On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-03-0342.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued November 17, 2010
Before Judges Lisa, Sabatino, and Alvarez.
After a jury trial, defendant Reginald Roach was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; second-degree burglary, N.J.S.A. 2C:18-2; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was acquitted by the jury of other offenses charged in the indictment.
The trial court sentenced defendant as a persistent offender on the aggravated sexual assault counts to two concurrent forty-year prison terms, subject to an eighty-five percent parole disqualifier under N.J.S.A. 2C:43-7.2. The court further imposed a ten-year concurrent sentence for the burglary and a five-year concurrent sentence on the weapons offense, plus other terms and conditions including registration as a sex offender pursuant to Megan's Law.
Defendant now appeals his conviction and sentence. He argues that expert testimony concerning the DNA analysis of material from the victim's body was improperly admitted at trial, in violation of his rights under the Confrontation Clause. He further contends that his sentence was excessive, and that several of his offenses should have merged for sentencing purposes.
For the reasons that follow, we reject defendant's claim of an unconstitutional denial of confrontation and therefore affirm his conviction. We also uphold his sentence in most respects, but remand it for certain necessary mergers.
The indictment stemmed from a brutal sexual attack upon a sixty-four-year-old woman at her townhouse in North Brunswick. The attack occurred after the victim, who lived alone, went to bed on the evening of November 5, 2005. The male attacker climbed into the second floor window in the middle of the night. The victim awoke to find the attacker pointing a sharp object at her neck, demanding money. She led him downstairs to the kitchen, where she showed him a drawer containing cash. The attacker took the money and, still pointing the sharp object at the victim's neck, told her to go back up to her bedroom.
When the attacker and the victim returned to her bedroom, he forcibly penetrated her vagina with his penis. The attacker then fled.
Immediately after the assailant left her townhouse, the victim called 9-1-1. The police responded and she was examined with a rape kit. Various DNA samples were taken from her thighs and other parts of her body.
The victim described her attacker as an African-American male, who was taller than she, of slim build, and soft-spoken. She did not see his face, and she believed that he had been wearing a mask. She was unable to identify him. She also did not see the sharp object that he had held at her neck.
Within the next few weeks, defendant, an African-American male who lived in an adjoining development in North Brunswick, was identified as a suspect. Investigators obtained a court order authorizing them to obtain defendant's fingerprints and a buccal swab of his DNA. Pursuant to that court order, defendant was detained in the parking area of his building, where police obtained his fingerprints and a buccal swab. The police found in his possession a lighter, keys, a pair of black leather gloves, and a small sharp stick. The police also observed that a fence separating the victim's development from defendant's development had been cut or pushed through.
The DNA collected from the victim was initially analyzed by Lydia Schiffner, a forensic scientist in the State Police laboratory. Schiffner was able to create a full DNA profile of the person who had left his sperm on the victim. She wrote a report detailing her findings and the DNA profile. Thereafter, Schiffner relocated to Wisconsin. Another State Police analyst, Jennifer Banaag, took over responsibility for the case.
Banaag analyzed the DNA specimen taken from defendant and compared it with the DNA profile previously generated from the victim. Based on her expert analysis, Banaag concluded that the defendant's DNA matched the DNA taken from the victim. In particular, she found that the probabilities of such a "sperm-cell fraction" match were one in 1.3 quintillion African-Americans, and the probabilities for a "non-sperm cell fraction" match were one in 15.7 billion African-Americans. Banaag later acknowledged at trial that one of the sperm-cell fraction tests (sample "1-4"), excluded defendant as the DNA contributor, because it was the victim who had contributed the DNA on that particular sample.
Defendant was thereafter arrested and indicted. The case was tried over eight days in January 2007.
The pivotal issue at trial was identification. The victim was unable to identify defendant as her attacker. The State's key proof of identification was the DNA evidence linking defendant to the sperm found on the victim's thighs. Defendant's fingerprints could not be matched to the crime scene or the victim.
