August 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRUCE D. STERLING, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2011
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 type of description "would apply to many, many reported sexual assaults."
However, the court found that the perpetrator's conduct with K.G. and L.R. "was so nearly identical as to constitute the defendant's signature crime or handiwork." The court reasoned that in both cases the perpetrator was alleged to have used a condom. The discovery materials indicated that K.G. said a condom wrapper was found next to her bed after the attack and L.R. saw her attacker put a condom on. The court was of the view that the use of a condom "obviously is fairly unusual or perhaps even unique in the context of forcible stranger to stranger sexual assaults."
The court also found significant that the perpetrator used a knife to "distinctively cut the victim[']s underwear off and exposed the - - the body of the victim by either ripping or cutting their tops off in a very unique manner." The judge further observed that in both cases "the attacker demonstrated an obvious sign that he took pleasure in the fact that the victims were white," thus suggesting that the same person committed both attacks. The court found that this evidence, taken together, established a "nearly identical method of committing the crime."
Applying the four-prong test for admissibility of other-crimes evidence as prescribed by State v. Cofield, 127 N.J. 328, 338 (1992), the court concluded that the first prong, that the evidence of the other crime must be relevant to a material issue, was satisfied because the identity of K.G.'s and L.R.'s attacker was an issue "and the evidence of L.R.'s attack [wa]s highly probative of the identity of the attacker in K.G." The court commented that in L.R.'s case there was DNA evidence and a positive identification, but for K.G. "all we have is the victim identifying the defendant as having a similar voice as her attacker." However, there was DNA evidence linking defendant to K.G. as well, although it was of the less conclusive mitochondrial type.
The second prong requires that the nature of the offenses be similar and reasonably close in time. Although the attacks on K.G. and L.R. were separated by one-and-one-half years, the court deemed that close enough. And, of course, the crimes were similar in nature. The court was satisfied that the third prong, which requires that evidence of the crimes be clear and convincing, was also met because victim testimony, DNA and other evidence established clearly and convincingly "that these crimes did take place."
Finally, the court addressed the fourth prong, which requires that the probative value not be outweighed by the apparent prejudice of the other-crimes evidence. The court said: "The identity of K.G.'s attacker clearly is a[n] issue. The strong similarities between the two assaults suggest that the same person committed them. And the [c]court does not find that there's anything particularly more heinous or necessarily prejudicial beyond the probative impact, which is great."
With respect to the 2005 burglary of S.P.'s home, the court concluded that those charges could be joined with the crimes against K.G. and L.R. "to demonstrat[e] to the jury the identity of the defendant and how he came to be linked to these earlier crimes." The court reasoned that joinder was proper "[n]ot so much pursuant to the standard . . . [R]ule 404[b] analysis, but because the crimes that took place against S.P. demonstrate a strong connection to the identity of the defendant," because "it was taking of the DNA sample from him at that time which allowed him to be connected and linked to the other crimes."
Further, defendant was found with a knife and condom on his person when he was apprehended in the aftermath of the S.P. episode. The judge felt that the evidence of the crimes against K.G. and L.R., particularly the use of a knife and condom, were also relevant to the prosecution of the burglary of S.P., because the State was required to prove "the defendant's intent to commit a sexual assault during the burglary."
The court found that the sexual assault of J.L. also could be tried with the burglary of S.P., but not with the other sexual assaults. The court reasoned that this was so because the crimes against S.P. would be admissible in the trial of the attack on J.L. The court explained it this way:
Again, there is evidence of a similar assault. DNA evidence links the defendant to both the crime against J.L., after the DNA sample was taken as a result of the arrest in the incident involving S.P.
And, most importantly, J.L. identified the defendant's gun as similar to the one that she was assaulted with. And here, again, the nature of the crimes against S.P. are not so prejudicial as to outweigh the probative value of having a jury understand how it came to be during the episode involving S.P. that the defendant was identified as having committed the crimes against J.L.
Finally, as we previously stated, the court held that the charges relating to T.G. had to be tried alone.
In his initial brief in A-0048-08T4, defendant raises the following arguments, which pertain to his convictions in the first trial for the three sets of offenses, those being the sexual assault of K.G. on June 9, 2003, the sexual assault of L.R. on January 18, 2005, and the burglary of S.P.'s home on May 27, 2005:
BECAUSE THE SEXUAL ASSAULTS AND THE BURGLARY DID NOT OCCUR CLOSE IN TIME AND WERE NOT SUFFICIENTLY SIMILAR TO EACH OTHER TO CONSTITUTE SIGNATURE CRIMES, THE COURT ERRED IN DENYING THE DEFENSE REQUEST FOR SEPARATE TRIALS ON EACH INCIDENT.
IN HER OPENING AND CLOSING STATEMENTS, THE PROSECUTOR TOLD THE JURY THAT THE ASSAILANT USED A CONDOM IN BOTH ASSAULTS DESPITE THE FACT THAT ONLY ONE OF THE VICTIMS TESTIFIED THAT THE ASSAILANT USED A CONDOM. (Not Raised Below)
THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED WHEN THE STATE PRESENTED MEDICAL EVIDENCE CONCERNING THE VICTIM IN COUNTS 8-13 BUT DID NOT CALL AS A WITNESS THE NURSE WHO CONDUCTED THE EXAMINATION AND PREPARED THE EVIDENCE.
