On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-10-1410 and 05-10-1411.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sabatino and Alvarez.
In this opinion, we dispose of two appeals by defendant, Bruce D. Sterling, which we now consolidate for disposition in this single opinion.
In Indictment No. 05-10-1410, defendant was charged with multiple offenses against five different victims on five separate dates between 2002 and 2005. Over defendant's objection, the trial judge allowed the State to try three sets of the offenses together in a single trial. A fourth set of charges was tried separately, but the court permitted the State to present evidence in that trial of one of the offenses from the previous trial. The fifth set of charges was dismissed on the State's motion. Defendant was convicted of all of the offenses arising out of these four criminal events.
In Indictment No. 05-10-1411, defendant was charged with second-degree certain persons not to possess firearms (certain persons). This charge was tried sequentially by the jury in the second trial that we previously mentioned. Defendant was found guilty of this offense.
Defendant was sentenced to an aggregate term of eighty years imprisonment, of which he is required to serve at least sixty-four-and-one-half years before becoming eligible for parole.
We conclude that the trial court erred in allowing the three criminal events to be tried in a single trial, and further erred in allowing in the second trial evidence of one of the prior crimes. We also conclude that, with the exception of the certain persons conviction, these errors were not harmless, that they deprived defendant of fair trials, and that reversal of all of defendant's other convictions in both appeals is required. Defendant's conviction and sentence of ten years imprisonment with a five-year parole disqualifier for the certain persons offense is affirmed.
The victims of all of the crimes were women. Three sets of crimes for which defendant was tried were for aggravated sexual assault and related offenses. The fourth was for second-degree burglary and related offenses.
Identification of the perpetrator was a key issue in the sexual assault cases. The trial court's determination of the joinder and other-crimes evidence issues was directed toward the identification issue, and that is now the primary issue in these appeals.
The five criminal episodes charged in Indictment No. 05-10-1410, were as follows:
(1) Counts one through seven charged defendant with offenses occurring on July 13, 2002, against J.L. in New Brunswick. They included second-degree burglary, N.J.S.A. 2C:18-2, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. These counts also included charges of second-degree sexual assault, third-degree aggravated assault, third-degree unlawful possession of a handgun without a permit, second-degree possession of handgun for an unlawful purpose, and third-degree terroristic threats.
(2) Counts eight through thirteen charged defendant with crimes that occurred on June 9, 2003, against K.G. at a different location in New Brunswick. These included second-degree burglary and first-degree aggravated sexual assault, as well as second-degree sexual assault, fourth-degree unlawful possession of a knife under circumstances not manifestly appropriate for its use, third-degree possession of a knife for unlawful purposes, and third-degree terroristic threats.
(3) Counts fourteen through eighteen charged defendant with offenses that occurred on January 18, 2005, against L.R. in Edison. These included second-degree burglary and first-degree aggravated sexual assault, as well as second-degree sexual assault, fourth-degree unlawful possession of a knife under circumstances not manifestly appropriate for its use, and third-degree possession of a knife for an unlawful purpose.
(4) Counts nineteen through twenty-one charged defendant with crimes that occurred on April 24, 2005, against T.G. at a third location in New Brunswick. These included second-degree burglary and first-degree aggravated sexual assault, as well as second-degree sexual assault. These are the counts that never went to trial and were ultimately dismissed.
(5) Counts twenty-two through twenty-four charged defendant with crimes against S.P. that occurred on May 27, 2005, in North Brunswick. These included second-degree burglary, fourth-degree unlawful possession of a knife under circumstances not manifestly appropriate for its use, and third-degree possession of a knife for an unlawful purpose.
Indictment No. 05-10-1411 charged defendant with two counts. The first charged the certain persons offense, N.J.S.A. 2C:39-7b(1). This was based on defendant's possession of a handgun on May 27, 2005, which was seized from his home on that date during a search conducted pursuant to a search warrant. The second count, third-degree receiving stolen property by receiving a stolen handgun on May 27, 2005, was later dismissed by the State.
