed to waive his rights and be interviewed. After Sperry had asked defendant a series of questions about his background and family, defendant asked why the police wanted to talk to him. When Sperry responded generally that he wanted to speak to defendant "about some incidents that happened in the area," defendant stated "Oh, I get it. This is about the girl that was attacked around Mother's Day." That was significant, because the attack on DiFrancesco had occurred on the day before Mother's Day. Sperry then asked defendant if he had known what was going on when the police pulled him over. Defendant responded "that he did know. He just didn't want to believe it was actually happening." In essence, defendant stated that he had been waiting for the police to catch up with him.*fn7
Sperry then turned the discussion to the attack on DiFrancesco. According to Sperry, defendant stated that he had been driving around the neighborhood that night, "looking for a female to rape." Defendant described following DiFrancesco to the door of her home, running up behind her and stabbing her repeatedly. Defendant told Sperry, "I only wanted to rape her. I didn't mean for her to die." However, defendant described in graphic detail how he sexually assaulted DiFrancesco even though she was breathing in gasps and "he felt that she was dying." Defendant also confessed to Sperry that he attacked N.C. because he wanted to rape her.
Following his initial interview, Sperry conducted a filmed re-interview with defendant. After redaction to remove references to the Camden assaults and other irrelevant or prejudicial material, a DVD of defendant's confession was played for the jury at his trial. In that confession, defendant described at length his rape and murder of DiFrancesco. Defendant admitted that he later read newspaper articles about the murder. However, according to Sperry, defendant described details of the attack that had never been made public, including the locations of the stab wounds on DiFrancesco's body. Defendant also confessed to the attack on E.L.J. Significantly, he admitted that he hit E.L.J. with his car because he intended to rape her. The jury heard limited portions of defendant's confession concerning N.C., consistent with the stipulations already entered in evidence.
In addition, the State introduced evidence found during a search of defendant's home. In defendant's bedroom, the police found a set of poems or rap lyrics, which the parties stipulated were in defendant's handwriting. In these documents, defendant described the pleasure he derived from raping and murdering women. He described creeping up in back of a woman and cutting her "like a canteloupe." He also described leaving a woman with a "dead brain" and a "cut on her head." Those details, to some extent, corresponded to details of the attack on DiFrancesco.
As part of its case, the State presented extensive expert testimony about DNA analysis. According to Robert Shaler, the expert responsible for directing DNA identification of remains of the World Trade Center victims, "[t]he STR [method of] analysis is the current forensic standard employed by all forensic DNA laboratories in the United States." According to Shaler, in reaching opinions about DNA test results, it is standard practice for DNA experts to rely in part on bench notes compiled by the technicians who actually performed the physical analysis of the DNA materials. The scientists, however, also have electronic data, known as an electropherogram, which they interpret and rely on to form their conclusions.
Shaler's testimony addressed the DNA materials from the anal swab,
which had been analyzed by Reliagene Technologies and had admittedly
been contaminated during that analysis. In great detail, Shaler
explained that even if there is DNA from multiple sources on a swab,
it can still be possible to differentiate the DNA from each source if
there is enough material from each source on the swab.*fn8
In this case, he testified, there was enough material to
reliably identify defendant's DNA, as distinguished from the
contaminant DNA on the swab.
Shaler testified that he agreed with the statistical calculations to which Gina Pineda, a senior analyst at Reliagene, had previously testified. Notably, Pineda had also testified that although the swab had been contaminated by a Reliagene technician while he was cutting it apart for analysis, it could not have been contaminated with defendant's DNA. Reliagene never had any of defendant's DNA material; instead, they relied on a written report of his DNA profile produced by a different laboratory. The accuracy of that profile was not in dispute. Both Pineda and Shaler were extensively cross-examined about the underlying bases for their opinions, including the problems with the Reliagene technician's work.