A. Defendant Was Entitled to Cross-examine the
Declarant Who Drew the Medical Diagrams, Which Are Testimonial Statements.
B. There Was No Showing That the Witness Was Unavailable.
C. Defendant Was Prejudiced by the Loss of the Opportunity to Cross-examine the Witness.
THE COURT ERRED IN REITERATING ITS EXHORTATION TO REACH UNANIMITY INSTEAD OF ANSWERING THE JURY'S QUESTION ABOUT ITS "OPTIONS" IN THE EVENT IT COULD NOT REACH A UNANIMOUS VERDICT.
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT STERLING COMMITTED THE 2003 OFFENSE, CHARGED IN COUNTS 8-13. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE AGGREGATE TERM OF 80 YEARS, 64 1/2 YEARS WITHOUT PAROLE, IS EXCESSIVE.
In his initial brief in A-5579-06T4, defendant raises the following arguments, which pertain to his convictions in the second trial for the sexual assault of J.L. and related offenses on July 13, 2002, and, as a result of the sequential trial before the same jury, for the certain persons offense:
THREE WITNESSES WERE ALLOWED TO PROVIDE, AND THE PROSECUTOR TO COMMENT ON, EXTENSIVE IRRELEVANT, AND PREJUDICIAL EVIDENCE THAT INVITED JURORS TO CONCLUDE THAT BECAUSE DEFENDANT APPARENTLY PLANNED TO COMMIT A RAPE IN 2005, HE LIKELY COMMITTED THE 2002 RAPE FOR WHICH HE WAS ON TRIAL.
A. Evidence of the 2005 Crime Was Inadmissible and Highly Prejudicial.
B. If Evidence of the 2005 Crime Was Not Inadmissible in Its Entirety, It Should Have Been Sanitized.
C. The Limiting Instruction Could Not Counter the Harmful Impact of the Other-Crime Evidence.
WHERE THE VICTIM COULD NOT IDENTIFY DEFENDANT, THE COURT ERRED IN REFUSING DEFENDANT'S REQUEST TO INSTRUCT THE JURY THAT IT WAS THE STATE'S BURDEN TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT.
THE STATE INTRODUCED THE FORENSIC REPORT ON THE DNA EVIDENCE OBTAINED FROM THE VICTIM BUT DID NOT CALL THE ANALYST WHO TESTED THE EVIDENCE AND PRODUCED THE REPORT. (Not Raised Below)
THE WRITTEN INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT IMPROPERLY SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY.
(Not Raised Below)
After the initial briefs were filed by both parties, defendant filed a supplemental brief, raising the following arguments that pertain to both appeals:
IN THE ABSENCE OF PROBABLE CAUSE FOR THE SEARCH WARRANT, THE HANDGUN WAS ILLEGALLY SEIZED AND SHOULD HAVE BEEN EXCLUDED.
THE RESULTS OF THE DNA TESTS AND THE LINEUPS SHOULD HAVE BEEN EXCLUDED BECAUSE THE STATE DID NOT HAVE SUFFICIENT FACTS TO REQUIRE DEFENDANT TO SUBMIT BIOLOGICAL SAMPLES OR PARTICIPATE IN LINEUPS.
THE LINEUP EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE AID OF COUNSEL AT THE LINEUPS.
We agree with defendant's argument in Point I of his initial brief in each appeal, and reverse his convictions, except for the certain persons offense, on that basis. We will comment on the remaining points in defendant's initial brief to the extent we deem appropriate. We reject the arguments in defendant's supplemental brief. Other than defendant's argument that evidence of the handgun seized from his home should have been suppressed (which we reject), defendant has made no arguments as to why the certain persons conviction should be reversed. Accordingly, that conviction is affirmed.
The pivotal issues in these appeals are whether the court erred in permitting three sets of the charges to be tried together in the first trial, and whether it erred in allowing in the second trial other-crimes evidence (which derived from one of the crimes for which defendant was convicted in the first trial). We now address those issues, first with respect to the first trial, then the second trial.
In A-0048-08T4, defendant argues that the trial court erred when it denied his motion for separate trials for the sexual assaults of K.G. and L.R. and for the burglary of S.P. He argues that the sexual assaults of K.G. and L.R. were not committed in an especially unique or distinctive manner, and the court improperly redefined the concept of "identity" to allow joinder of the burglary charges of S.P. with the sexual assaults. We agree.
In determining whether a trial court properly denied a defendant's severance motion, the first inquiry is to examine whether the challenged counts were properly joined in the indictment in accordance with Rule 3:7-6, which sets forth the standard for permissible joinder of offenses in the same indictment. State v. Pitts, 116 N.J. 580, 599 (1989).
Under that rule:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
Joinder of the Burglary Charges of S.P. With the Charges Arising from the Sexual Assaults of K.G. and L.R.
The trial court erred when it held that the trial of the charges relating to the burglary of S.P.'s home could be joined with the trials for the sexual assaults on K.G. and L.R. The charges relating to the burglary of S.P.'s home were not of the same or similar character as the charges for the crimes against K.G. and L.R. No part of the S.P. charges refers to an attempt or an intent to commit a sexual assault. Instead, defendant was charged only with burglary for the purpose of committing an unspecified offense within S.P.'s home, and with weapons offenses.