On January 26, 2006, the court heard argument on defendant's motion to have all of the sets of charges tried separately. The court ruled that the charges pertaining to K.G. and L.R. should be tried together. However, the court held that the charges relating to T.G. had to be tried separately from the other sexual assaults. The court allowed the State the option to join the trial on the burglary of S.P. with either the trial on the charges relating to K.G. and L.R. or with the charges relating to J.L.
Defendant was tried from September 8 to 15, 2006, on the charges pertaining to K.G., L.R., and S.P.*fn1 The jury found him guilty of all charges.
From January 8 to 12, 2007, defendant was tried on the charges relating to J.L., and was found guilty of all charges. The trial sequentially continued before the same jury on the certain persons offense under Indictment No. 05-10-1411, and the jury found defendant guilty of that charge.
On February 23, 2007, the court imposed sentence on all of the charges, resulting in the aggregate term we previously mentioned.
We now describe the facts in each of the criminal episodes as developed at each of the trials. We begin with the three sets of charges that were tried jointly in the first trial, namely, those relating to the June 9, 2003 sexual assault of K.G., the January 18, 2005 sexual assault of L.R., and the May 27, 2005 burglary of S.P.'s home.
June 9, 2003 sexual assault of K.G.
On June 9, 2003, twenty-five-year-old K.G. lived with her sister in the bottom floor of a two-story, two-family home in New Brunswick. Her sister was at work that night. At 3:30 a.m., K.G. was asleep in her bedroom. She had locked all the doors, but the kitchen window "was left open about an inch." She was awakened by the sound of her bedroom door opening. She saw a silhouette of a large figure with a knife in his hand.
The man told her "not to make any noise" and he threatened to cut her throat. K.G. pleaded with him to leave, but he slapped her across the face and told her to "shut up." He took the knife and pressed it to her cheek, and then he "stabbed it really hard" into the bed next to her. He crawled onto the bed, took off her pajama pants, and used the knife to cut off one side of her underwear. The man was wearing latex gloves. K.G. "asked him if he was going to use a condom." He said he would.
As K.G. pleaded with her attacker and offered him money, he "repeatedly threatened to cut [her], to slit [her] throat."
He told her that he had been "watching" her, but she had never seen him before. K.G. said she was "too terrified to look" at the man while he raped her and "didn't get a good look." She "remember[ed] the voice more than anything." He was African-American, "on the husky side." She said he "looked tall" to her, but that might have been because she was lying down.
He asked her if she "had ever been with a black man," and said "I know you want to be with a black man, things to that effect." He fondled her breasts, kissed her mouth and penetrated her vagina with his penis. When he finished he put on his pants, got off the bed, and backed out of her room, telling her "to stay still, not to do anything" for some period of time.
K.G. waited "a minute or two" after the man left. She then called the police. When the police arrived, she provided a description of her attacker and discovered that the kitchen window "was wide open." The police found a lawn chair that had been placed underneath to gain access to the window.
One of the large kitchen knives was missing from a butcher block near the window. The police recovered it from the backyard. K.G. said it looked like the knife that her attacker had used. On K.G.'s bed, the police found a condom wrapper, which was different from the brand used by K.G.'s boyfriend. They found no witnesses who had heard or seen anything. The police took K.G. to a rape crisis center where she was examined.
Defendant lived in New Brunswick and was employed at Robert Wood Johnson Medical Center as a critical care technician. The hospital was approximately one-half mile from K.G.'s apartment, and it took an investigator approximately four minutes to drive between the hospital and the apartment.
On June 8, 2003, defendant punched in to work at 11 p.m., and he punched out at 7:40 a.m. on June 9, 2003, several hours after the time K.G. was attacked. Employees were entitled to a thirty-minute dinner break and two fifteen-minute breaks, which they could aggregate into one hour of break time. They were permitted to leave the premises for their breaks. Employees routinely disregarded the hospital policy that required them to punch out and punch back in.
