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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...