Nor do the burglary charges meet the alternative standard of Rule 3:7-6 that the offenses can be charged in the same indictment if they are "based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." The burglary of S.P.'s home occurred two years after the attack on K.G., six months after the attack on L.R., and in a different town from the location of either sexual assault. Moreover, when defendant encountered S.P., he neither made sexual comments nor displayed a knife. The burglary charges were improperly joined in the indictment for the crimes against K.G. and L.R., because they were not based on the same transaction, not part of a common scheme or plan, and not of the same or similar character as the sexual assaults. R. 3:7-6.
The court also erred because it failed to conduct the second part of the inquiry, which required it to consider the prejudicial nature of the burglary evidence. Even if joinder of the offenses is allowed under Rule 3:7-6, the trial court is authorized under Rule 3:15-2(b) to grant a defendant relief "[i]f for any other reason it appears that a defendant . . . is prejudiced by a permissible . . . joinder of offenses."
The key determination in deciding whether joinder is prejudicial 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.'" State v. Oliver, 133 N.J. 141, 150-51 (1993) (quoting State v. Pitts, supra, 116 N.J. at 601-02). If the evidence would be admissible at both trials, the defendant will not suffer any more prejudice at a consolidated trial than if tried separately on the different charges. State v. Pitts, supra, 116 N.J. at 602. A trial court is accorded "ample discretion" in determining whether the potential prejudice to the defendant from the joinder of offenses in a single trial warrants severance. Id. at 601.
Under N.J.R.E. 404(b), formerly Evid. R. 55, evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The rule is one of exclusion, rather than inclusion. State v. Nance, 148 N.J. 376, 386 (1997).
In State v. Cofield, supra, 127 N.J. at 338, the Court established a general four-part test to "avoid the over-use of extrinsic evidence of other crimes or wrongs." Under that test,
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. [Ibid.]
In this case, the court found that evidence of the S.P. burglary was admissible in the trials for the crimes against K.G. and L.R. on the issue of identity. But, with no legal basis, it said that the Cofield analysis was inapplicable in reaching that conclusion. The court also failed to analyze the evidence under the law that is specifically applicable to the admission of other-crimes identity evidence.
In order for evidence of another crime to be admissible on the issue of identity it "must bear peculiar, unique, or bizarre similarities." State v. Fortin (Fortin I), 162 N.J. 517, 530 (2000). The two crimes "must be so nearly identical in method as to earmark the crime as defendant's handiwork." Id. (quoting State v. Reldan, 185 N.J. Super. 494, 503 (App. Div.), certif. denied, 91 N.J. 543 (1982)). Signature-crime evidence has been readily admitted "when the bizarre quality of the crime was self-evident." State v. Fortin (Fortin III), 189 N.J. 579, 594 (2007).
However, "when it is not obvious that the characteristics of a crime are unique," the evidence of the other crime is inadmissible. Id. at 595. Furthermore, "when the signature-like aspect" shared by both crimes would not be apparent to the ordinary juror, the State may be required to present expert testimony to explain the significance of the evidence. Id. at 596-97.
In this case, the court failed to identify the signature-like characteristics common to the S.P. burglary and the crimes against K.G. and L.R. There is no support in the law for the court's decision that the taking of defendant's DNA as a result of his arrest for the S.P. burglary was a sufficient basis to admit evidence of the burglary in the sexual assault trials. Under that reasoning, every crime that provided the basis for an order to compel DNA samples would be admissible in a defendant's trial for any other crime, and any crime for which a convicted defendant was ordered to provide statutorily compelled DNA samples under the DNA Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to -20.28, would be admissible in a trial for an unrelated crime.
Moreover, the court articulated no reason for the jury's need to know why or how the State came to obtain defendant's DNA. To the extent that information was relevant, the jury could have been told that it was obtained as a result of a court order. The only issue for the jury with respect to the DNA was whether the State had proven beyond a reasonable doubt that defendant's DNA matched the DNA evidence found at the scene of each sexual assault. The procedures by which the State acquired and handled the DNA evidence were relevant to that determination; the reason it obtained the evidence was not.
The court also cited defendant's possession of a knife and a condom when arrested for the S.P. burglary as support for its determination that the burglary could be joined with the sexual assaults. We do not agree. A man's possession of a condom in his wallet is hardly evidence that he intended to commit a sexual assault. It is unclear from the trial record whether the condom was even the same brand as the wrapper found in K.G.'s home. Defendant's possession of a condom provided no unique signature for both the burglary and the sexual assaults.
Nor did his possession of a knife provide a unique signature that linked the crimes. In addition to the fact that the use of a knife as a weapon is an extremely common occurrence, the finding of a small serrated knife in defendant's pocket bore no resemblance to the circumstances in K.G.'s attack, where the perpetrator used a large knife that he took from the victim's home. Nor did it provide unique evidence that linked it to L.R.'s crime, because she said only that her attacker had a small knife; she did not identify it as serrated.
Moreover, in considering whether the probative value of the other-crimes evidence is substantially outweighed by the risk of undue prejudice, the trial court must consider the availability of other, admissible evidence on the issue. State v. Jenkins, 178 N.J. 347, 365 (2004); State v. Covell, 157 N.J. 554, 569 (1999). The absence of less prejudicial evidence to establish the State's position on the issue for which it seeks to admit the other crimes evidence enhances the probative value of that evidence. State v. Long, 173 N.J. 138, 165 (2002).