On June 6, 2005, two years after she had been attacked, K.G. viewed a lineup of six men, one at a time, who were asked to read a quote from her statement to the police, "shut up or I'll cut your throat." She testified that all of the men were "easily dismissible," except one, referring to defendant, whose "voice sounded very familiar" and whose stocky build "looked like the build" she remembered. She told the police that the man "had a similar build and voice, but it wasn't definite."
K.G. was not asked at trial to identify defendant as her attacker. Instead, the prosecutor said, "I am going to ask you [K.G.] to take a look at this individual that you see seated right here, and I am going to ask you whether or not you gave him permission to enter your home on June 9th of 2003?" She said, "No."
When K.G. was brought to the rape crisis center, she was examined by a nurse, Adrienne Garber, who compiled a rape kit for K.G. Garber's supervisor, Eileen Aiossa testified at trial that Garber was "out of the country." She offered no testimony regarding the contents of the record of K.G.'s examination, but she said the record was kept in the ordinary course of business at the center.
Jennifer Moser, a New Jersey State Police (NJSP) forensic scientist, testified that on K.G.'s pajama bottoms she located one hair that exhibited characteristics of "Negroid" body hair. The hair was unsuitable for nuclear DNA testing, because it had no follicular material or actively growing root that would contain living cells. But mitochondrial DNA testing could be done on a hair shaft. The hair was sent to Mitotyping Technologies for analysis.
Terry Melton, president and CEO of Mitotyping Technologies, testified that her laboratory developed a mitochondrial DNA profile for a hair sample taken from defendant and the hair removed from K.G.'s pajama pants. A comparison of the hairs showed that they contained the same mitochondrial DNA sequence.
Unlike nuclear DNA, which is inherited from both parents and is unique to an individual and his or her identical twin, mitochondrial DNA is inherited intact only from an individual's mother. An individual and his or her siblings all will share the same type of mitochondrial DNA. Mitochondrial DNA testing can be used in cases where there is very little DNA in a sample, and it is commonly used on hairs that have been shed at a crime scene and that have no substantial root that would allow for nuclear DNA testing. Mitochondrial testing is the only type of DNA test that can be done on hairs that are broken or shed. Every cell has "hundreds to thousands of copies of mitochondrial DNA," but only two copies of nuclear DNA.
The tests determine whether a DNA sequence in an individual hair is the same as the DNA sequence in a particular individual. The result is compared to an FBI database of 4800 people to determine how common or rare the sequence is in the population.
Using statistical sampling methods, the examiner calculates how often the type of mitochondrial DNA in the sample appears in the general population.
Melton testified that a comparison with the FBI database showed that .06 percent or six in 10,000 North Americans would be expected to have the same type of mitochondrial DNA sequence. Defendant could not be excluded from the pool of people who could have left the hair found on K.G.'s pajamas.
January 18, 2005 sexual assault of L.R.
On January 18, 2005, a year-and-a-half after K.G. was assaulted, at approximately 6:45 p.m., thirty-nine-year-old L.R. was sexually assaulted while alone in an apartment in Edison that she shared with her son. L.R. had come home at 6 p.m. and changed her clothes. Her son was not at home. She used her microwave to make dinner and ate it standing in her kitchen, which looked out onto the parking lot behind the building. She made a telephone call from the phone in her son's bedroom. When she came out of the bedroom, her front door was open and a man was standing in her apartment.
L.R. started to scream. The intruder told her not to scream and that he would not hurt her. They were "staring at each other" and he asked L.R. if she had any money. L.R. said she did, but her bag was in the dining room. He told her, "no, wait" and told her to take off her clothes. She asked him to take her money and jewelry and "just go," but he repeated that she should take off her clothes.
L.R. began screaming again. The man told her to stop, that he was not going to hurt her. He had "a little knife" that he used to cut off all the buttons on her t-shirt. He then cut her bra and told her to take off her pants. He pushed her onto the bed and began to take off her pants. He cut the left side of her underwear with the knife.