The defense presented testimony from a witness who initially told police that she looked out her window on the night of the DiFrancesco murder and saw a man running away. She initially described the man as having a "tan" arm. However, she also described the man as having lighter skin on the back of his neck. Another defense witness gave testimony aimed at showing that shortly after the murder, the police had shown photos of the wounded DiFrancesco to a friend of DiFrancesco named Joe Ritter. The testimony was intended to prove that descriptions of her wounds were publicly available prior to defendant's confession. However, the officers who interviewed Ritter testified on rebuttal that they never showed Ritter any photos of DiFrancesco.
On this appeal, defendant first contends that the trial judge should not have treated the Camden judge's decision on the Camden County Miranda hearing as binding for purposes of the Burlington County case. The short answer is that defendant consented to that procedure. On the record on December 14, 2006, defense counsel agreed that "we're not going to object [to the State's] application that [the Camden judge's] ruling be applicable in this case." Defendant reserved the right to revisit the issue if recent enhancements to the sound quality of defendant's videotaped confession revealed additional grounds to challenge the confession, an eventuality that did not materialize. Having consented to the trial judge's reliance on the Camden judge's ruling, without the need for a second Miranda hearing, defendant may not assert a different position on this appeal. See State v. Souss, 65 N.J. 453, 460 (1974).
On the merits, we reject defendant's challenge to the admissibility of his confession, for all of the reasons set forth at length in our opinion in the companion case of State v. Kornberger, supra, slip op. at 24-30.*fn9 We add only the following comments. In our companion opinion, we rejected defendant's contention that he had invoked his Miranda rights when he asked if the interview could be continued at a "different time," but then immediately stated that he was amenable if the police wanted to continue the interview. Kornberger, supra, slip op. at 29-30. Pertinent to the present appeal, before defendant made those remarks, he had already confessed, on videotape, to murdering DiFrancesco. He had also already confessed, before the taping began, to the attacks on N.C. and E.L.J.
We find no merit in defendant's contention, raised for the first time on appeal, that Sperry made a statement to defendant that contradicted the Miranda warnings. First, defendant improperly premises this argument on a document that was not admitted in evidence at the Miranda hearing or at either of his trials. Second, at this trial, Sperry testified as to what he said to defendant, and it was not contrary to the Miranda warnings.
According to Sperry, after Miranda warnings were administered but before the police began recording his statement, defendant expressed concern that his friends would abandon him when they found out about his crimes. Sperry responded that he "wasn't going to leave the interview with [defendant] and go share with his friends the things that we had discussed." Taken in context, that statement did not constitute an explicit or implicit promise that defendant's confession would not be used in evidence against him. Cf. State v. Pillar, 359 N.J. Super. 249, 268 (App. Div. 2003)(holding that an offer to speak to defendant "off the record" vitiated Miranda warnings). Further, it is evident from defendant's videotaped statement that he did not believe Sperry made such a promise. Defendant clearly understood that the information he was giving the police would be used against him and that he would be going to jail because of it.
Defendant's contention, that the trial judge should have held a supplemental Miranda hearing based on State v. Nyhammer, 197 N.J. 383, 407, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), is equally without merit, for the reasons stated in the judge's cogent oral opinion issued on February 20, 2008. Further, Nyhammer is not on point for the reasons stated in Kornberger, supra, slip op. at 27-28. In a nutshell, based on his spontaneous statements to the police, defendant already knew he was a suspect without being formally so advised. However, the police were under no obligation to advise defendant that he was a suspect, or to obtain an arrest warrant, before seeking to question him. Ibid.
Defendant next contends that the trial court erred in denying his motion to sever the indictments and try him separately for his crimes against each victim. We disagree.
Rule 3:7-6 permits an indictment to include more than one crime under the following pertinent circumstances: "if the offenses charged are of the same or similar character or are based on . . . 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." However, a defendant may move for relief from "prejudicial joinder." R. 3:15-2; State v. Pitts, 116 N.J. 580, 601 (1989). A trial court has "ample discretion" in deciding a motion for severance. Pitts, supra, 116 N.J. at 601.
Pertinent here, severance may properly be denied where evidence of one crime would be admissible at a separate trial for the other crime. In construing Evidence Rule 55, the predecessor to the current N.J.R.E. 404(b), the Court stated:
A critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 in the trial of the remaining charges. Rule 55 precludes the admissibility of evidence of other crimes to prove defendant's propensity toward criminal conduct, but the Rule expressly permits such evidence to prove other facts genuinely in issue, such as motive or intent. [Id. at 601-02 (citations omitted).]