The State presented two expert witnesses at trial. It first presented another forensic scientist from the State Police, Charles Williams. Williams testified that the vaginal swabs taken from the victim were positive for sperm, and that swabs from her thighs were positive for sperm and blood. Williams did acknowledge on cross-examination that a single gray Caucasian head hair was found in the victim's underwear, and that the hair had been sent to the State Police laboratory along with the other samples.
Banaag was presented as the State's other expert. The defense did not object to Banaag's credentials, which include a Master's Degree in Forensic Science from George Washington University and extensive training in DNA analysis. She has been authorized, since 2004, to perform forensic analyses for the State Police at the DNA laboratory, which has been certified by the American Society of Crime Laboratory Directors. Banaag stated that she is usually assigned about ten forensic cases per month. She estimated that she has processed "over a thousand samples" with either the State Police or the Armed Forces DNA Laboratory.
Defense counsel did object to Banaag's testimony insofar as it referred to the analytic work performed earlier by Schiffner, who did not testify. Defense counsel argued that allowing Banaag to refer to Schiffner's work without having an opportunity to cross-examine Schiffner violated defendant's rights under the Confrontation Clause. The trial judge overruled the objection, discerning no constitutional deprivation.
The direct examination of Banaag then proceeded, which included her references to Schiffner's analysis. Defense counsel then cross-examined Banaag extensively, posing numerous questions that probed into possible flaws in the testing that had been performed by each of the analysts.
Defendant did not call any witnesses. In his closing argument, defense counsel focused upon the victim's inability to identify her attacker as well as the potential deficiencies in the State's DNA proofs. In particular, defense counsel stressed that Banaag had not personally tested the DNA extracted from the victim and, instead, had relied on Schiffner's work. Defense counsel further suggested that the samples could have been contaminated. Counsel also argued that defendant's physical characteristics did not match the victims' description and, in particular, that his build was not slim. He also emphasized the absence of fingerprint evidence identifying defendant as the attacker.
The prosecution, in turn, argued to the jury that the State had produced ample evidence to prove defendant's identity as the attacker beyond a reasonable doubt. Counsel stated that the expert testimony of Banaag sufficed to establish the DNA link between defendant and the victim. The prosecutor highlighted that there was no proof of any contamination of the DNA samples, or that the laboratory equipment used in analyzing the samples had malfunctioned. The prosecutor further noted that Banaag had reviewed Schiffner's results, and that there was no reason to doubt their accuracy. She asserted that the DNA analysis involved a well-established testing procedure "used worldwide," and that Banaag had not altered the DNA in any manner. As the prosecutor phrased it, "[t]he DNA solved this case."
Following the court's instructions, the jury rendered the verdict that we have previously described. Defendant was thereafter sentenced.
Defendant raises two points on appeal:
DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN ONE OF THE STATE'S FORENSIC SCIENTISTS WAS PERMITTED, OVER OBJECTION, TO TESTIFY TO RESULTS OBTAINED BY ANOTHER FORENSIC SCIENTIST WHEN THAT OTHER SCIENTIST DID NOT TESTIFY AND, HENCE, WAS NOT SUBJECT TO CROSS-EXAMINATION.
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
We address these points in turn.
The first issue on appeal is whether defendant's rights under the Confrontation Clause were violated because the State's testifying DNA expert, Banaag, referred in her testimony to the DNA analysis of the specimens from the victim performed by Schiffner. Although the issue is not free from doubt and could be affected by the outcome of a case on which the United States Supreme Court recently granted certiorari, we conclude that defendant was not deprived of his right of confrontation.
As we approach this issue, we recognize that Confrontation Clause jurisprudence, as explicated by the United States Supreme Court, is in a state of flux. The Sixth Amendment of the United States Constitution provides an accused, among other things, with "the right . . . to be confronted with the witnesses against him." U.S. Const., amend. VI. After years of case law interpreting this provision in a more permissive fashion, in 2004 the Court held, in its seminal opinion in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, ...