He licked her breasts and neck, and penetrated her vagina with his penis. While he raped her, he told her that if she "was going to scream" and if she called the police that he was "going to come back and he's going to f[_ _ _] me again." He backed out of the room saying that if she called the police, "he's going to come back and he's going to hurt [me]." He said to her, "[N]ow I have white pussy and I'm going to f[_ _ _] you again."
When he left the apartment, L.R. called her ex-husband and then the police. She was taken to a rape crisis center, where she was examined by Aiossa.
L.R. described her attacker to the police as a dark-complected African-American with a "very straight nose and round big eyes" and "some kind of defect of his speech." She said when he spoke "his tongue come [sic] out from his teeth," so that he said "I'm not going to hurth you." He was tall and he appeared "chubby" because he "was wearing a lot of winter clothes," which she described more particularly as a dark winter jacket with a hood, and "another hood under his eyebrow [sic]." The room had only a night table light with a sixty-watt bulb.
The police determined that the attacker had entered and exited from a back door that led to the parking area. A person that stood outside the back entrance could see into L.R.'s kitchen into the area where her microwave was located.
On February 11, 2005, L.R. viewed a lineup of six men. She selected an individual, who was not defendant, and said that she was "ninety percent" sure he was her attacker.
On May 31, 2005, L.R. viewed six individuals in a lineup that included defendant. Pamela Jeffrey of the Middlesex County Prosecutor's Office fugitive unit conducted the lineup. She testified that, "as soon as" defendant came out and began to move to his spot in the lineup, L.R. "immediately" covered her mouth and moved away from the door and up against the wall.
L.R. began to cry and said "it's him, it's him."
At trial L.R. said she "was sure one hundred percent" that defendant was her attacker. She explained that, when she saw the men in the second lineup, "I was so shocked because it was him and it's no really mistake that I can make at this time it was him who was standing in my apartment with a knife." L.R. made an in-court identification of defendant at trial.
Aiossa, the forensic nurse who examined L.R. when she was brought to the rape crisis center, was the coordinator for the Sexual Assault Nurse Examiner Program (SANE) of Middlesex County, part of a statewide Sexual Assault Response Team (SART) program, which was made up of representatives from law enforcement, patient advocates, and the sexual assault nurse examiner. SANE forensic nurses receive special training and a certification from the State and the Board of Nursing.
Aiossa described the "head to toe exam" conducted by SANE nurses, which began with "comb[ing] through the person's hair looking for any kind of fibers or possibly hair left behind from the suspect." Aiossa also testified regarding the specific swabbings she had obtained during her examination of L.R. and the injuries she observed.
It was her practice to swab each patient's cheek to obtain their DNA, and if oral sex was involved, she swabbed the patient's mouth between their gum and cheek. Aiossa swabbed under a patient's fingernails in case the suspect's DNA could be retrieved from the suspect's skin left under the patient's fingernails during a struggle.
She conducted an interior visual gynecological exam to look for injuries to the vaginal area. She swabbed the cervix area and exterior genital area "looking for if any secretions are left behind, saliva, and then we can get DNA from that." She also collected the patient's clothing.
Aiossa used a standardized "evidence collection kit" in her examination. The forensic kit was sealed and, with the patient's permission, the kit and the clothing were turned over to law enforcement, maintaining the chain of custody. Her examination resulted in what she described as "[o]ne sealed forensic kit and one seventeen page forensic record," one copy of which went into the forensic kit that was sent to the laboratory, one copy went to the investigating agency, and Aiossa kept the third copy.
Jennifer Banaag, a forensic scientist with the NJSP DNA laboratory, testified that her analysis of the DNA in dried secretions taken from L.R.'s neck and left breast showed within a reasonable degree of scientific certainty that defendant was the source of the secretions on L.R.'s breast. She also said that he had provided the major DNA profile of the dried secretions taken from her neck.