In turn, that analysis requires determining whether, in fact, the evidence of another crime would be admissible under N.J.R.E. 404(b). The evidence must be relevant to an issue that is genuinely in dispute and it must be necessary to prove the disputed issue. State v. Darby, 174 N.J. 509, 518 (2002); State v. Oliver, 133 N.J. 141, 151 (1993). Further, "[w]ith respect to other-crimes evidence . . . the potential for undue prejudice need only outweigh probative value to warrant exclusion." State v. Reddish, 181 N.J. 553, 608 (2004); State v. Chenique-Puey, 145 N.J. 334, 341 (1996). As the test was stated in State v. Cofield:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [127 N.J. 328, 338 (1992).]
In this case, the crimes were similar, in that they were sexually motivated attacks on women, which took place in the same geographic area, in the same general time frame. R. 3:7-6. The evidence of the other crimes would also have been admissible under N.J.R.E. 404(b) if defendant had been tried for each crime separately.
In the case of E.L.J., whom defendant hit with his car but did not sexually assault, motive and intent would clearly have been issues. Absent proof of a sexual motive, this incident appeared to be nothing more than a traffic accident. The State's theory was that defendant ran the victim down with his car as part of a plan to sexually assault her. Evidence of defendant's violent, sexually motivated assaults on other women in the same area in the same general time frame was relevant to prove that his motive for attacking E.L.J. was sexual and that he intended to rape her after he knocked her down with his car.
Defendant also exhibited a pattern or modus operandi of driving around a neighborhood looking for a woman who was alone, coming upon her from behind, attacking her unexpectedly and with great violence, and then trying to rape her. In his confession, he admitted this was his pattern, and the attack on E.L.J. fit that pattern. Likewise his admission, in his confession, that he had a plan to hunt down female victims and rape them, was relevant to show his intent regarding E.L.J. Evidence of defendant's violent attacks on other women in the same general vicinity and time frame, and his pattern of attack, was also relevant to establish his identity as the person who raped and killed DiFrancesco.
The judge instructed the jury that they were to consider the evidence concerning N.C. "for the limited purposes of identification and motive as to the matters involving Krista DiFrancesco and [E.L.J.]." He also instructed them that the evidence was offered to explain the source of the forensic evidence (the cigarette butt) which led the police to suspect defendant's involvement in the DiFrancesco murder. And he instructed them that they could not use the evidence to decide that defendant was a bad person, that he had a tendency to commit crimes in general, or that "just because the defendant committed other wrongs, that he must be guilty of the present offenses in the Indictment."
In summary, we find that even if the cases were severed, evidence of the other crimes would have been admissible at the severed trials, and that the judge properly instructed the jury as to the appropriate use of the evidence concerning N.C. We find no abuse of the trial court's discretion in denying defendant's severance motion. Pitts, supra, 116 N.J. at 601.
In his Point III, defendant contends that the trial court erred in failing to adjourn the sentencing to entertain a motion from defendant to withdraw his guilty plea to the attack on N.C. He also contends that the judge should not have met with all counsel in chambers to discuss scheduling issues. Based on our review of the record, this argument is without merit.
Defendant's sentencing was scheduled for May 27, 2008. On May 21, 2008, defendant's father transmitted to the judge, ex parte, a letter from defendant explaining that he had written to his attorneys to express certain concerns. Defendant attached the letter he had written to his attorneys, expressing some concerns about his guilty plea. However, in that same letter, he praised the attorneys and simply asked them to consider whether his views were correct and to explain to him if they were incorrect. The judge adjourned the sentencing to July 2 and ordered that any motions be filed by June 23, 2008.