In this case, the State had DNA evidence available from both the attack on K.G. and the attack on L.R. That evidence provided strong, scientific proof that identified defendant as the perpetrator of both sexual assaults. Although the DNA evidence for the attack on K.G. was less probative, because the mitochondrial DNA evidence did not exclude any of defendant's other maternal relatives as the perpetrator, it was far less prejudicial and more probative on the issue of the identity of K.G.'s attacker than the testimony describing defendant's involvement in the S.P. burglary years later.
The State also had identification testimony from both victims. We recognize that L.R.'s testimony regarding her lineup identification of defendant was open to challenge because she previously had selected another individual in an earlier lineup. But her trial testimony was unequivocal in its certainty that defendant was her attacker, and the validity of her lineup identification of defendant was bolstered by Jeffrey's description of L.R.'s strong and immediate reaction when she first saw defendant.
Similarly, K.G.'s lineup identification was less probative than that evidence for L.R. because, although she selected defendant, she said she was unsure. But the fact that defendant tried to break into S.P.'s home years after the attack on K.G. offered no direct evidential support for K.G.'s identification.
In the context of the attacks on K.G. and L.R., the evidence of the burglary of S.P.'s home established no more than the impermissible inference of defendant's propensity to unlawfully enter women's homes.
The court also improperly found that the cases could be tried together because evidence of the prior attacks on K.G. and L.R. would be admissible in the trial for the burglary of S.P.'s home. It said that the State was required to prove that defendant intended to commit a sexual assault during the burglary. However, the indictment never alleged that defendant entered the home to commit a sexual assault. It alleged only that he intended to commit "an offense."
Moreover, there was a complete lack of any signature characteristics between the sexual assaults and the burglary such that evidence of the sexual assaults on K.G. and L.R. would have been admissible to establish that defendant intended to sexually assault S.P. In contrast to his aggressive and threatening use of the knife in the other cases, defendant never threatened S.P. with the knife nor used it against her to force himself into her apartment, even though he encountered her alone in the middle of the night and watched as she opened her door and went inside. Evidence that defendant committed two sexual assaults under very different circumstances was not admissible to prove that he intended to commit a sexual assault or any other kind of offense if he had been successful in entering S.P.'s living room window.
We therefore conclude that the court mistakenly exercised its discretion when it joined the trial for defendant's burglary of S.P.'s home with the trial for the attacks on K.G. and L.R.
There was no basis to admit evidence of the burglary of S.P.'s home in the trials for the sexual assaults, or evidence of the sexual assaults in the trial for that burglary. The joinder of the burglary and sexual assault charges was highly prejudicial because it merely introduced a large amount of irrelevant other-crimes evidence to the jury's consideration of both the burglary and the sexual assaults.
Joinder of the Trials for the Sexual Assaults of K.G. and L.R.
We also agree with defendant that the court's exercise of discretion was mistaken when it found that the attacks against K.G. and L.R. could be tried together because they were committed in a "nearly identical" fashion. The record does not support the findings on which the court based its decision.
First, the court offered no basis for its finding that the use of a condom is "unique" in stranger-to-stranger sexual assaults. There was no evidence before the court to that effect. In a time when the identification potential of DNA evidence in semen is a common television theme, the likelihood that rapists would employ condoms for their own purposes might not be unusual.*fn2 We do not so find. However, the opposite finding cannot be judicially noticed.
Second, the trial court's finding that defendant's use of the knife to cut off the victims' clothes also was unique failed to acknowledge that defendant resorted to the use of the knife to cut L.R.'s clothes only after she did not comply with his direction that she remove them herself. The court's finding also failed to recognize that, in contrast to defendant's threats to K.G. that he would use the knife to stab her, and his violent stabbing of the knife into the bed, defendant repeatedly told L.R. that he would not hurt her. Further, unlike in the attack on L.R., in which the attacker came possessing a knife, there was no evidence that K.G.'s attacker did so; he used a kitchen knife from K.G.'s apartment.
Moreover, even if the court was correct that the use of a condom in such circumstances is rare, or that the use of the knife was unique, there was no basis for the court's presumption that ordinary jurors would have the knowledge of criminal conduct that would make the signature nature of those facts self-evident to them. When the signature aspect of a crime would not be apparent to a trier of fact, expert testimony may be required to explain the significance of the proffered signature evidence. Fortin III, supra, 189 N.J. at 596.
In Fortin III, the two sexual assault victims, one of whom also was murdered, suffered bite marks on their chins, left nipples and breasts, and rectal tearing. Id. at 588. The State sought to admit evidence of the second assault, which occurred in Maine in 1995, as signature-crime evidence to establish that the defendant was the man who sexually assaulted and murdered a woman in New Jersey in 1994. Id. at 585-88.