May 27, 2005 burglary of S.P.'s home
A little more than three months after the attack on L.R., on May 27, 2005, thirty-one-year-old S.P. was living in an apartment complex in North Brunswick with her fiancee and her three children. At 2:40 a.m., she left the apartment to go for a walk after she and her fiancee argued. She testified: "I heard a gentleman say, hey, mama, can I talk to you? I turned around, looked at the person, turned back to head towards my apartment and he started to cut through the grass headed towards my door. When [sic] he told me that I didn't have to worry, that he was a gentleman."
The man "started to walk faster" as S.P. turned to go toward her front door. She was facing him and was able to get a good look at him. She told him that her fiancee was in the house and he "apologized." S.P. went inside her apartment and locked the door. She told her fiancee that someone had tried to talk to her, and she then went into her bedroom.
Five minutes later, S.P.'s fiancee noticed that the handle of the door that S.P. had entered was "jiggling," and he "realized somebody was trying to open the door." He then saw the living room window, the screen and the blind, "all three came up at the same time" and he saw a man. He asked the man what he was doing, and the man dropped the blind and ran.
S.P.'s fiancee chased the man, and S.P. called the police. She gave them a description of the man who had spoken to her.
When the police arrived, S.P.'s fiancee gave them a description of the man he chased. Officer Tawana Marshall found defendant "hiding behind a tree." Marshall asked defendant "to come out from behind the tree, and he complied, smiling." Defendant was "sweating profusely, his clothes were missed [sic] up and his zipper was down." Among the items in his pockets were a folding knife with a serrated edge, a Lifestyle brand condom, and the key to a Honda. S.P. and her fiancee both identified defendant at the scene as the man they had encountered.
We now describe the facts as developed in the second trial, which pertained only to the July 13, 2002 attack on J.L., and the sequential trial before the same jury on the separately-indicted certain persons offense, which occurred on May 27, 2005.
July 13, 2002 sexual assault of J.L.
On July 13, 2002, twenty-year-old J.L. was living with her boyfriend and three other roommates in a four-bedroom house in New Brunswick. J.L. returned to the house, after running errands, to quickly retrieve some clothes before leaving for a family vacation. She parked in front of the house, blocking her neighbor's driveway, activated the car's hazard lights, and went inside. She did not lock the door because she intended to be there only for a few minutes. No one else was home.
While in her first-floor bedroom, J.L. heard the front screen door swing shut, and turned to see a man standing in her bedroom doorway. She thought the man was there to see one of her roommates, and she asked if she could help him.
He told her, "[T]ake your clothes off or I'm going to shoot you." J.L. then saw that he had "a very large gun," and the part she could see was "shiny silver." The man wore "big reflective sunglasses and a baseball cap." J.L. started to scream. The man came up behind her, put his hand over her mouth and told her to "shut up" or he would shoot her. He pushed her down on the bed face-first. She was crying and he kept telling her to shut up. He locked the bedroom door and quickly looked out of the window. J.L. told him that she had $600 in cash, which she offered to him, but he did not respond.
The man returned to the bed and removed J.L.'s shoes, underwear and pants, and he pulled down his own pants. J.L. lifted her head to look at him, but he hit her in the jaw with his fist and the gun and told her not to look at him. After trying unsuccessfully to penetrate her vagina with his penis, he turned her over face-up and then penetrated her. He lifted up her shirt and pushed up her bra. J.L. thought she heard the snap of a condom but she was unsure.
When the man was done, he asked her where was the money. J.L. told him it was in her car. He looked out of the window again and told her to count and wait five minutes, and that if he saw her come outside before that, he would shoot her. She waited five minutes and then drove to St. Peter's Hospital because she was afraid he would return. The assailant did not take the money from J.L.'s car because it was locked.
The police took J.L. from St. Peter's to the rape crisis center, where she was examined by Aiossa. Aiossa prepared a rape kit that was given to the police.