At the request of defense counsel, the judge held a scheduling conference with all counsel in his chambers on June 30. At that conference, a different attorney, who was planning to represent defendant on appeal, requested that the sentencing be postponed again. The judge denied that request. Although defendant was apparently planning to retain new counsel, no substitution motion was filed, nor did defendant file a motion to withdraw his guilty plea. Contrary to defendant's assertion in his brief, defendant did not state at his sentencing that he wanted to file a motion to withdraw his guilty plea. Cf. State v. Hayes, ___ N.J. ___ (2011).
We find no abuse of the judge's discretion in declining to adjourn the sentencing a second time. See State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). Nor do we find anything inappropriate in the judge meeting with counsel in chambers, at the request of defendant's attorney, to discuss routine scheduling issues. See R. 1:2-2.
Defendant next contends that the trial court should have granted his motion to dismiss, on double jeopardy grounds, the charges arising from the attack on E.L.J. This contention is without merit and warrants no discussion beyond the following comments. R. 2:11-3(e)(2).
After defendant hit E.L.J. with his car, a police officer responded to the scene and issued defendant a traffic ticket for careless driving. Defendant later pled guilty in municipal court to a downgraded offense of unsafe operation of a motor vehicle, N.J.S.A. 39:4-97.2, for which the court imposed $282 in fines and costs. He was later indicted for attempted sexual assault, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:14-2c(1); attempted kidnapping, N.J.S.A. 2c:5-1a(3) and 2C:13-1b(1); and aggravated assault, N.J.S.A. 2C:12-1b(1) and -1b(2). On January 31, 2008, defendant filed a motion to dismiss the criminal charges on double jeopardy grounds.
In an oral opinion placed on the record on February 5, 2008, the trial judge denied the motion, because proof of the indictable offenses would involve different elements and different evidence than the municipal offense. See State v. Yoskowitz, 116 N.J. 679, 693 (1989). We agree. We add the following comments.
Once a defendant has been placed in jeopardy for an offense, the Double Jeopardy Clause bars a later prosecution for the same offense, an issue determined under the "same elements" test, articulated in Blockburger v. United States, 284 U.S. 299, 303-304, 52 S. Ct. 180, 181-182, 76 L. Ed. 306, 309 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
In Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980), the United States Supreme Court later articulated the "same evidence" test, which our Court has construed as a separate route to proving a double jeopardy violation*fn10
This test asks us to consider "whether the evidence actually used to establish guilt in the first prosecution is identical to that which will be used in the second prosecution. . . . If the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred." [State v. Yoskowitz, supra, 116 N.J. at 693 (quoting State v. DeLuca, 108 N.J. 98, 105-06, cert. denied, 484 U.S. 944, 108 S. Ct. 3331, 98 L. Ed. 2d 358 (1987)).]
The offense to which defendant pled guilty in municipal court makes it unlawful for "any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property." N.J.S.A. 39:4-97.2. The criminal offenses for which defendant was charged involved elements that were completely different than the elements of the minor traffic offense to which he pled guilty. Those criminal offenses were also proven with different evidence, including defendant's admission that he intentionally hit E.L.J. with the car as a substantial step in his plan to injure her, force her into his car and rape her, and her testimony that after defendant hit her with his car, he began pursuing her around the vehicle. We find no error in the trial court's decision to deny the double jeopardy motion.
We turn next to defendant's challenges to the DNA evidence. Defendant contends that the State failed to prove the reliability of the STR method of DNA testing, an issue he did not raise in the trial court.*fn11 We reject this argument for the reasons cited in our companion opinion. Kornberger, supra, slip op. at 31-32; see State v. Callaia, 414 N.J. Super. 125, 149 (App. Div.), certif. granted, 204 N.J. 41 (2010); State v. Deloatch, 354 N.J. Super. 76 (Law Div. 2002). We note in addition that the State's expert testified without contradiction that "[t]he STR [method of] analysis is the current forensic standard employed by all forensic DNA laboratories in the United States."
Defendant also seeks reconsideration of an issue we decided on the merits on the State's interlocutory appeal during the trial. This is how the issue arose. On March 6, 2008, during the trial, the judge conducted a N.J.R.E. 104(a) hearing as to the admissibility of testimony from Pineda, a forensic expert who had not actually conducted the tests on the DNA samples, but had supervised the individual who performed the testing. Pineda testified that, at the time of the testing, she was a senior analyst for Reliagene whose duties included assigning and reviewing cases. An analyst would perform the lab work, and she would review the analyst's bench notes and final data in order to reach an independent conclusion as to whether the tests were properly conducted and the results were accurate.