At a pre-trial hearing, the State sought to establish a foundation to admit testimony from an FBI expert, Robert Hazelwood, in modus operandi (M.O.) and ritualistic crimes that the pattern in the attacks showed they were committed by the same person. Fortin I, supra, 162 N.J. at 521-22. The trial court found that evidence of the prior crime was admissible under Cofield and, further, that Hazelwood's testimony was admissible, because the analyses of M.O. in homicide crimes and ritualistic behavior "involved something far beyond the knowledge, experience, or ability of the average fact-finder." Id. at 523-24. We affirmed the ruling that evidence of the prior crime was admissible, but held that the expert's analysis was not sufficiently reliable to be admitted as expert evidence. Id. at 524-25.
In considering the interlocutory appeals from both parties, the Supreme Court was "not so certain that the M.O. factors cited by Hazelwood, such as that both victims were mature females and were attacked while alone and at night time, demonstrate an 'unusual pattern.'" Id. at 532. But, it said, "if the witness can from a reliable data base offer evidence that a combination of bite marks on the breast, bite marks on the chin, and rectal tearing inflicted during a sexual attack is unique in his experience of investigating sexual assault crimes, that evidence could help to establish an 'unusual pattern.'" Ibid.
However, at trial after remand, the State failed to comply with the Court's mandate to present the database on which Hazelwood relied to reach his conclusions. Fortin III, supra, 189 N.J. at 588. The Court reversed the resulting conviction. Ibid. At the retrial, the State asserted that it was entitled to admit the evidence with no expert testimony or, alternatively, through testimony from the medical examiner and an expert odontologist that compared the bites and through search results from the FBI database. Id. at 589. The trial judge rejected that argument and required the production of a reliable database as a qualifier for the expert testimony. Id. at 592.
In a second interlocutory appeal, the Court concluded that the "average juror cannot be expected to have the knowledge or experience to discern whether bite marks are a common or highly distinctive feature of violent sexual assaults." Id. at 596. The State was required to provide expert testimony, such as the medical testimony, and it also was required to provide a database that supported the expert's conclusions. Id. at 597-98.
In this case, the signature characteristics of the crime relied on by the trial court to find that the crimes against K.G. and L.R. were "identical" were far less distinctive than the bite-mark evidence in Fortin. At the very minimum, the State was required to introduce expert evidence to assist the court in determining at a hearing outside the jury's presence whether the use of a condom in a sexual assault, along with the use of a knife and racial comments such as those made by defendant, was such a unique pattern that a jury could find that the crimes were committed by the same person.
Summary Regarding Joinder of Offenses in the First Trial In summary, the trial court erred when it determined that the burglary charges and both sexual assault charges could be joined for trial. The S.P. burglary charge should not have been joined in the indictment with the sexual assault charges, because they failed to meet the requirements of Rule 3:7-6, and they shared no signature characteristics with the sexual assault charges that would allow all of the crimes to be tried together.
The court also erred when it determined that the sexual assault charges for K.G. and L.R. could be tried together. There was no support for its determination that the circumstances of the attacks were nearly identical or, if they were, that the average juror would have the knowledge to determine whether those characteristics meant that the crimes likely were committed by the same person. If the State wanted to try the crimes against K.G. and L.R. together, it was required to present expert evidence to establish the signature-like characteristics of the crimes. If the State chooses on remand to proceed in this manner, we express no view as to whether such expert evidence would suffice.
In A-5579-06T4, defendant argues that he is entitled to a new trial for the 2002 sexual assault of J.L. because the trial court erroneously admitted extensive prejudicial other-crimes evidence of the May 2005 burglary of S.P.'s home. We agree.
In considering defendant's motion to sever the trials of each of the five victims, the court found that the attack on J.L. could not be tried with the other crimes because the evidence provided no basis to conclude that it was a signature crime by defendant. But it concluded that the burglary charges involving S.P. were admissible at defendant's trial for the attack on J.L. This was because the DNA evidence that linked him to the crime against J.L. was taken as a result of his arrest in the incident involving S.P. and, "most importantly, J.L. identified the defendant's gun as similar to the one that she was assaulted with." The court found that "the nature of the crimes against S.P. [were] not so prejudicial as to outweigh the probative value of having a jury understand how it came to be during the episode involving S.P. that the defendant was identified as having committed the crimes against J.L."
In her opening statement, the prosecutor described the events of the S.P. burglary, defendant's resulting arrest, and the search of his apartment that revealed a silver handgun. She also told the jury that his DNA was taken as a result of this arrest and that it matched the sample from J.L.
Then, in testimony that covers more than fifty pages of trial transcript, S.P., her fiancee, and Marshall described in detail the circumstances of defendant's burglary and arrest.
The court provided no limiting instruction when any of these witnesses testified. In her summation, the prosecutor again described the S.P. burglary and defendant's capture.
In its final charge, the court instructed the jury as follows:
[S]ometimes evidence is only admitted for a very limited purpose. It can't be considered for any purpose that you would like to consider it for. You can only consider it for the purpose that it has been admitted. That means that even though you may remember the testimony you can only consider it again for the limited purpose.