At trial, Banaag testified that DNA from a buccal swab taken from defendant matched the DNA profile that had been generated from a sperm donor profile obtained from a cervical swab of J.L. in 2002. The 2002 profile had been developed by another scientist at the NJSP DNA laboratory, Marlene Strauss, who had prepared a report of her analysis of vaginal, cervical and buccal swabs of J.L. Strauss did not testify. Banaag described the contents of Strauss's 2002 report and said she had reviewed Strauss's worksheets and data to ensure they were correct. She said that the mixture of male and female DNA in the swabs from J.L. meant that Strauss had to create an interpreted sperm donor profile. When Banaag compared the results of defendant's buccal swab with the profile Strauss had generated in 2002 of the samples taken from J.L., she concluded within a reasonable degree of scientific certainty that defendant's DNA profile matched the specimen generated by Strauss in 2002.
After defendant was apprehended in connection with the S.P. burglary on May 27, 2005, J.L. viewed a lineup of suspects that included defendant, but she was unable to identify any of the men as her attacker three years earlier. At trial, the prosecutor never asked J.L. if defendant was the person who raped her. Instead, as with K.G. in the first trial, the prosecutor asked if J.L. had ever given defendant permission to enter her home or engage in any act of sexual penetration, and J.L. said "no."
Also at trial, J.L. was shown the gun that was seized from defendant's home on May 27, 2005, and she said it looked like the one her attacker had used in 2002.
In addition to evidence relating to the assault on J.L., the jury was permitted to hear, pursuant to the court's pre-trial ruling, extensive testimony regarding the burglary of S.P.'s home, for which defendant had been convicted previously.
Both S.P. and her fiancee described their encounter with defendant on May 27, 2005, in testimony that was very similar to that which they had given in defendant's trial for that crime.
However, in both her opening statement that described the testimony, and during the direct examination of S.P's fiancee the prosecutor avoided eliciting evidence that defendant had attempted to enter the home. But on cross-examination, the fiancee stated that defendant had caught his attention because the living room window and blind that had been closed suddenly raised up.
Officer Marshall also provided extensive testimony covering twenty pages in the transcript regarding her response to S.P.'s 911 call and her subsequent arrest of defendant. She said that when she found defendant "his zipper was down" and he had a folded, serrated knife in his pocket and a condom. S.P. and Marshall identified defendant in court as the individual they had encountered on May 27, 2005.
The May 27, 2005 certain persons offense
In the aftermath of defendant's apprehension following the burglary of S.P.'s home on May 27, 2005, the police executed a search warrant on that date. They found a handgun in the bedroom of defendant's home. Defendant's girlfriend testified that just before June 2002, when their son was born, defendant had shown her a silver handgun. She told him to get rid of the gun and she never saw it again. She could not be sure if the gun the police seized in 2005 was the same gun defendant had in 2002. The prosecutor and defense stipulated in the second phase of the trial that defendant had previously been convicted of a predicate offense that made it illegal for him to own or possess a firearm.
In a pre-trial motion, defendant argued that the trials relating to each of the five victims should be severed, because the evidence was insufficient to establish that the crimes were "signature crimes," part of a common scheme or plan, or to show identity. Defendant relied upon a number of dissimilarities: the crimes occurred at different times from 2:30 p.m. until 5:30 a.m.; in one instance the perpetrator had a gun, in two others a knife, but the perpetrator had no weapon in another case; there was no similarity in the clothing of the perpetrator, who wore a baseball cap and sunglasses in one case, a hooded sweatshirt in another, and made no attempt to hide his identity in three of the cases; the victims ranged in age from twenty to thirty-nine years; and the crimes took place in different locations, with three in New Brunswick, one in Edison, and one in North Brunswick.
The State insisted that the crimes demonstrated a pattern that "would point to the identity of the perpetrator." The prosecutor argued that the victims' description of the perpetrator was similar, although she did not specify how. She argued that these were all home invasions, a weapon was involved, and there was "some attempt on the part of the perpetrator to subdue his victim, whether it be by a knife, whether it be by a gun, or whether it be by his own hands in an attempt to strangle . . . ."
The court first noted that the fact that the sexual assaults were against white women who described their attacker as an African-American man who was armed with a weapon and used force was "clearly" insufficient to show "a distinctive signature of criminality." That ...