According to Pineda's testimony at the N.J.R.E. 104 hearing, any DNA expert who reviewed the data and bench notes could draw a reasonable certain conclusion about the results without retesting the samples. She testified that this often occurs when experts are retained by defense counsel to testify about tests that were conducted by the State's experts. In fact, Pineda noted that this was the standard practice within the industry, and that the majority of her expert testimony in other trials involved findings made by another analyst. She explained that the junior analysts perform the lab work, while senior analysts "review the test, write the report, sign the report and testify in court." In support of her assertion, Pineda added that FBI analysts follow the same procedure.
She explained that in this case, an analyst named Mark Tidwell performed the testing on the anal swab samples from DiFrancesco. After the first round of testing, it was discovered that contamination had occurred in the process, so Tidwell retested the samples. Pineda, however, was responsible both for comparing the final results to defendant's DNA profile and for performing the statistical analysis.
Pineda asked Tidwell how the contamination occurred, but he was unable to provide an explanation. Since the contamination was not noted in Tidwell's bench notes, Pineda concluded it must not have been obvious when it happened. Because it was still present when the sample was retested, she was able to determine that the contamination occurred during the extraction step. Specifically, Pineda concluded that Tidwell used improperly sterilized scissors when cutting the anal swab sample.
Nevertheless, Pineda was able to conclude to a reasonable degree of scientific certainty that the sample contained genetic markers consistent with defendant's profile. She explained that the contamination had no effect on her final conclusion because the result would have been the same without it.
Her testimony on this point was later corroborated by another expert, Robert Shaler, who confirmed that even though the sample was contaminated with DNA material from a third party, it was still possible to determine whether defendant's DNA was also on the sample. Significantly, Pineda confirmed that Tidwell could not have contaminated the swab by adding defendant's DNA material to it, because Reliagene never had any of defendant's DNA samples. Those samples were analyzed by another laboratory, which created a report of his DNA profile and provided Reliagene with a copy of the report.
In deciding to exclude Pineda's testimony at trial, the judge reasoned that allowing her to testify about testing she had not performed would "violate the spirit of" Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Therefore, because defendant was unable to confront "the underlying information," he barred Pineda's testimony.
We granted the State's motion for leave to appeal and decided the merits of the issue. We determined that the testimony was admissible for the following reasons:
The State has represented that it is not seeking to introduce the analysts' bench notes into evidence. The State may produce Ms. Pineda as an expert witness to render opinions subject to the limitations contained in N.J.R.E. 703. Since no documentary hearsay is sought to be introduced, permitting Ms. Pineda, the supervisor who did not perform the actual bench testing, to render opinion testimony does not violate the Sixth Amendment Confrontation Clause because defendant has the opportunity to challenge the bases of her opinions, the reliability of Mark Tidwell's testing of the anal swab and the circumstances of his employment with ReliaGene, her credibility, and related issues. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). [Order on Emergent Appl., State v. Kornberger, No. A-6133-07, slip op. at 2 (App. Div. Mar. 10, 2008).]
Following our ruling, Pineda testified at the trial, and the defense cross-examined her extensively about the bases for her opinions, including Tidwell's errors and the significance of the contaminated sample. The jury then had the opportunity to decide what weight to give her testimony.
We consider our ruling to be the law of the case and we decline to reconsider it. C.P. v. Twp. of Piscataway Bd. of Educ., 293 N.J. Super. 421, 431 (App. Div. 1996). We add only the following comments.
We are aware that the Supreme Court recently granted a petition for certiorari in Bullcoming v. New Mexico, 131 S. Ct. 62, 177 L. Ed. 2d 1152 (2010), a case that presents a very similar issue. We are guided by present law, which includes the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). That decision contains the following instructive language:
Contrary to the dissent's suggestion, we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that "[i]t is the obligation of the prosecution to establish the chain of custody," this does not mean that everyone who laid hands on the evidence must be called. . . . "[g]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility."