Now, an example in this case is that the State introduced evidence that on May 27th, 2005, the defendant allegedly had an encounter with [S.P.] and [her fiancee] that led to his arrest on these charges ultimately contained in this indictment. Now, our Rules of Evidence ordinarily exclude evidence that a defendant may have engaged in some other type of conduct that's not in the indictment when it's offered to show that, well, he must be a bad guy or he must have done other things wrong or whatever, and, therefore, he must be guilty of the crimes charged in the indictment. We don't permit evidence to be used for that purpose; however, our rules do permit evidence of other conduct that's not contained in the indictment when the evidence is used for a very specific or narrow purpose. Here the evidence of this encounter with [S.P.] and [her fiancee] was only admitted for the limited purpose of explaining to you or trying to show you how the defendant came to be charged with the offenses contained in this indictment, so you can't use that evidence to decide that the defendant has a tendency to commit crimes or that just because he approached [S.P.] he must be guilty of the crimes in this indictment. Okay? The evidence cannot be used for that purpose and you should not consider it for that purpose. The evidence was only allowed so that you could have an understanding of how it was that the defendant came to be arrested, detained and then charged with these crimes in this indictment. So again you cannot use the evidence to -- you can't consider the evidence of his encounter with [S.P.] as evidence of guilt for this crime or these crimes in the indictment.
Defendant argues that admission of the S.P. evidence was improper because "[t]he inescapable inference from the extensive evidence about the 2005 incident as well as the prosecutor's remarks is that [defendant] viewed [S.P.] as sexual prey, and that he attempted to enter her apartment with the intent to rape her." The evidence "invited the jury to conclude that [defendant] planned to rape [S.P.] in 2005, and, accordingly, was likely guilty of raping [J.L.] in 2002."
The party seeking to admit other-crimes evidence bears the burden of establishing that the probative value is not outweighed by the prejudice. State v. Reddish, 181 N.J. 553, 608-09 (2004). A trial court's determination regarding the admissibility of other-crimes evidence is reviewed under the abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483 (1997).
The State argues that the trial court properly admitted evidence of the S.P. burglary to provide the identity of J.L.'s attacker. Generally, however, evidence of another crime is admissible on the issue of identity only if it bears "peculiar, unique, or bizarre similarities" that mark the two crimes as the defendant's handiwork. Fortin I, supra, 162 N.J. at 530.
The State makes no argument that the crimes against J.L. and S.P. bore any unique similarities that would identify defendant as the perpetrator of the attack on J.L. Instead, it argues that "[e]vidence surrounding" defendant's encounter with S.P. "was admissible to show how defendant came to be charged with the offenses committed against [J.L.] in July 2002, in that police obtained a DNA sample from defendant and recovered the distinctive handgun he used on her in the subsequent search of his apartment."
Evidence of a later crime also may be admitted on the issue of identity where, for example, defendant's connection to the first crime was established by evidence discovered during the second. State v. Pierro, 355 N.J. Super. 109, 117-18 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003). In Pierro, two homes in the same neighborhood were burglarized four days apart. Id. at 113. Items stolen from the first home included a social security card, two credit cards, a boating safety certificate and a library card, all of which were in the homeowner's name. Ibid. Defendant was apprehended within minutes of the second burglary, because a neighbor, who heard glass break and saw someone on the porch, had called the police. Id. at 113-14. When the defendant was discovered hiding under a nearby bush, he had underneath his body the social security card, credit cards, library card, and boating safety certificate of the first homeowner. Id. at 114.
His motion to sever the trials of the two incidents was denied. Id. at 116. We agreed, because in a trial of the first incident the State would be entitled to prove that the defendant had been found in possession of items stolen from the house. Id. at 117. When unexplained, a defendant's exclusive possession of stolen items shortly after the theft justifies the inference that he was the thief. Ibid.
Evidence of the stolen documents also would have been admissible in the trial of the second burglary. Id. at 118-19. Although the documents did not prove any element of the second offense, they were admissible to counter the defendant's testimony, in which he denied breaking into either home and claimed he had found the documents on the street. Ibid. The jury could have found that the defendant had attempted to hide the evidence of the first burglary, in part, to decrease the likelihood of his arrest for the second one based on suspicions that would be raised by his possession of another's identification. Id. at 119. The State also was entitled to show that the defendant was lying when he offered an explanation for his possession that put him in a better light than he deserved. Ibid.
In State v. Hardaway, 269 N.J. Super. 627, 629 (App. Div. 1994), the defendant was convicted of manslaughter and weapons offenses for his presence when his brother shot and killed the victim while the defendant egged him on. To establish the defendant's presence at the scene, over the defendant's objection, the State presented evidence that the defendant had used the same gun that killed the victim to commit an armed robbery in the parking lot of a nightclub two-and-a-half weeks after the shooting. Ibid. On appeal, the defendant conceded that evidence of his subsequent possession of the handgun was admissible, but he argued that the detailed testimony offered by the two robbery victims was prejudicial. Id. at 629-30.
We agreed and reversed the convictions. Id. at 630. The victims' testimony was unnecessary and prejudicial. Id. at 630-31. In addition to the victims, there was testimony from the constable who apprehended the defendant in the parking lot immediately after the robbery. Id. at 630. The constable had found the handgun in the defendant's waistband when the defendant was rolled over, after he had been handcuffed. Ibid. We found that the defendant's possession of the gun that was used to kill the victim "could have been proved by the constable's testimony alone without displaying the robbery victims to the jury and having them describe the terror of the armed robbery." Id. at 631. The evidence had the clear capacity to bring about an unjust result, because the State's primary evidence against the defendant for the homicide consisted of the testimony of a felon whose credibility was questionable. Ibid.