It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records. [Id. at 2532 n.1, 174 L. Ed. 2d at 322 n.1 (internal citations omitted).]
Melendez-Diaz held that under Crawford, the State could not, over defendant's objection, rely on a laboratory certificate to prove that seized material was cocaine; the State needed to present live testimony on that issue. Id. at 2532, 2542, 174 L. Ed. 2d at 321-22, 332-33. However, the Court did not address the issue of which expert was required to testify. Although it is not directly on point, we also note that in the recent case of Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, ___ L. Ed. 2d ___ (2011), the Court declined to extend Crawford to bar testimony concerning a dying crime victim's excited utterance. Id. at 1167.
Finally, even if the DNA evidence had been admitted in error, on this record the error would have been harmless. The record includes defendant's detailed videotaped confession; his poetry describing the pleasure he derived from raping and killing women, including details similar to the DiFrancesco murder; and an eyewitness who saw defendant prowling in DiFrancesco's neighborhood near the time of the crime at 2:30 a.m. Beyond a reasonable doubt, defendant would have been convicted even without the DNA evidence.
Defendant next contends that the prosecutor made improper comments in summation. Defense counsel did not object to any of the comments he now challenges on appeal, and with good reason. None of them were improper. This point merits no discussion beyond the following comments. R. 2:11-3(e)(2).
At one point in his summation, the prosecutor referred to a portion of defendant's statement in which he denied committing certain crimes. However, the prosecutor did not argue to the jury that defendant committed those crimes, but rather that he had not committed them. The remarks were aimed at rebutting defense counsel's argument that the confession was a product of police coercion and that defendant would have confessed to whatever the police wanted him to admit. The gist of the prosecutor's comments was that defendant was able to freely admit to crimes he committed and deny those he did not commit. This evidence was the subject of a thorough in limine hearing; it was properly admitted; and the prosecutor properly commented on it in summation.
Finally, defendant argues that his sentence was "manifestly excessive." Our review of the trial judge's sentencing decision is very limited. State v. Bieniek, 200 N.J. 601, 607-08 (2010). In imposing the sentence, the judge issued a cogent oral opinion on July 2, 2008, with which we completely agree. We need not recite his entire opinion. The following excerpts will suffice. The judge described the attack on DiFrancesco as follows:
[T]his is . . . probably one of the most brutal offenses that I have been exposed [to] as a judge. . . . [Defendant] stalked the victim. The victim was stabbed more than 16 times. One of those stab wounds . . . went through her eye into her brain and then he undressed her and sexually assaulted her both vaginally and anally. . . . [T]he defendant knew that the victim was incapable of exercising normal resistance.
The judge also considered the risk that defendant would commit another crime, as evidenced by his convictions for the additional attacks on women in Camden County, and "the Avenel report which indicates . . . that basically Mr. Kornberger is a sociopath." The judge further found that defendant was "probably one of the most dangerous individuals I have ever come across . . . because of the random nature of his attacks."
The judge further explained the reasons for the length of each sentence for each crime, as well as the reasons for imposing consecutive sentences pursuant to State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
In sentencing defendant, the judge merged the convictions for the murder and felony murder of DiFrancesco, and imposed a life sentence. He imposed a separate, consecutive fifteen-year NERA sentence for the aggravated sexual assault on DiFrancesco, because that was a "separate act of violence." Defendant's argument that the convictions for sexually assaulting DiFrancesco should merge into his conviction for murdering her is without merit. Those convictions do not merge. See State v. Cole, 120 N.J. 321, 330-33 (1990); State v. Adams, 227 N.J. Super. 51, 61-63 (App. Div.), certif. denied, 113 N.J. 642 (1988).
Defendant's remaining contentions - including his argument that he was entitled to credit for "renunciation" because he did not complete his attacks on N.C. and E.L.J. - are without sufficient merit to warrant discussion in a written opinion.
In summary, we find no error in any of the judge's sentencing decisions. This defendant was appropriately given a sentence that will insure he spends the rest of his life in prison.*fn12