The circumstances of this case provide none of the bases for the admission of other-crimes evidence found in Pierro and Hardaway. When defendant was arrested for the S.P. burglary, he had in his possession no items from J.L.'s assault three years earlier, including the handgun that he allegedly used to subdue J.L. A gun was found later in his home.
Moreover, as with Hardaway, the extent of the proffered evidence of the unrelated burglary of S.P.'s home was unnecessary and highly prejudicial. In determining whether the probative value of particular other-crimes evidence is outweighed by its potential for undue prejudice, the court should consider whether other evidence is available to prove the same point. Jenkins, supra, 178 N.J. at 365. In this case, the State introduced evidence that defendant's DNA was found on cervical swabs of J.L. taken after the attack. This scientific proof provided strong evidence of defendant's identity as J.L.'s attacker. There was no need for the State to explain how it obtained defendant's DNA, or to rely on any link between defendant's crimes against S.P. and the attack on J.L. Evidence of the S.P. encounter served no purpose other than to suggest to the jury that defendant had a propensity to commit crimes against women.
Moreover, even when evidence of the other crime is admitted properly, the trial court is required to sanitize the evidence to accommodate the right of the objecting party to minimize the inherent prejudice of such evidence. State v. Barden, 195 N.J. 375, 390 (2008). That did not happen here. The jury heard extensive testimony from multiple witnesses of a crime for which defendant was not on trial. The witnesses apparently were instructed to avoid discussing the actual burglary, but evidence of the burglary was introduced. Moreover, even if the jury had not heard details of the actual crime, it heard Marshall's testimony of the police response to the scene and the circumstances of defendant's arrest with his unzipped pants and a condom and knife in his pocket.
The evidence of the S.P. burglary had no probative value in defendant's trial for his attack on J.L. It served only to paint defendant as a bad person who committed crimes against women. The trial court mistakenly exercised its discretion when it admitted that evidence.
The State argues that, if any error occurred, it was harmless, because the jury convicted defendant based on the DNA evidence and his possession of the distinctive gun. The distinguishing features of the gun are unclear from the appellate record, other than the fact that it was silver. But the mere fact of defendant's possession of a gun years later provided little evidence that it was the gun he used against J.L. Defendant's girlfriend testified only that he had had a silver gun before the attack on J.L., but he had disposed of it. She could not say whether the gun seized from their apartment in 2005 was the same gun defendant had in 2002.
Although the DNA evidence was very strong, it was based on an analysis done many years earlier that generated only an "interpreted sperm donor profile" because the specimens showed mixed male and female DNA. It cannot be said that the prejudice that was certainly generated by the extensive evidence of defendant's role in another crime, where he was identified at the scene as the perpetrator, did not influence the jury's consideration of the DNA evidence.
Accordingly, defendant's conviction for the crimes pertaining to J.L. is reversed, and the matter is remanded for a new trial.
For the reasons we have already discussed, the errors we have described were extremely prejudicial and cannot be disregarded as harmless. We now expand on the harmless error issue in light of our Supreme Court's recent decision in State v. Gillispie, ____ N.J. ____ (2011). In Gillispie, the Court did not establish new law, but rested its finding of harmless error on the existence of overwhelming proof of guilt despite the erroneous admission of improperly unsanitized other-crimes evidence. Gillispie, supra, ____ N.J. at ____ (slip op. at 43); cf. State v. Rose, 206 N.J. 141, 182 (2011) (decided the day before and holding that other-crimes evidence may no longer be admitted under the doctrine of res gestae).
Gillispie is distinguishable from the appeals before us because, unlike these cases, in Gillispie the other-crimes evidence was admissible on the issue of identity. State v. Gillispie, supra, ___ N.J. at ___ (slip op. at 39-40). The only issues were whether the extensive detail of the other-crimes evidence introduced at trial was unduly prejudicial and, if so, whether the error was harmless. Id. at _____ (slip op. at 40-45). But in the trials in this case, the evidence was inadmissible for the purposes found by the trial court and the other proofs were not overwhelming.
In Gillispie, two co-defendants, Gillispie and Buttler, were charged with the murder and robbery of a mother and son in Barnegat, twenty days after a violent robbery of a barbershop in the Bronx. Id. at _____ (slip op. at 3-4). The same gun was used in both crimes. Id. at ____ (slip op. at 11).
At separate New Jersey trials, Keith Mercer, one of the accomplices to both crimes testified in detail regarding the circumstances of the barbershop murder. Id. at ____ (slip op. at 10-11, 18). The jury also heard detailed testimony from a New York police detective, who described the injuries of the barbershop's three gunshot victims and the fact that one of the recovered "copper round[s]" from the gun had fallen out of a victim's body. Id. at ____ (slip op. at 12-14, 19-20). In addition, at Gillispie's trial, the detective read into the record Gillispie's statement to the New York police regarding the barbershop robbery, including his admission that he had possessed the gun during the robbery. Id. at ____ (slip op. at 14-15). The detective also testified that Gillispie told him that he had "shot the people in New Jersey." Id. at ____ (slip op. at 15).
Regarding the Barnegat murders, Mercer "provided an exhaustive account" of the murders at both trials. Id. at ____ (slip op. at 7, 18). At Gillispie's trial, witnesses placed him near the scene. Id. at ____ (slip op. at 9). His roommate testified that he showed her some diamond rings the night of the murders, which had been stolen from one of the victims, and that he became irate when he believed her boyfriend had stolen the rings because he said he "had to put bullet holes" in people to get them. Id. at ____ (slip op. at 16-17). Witnesses at Buttler's trial testified that they had overheard him planning the Barnegat robbery, and that he later admitted that he had robbed and killed two people in New Jersey. Id. at ____ (slip op. at 7-9, 18). Phone records linked him to one of the victims. Id. at ____ (slip op. at 44).
Both this court and the Supreme Court found that evidence of the defendants' involvement in the Bronx robbery was relevant on the issue of the identity of the perpetrators of the Barnegat murders, because the same gun was used in both crimes and evidence of the Bronx robbery was clear and convincing. Id. at ____ (slip op. at 33-37). The Court observed that other-crimes evidence is admissible on the issue of identity when it involves evidence of a defendant's participation in multiple "signature" crimes or when, as in Gillispie, a "defendant can be connected to a weapon or disguise used in a prior criminal transaction." Id. at ____ (slip op. at 33).
This court had reversed the convictions because we found that the prejudice from the unsanitized other-crimes evidence substantially outweighed its probative value. Id. at ____ (slip op. at 2). The Supreme Court agreed that "there [wa]s no excuse for admitting the unduly prejudicial evidence of the details of the barbershop robbery, including that a bullet fell from the body of a victim." Id. at ____ (slip op. at 40). Evidence that the same gun was used in both crimes and Gillispie's admission that the gun was in his possession was sufficient to prove identity without the details of the actual shootings and injuries. Id. at ____ (slip op. at 40).
However the Court affirmed the convictions because it concluded that the erroneous admission of the unsanitized evidence was harmless. Id. at ____ (slip op. at 43). At each trial there was "overwhelming proof" of the defendant's guilt that was independent of the other-crimes evidence and that went beyond the evidence offered by Mercer. Ibid. Both defendants were overheard planning the robbery and murder of a New Jersey drug dealer, Gillispie admitted that he committed the Barnegat crimes, and testimony placed Gillispie in Barnegat on the night of the murders and linked him to two rings stolen from a victim. Id. at ____ (slip op. at 44).
The harmless error analysis in Gillispie does not change our conclusion that the errors we have described are not harmless. The circumstances in Gillispie are distinguishable from both of the trials that are before us.
First, in neither trial was evidence of the other crimes admissible on the issue of identity. In the first trial, for the sexual assaults and robberies of K.G. and L.R. and the burglary of S.P.'s home, the sole basis for the trial court's joinder of the sexual assaults and burglary trials was its finding that evidence of the S.P. burglary was admissible regarding the sexual assaults because defendant's arrest in the burglary led to the discovery of his DNA, which matched DNA evidence from the earlier sexual assaults.
But DNA evidence provided after an arrest in a particular crime is not the equivalent of signature conduct during a crime, nor is it the type of identity evidence obtained when the same weapon is used in multiple crimes and the defendant has been identified as the possessor of the weapon, as occurred in Gillispie. There also was no basis in the record for the trial court's findings that the trials for the sexual assaults of K.G. and L.R. could be joined because the circumstances of the crimes against them were "nearly identical;" moreover, the mere fact that DNA evidence linked the defendant to both sexual assaults did not render them signature crimes. Unlike Gillispie, the other-crimes evidence from any one of the three criminal episodes in defendant's first trial was not relevant to the issue of the identity of the perpetrator.
Nor was it relevant in defendant's second trial, where defendant was tried for the sexual assault of J.L. with a gun and the court admitted the evidence of the S.P. burglary. The circumstances of that trial are closer to those in Gillispie but remain distinguishable in key respects.
Similar to Gillispie, in defendant's second trial the court admitted the other-crimes evidence as relevant to identity based on the involvement of a gun. It found that evidence of the entire S.P. burglary was admissible because the gun was found during a search of defendant's home that was conducted after the burglary. But that decision was erroneous because, although evidence of the search was admissible, there was no reason to introduce detailed evidence of the crime that prompted the search warrant. No gun was found on defendant's person when he was apprehended and identified as the individual who tried to enter S.P.'s home, and defendant did not brandish one during the crime.
Unlike Gillispie, the gun was involved only in the crime for which defendant was being tried, the attack on J.L. In contrast, in Gillispie, the gun was used in both the other crime and the crime for which the defendant was being tried, and the defendant's identity as its owner was established by the events of the first crime and his confession to the police that he possessed the gun during that crime.
No other-crimes evidence was admissible in either of defendant's trials, unlike Gillispie, where the evidence was admissible and the error arose from failure to sanitize it. Moreover, as we have stated, the erroneous admission of the evidence in defendant's trials was not harmless.
As to defendant's first trial, the State argues that "any error in the joinder of the charges from the 2003 and 2005 assault was harmless" because "[i]t was the DNA evidence, mitochondrial evidence, in-court identification and defendant's distinctive manner in which he committed the sexual assaults that led the jury to convict defendant." It similarly relies on the DNA evidence to argue that in defendant's second trial the admission of evidence of the S.P. burglary was harmless: "It was the DNA evidence, and the possession of the distinctive gun, identified by [J.L.], which led the jury to convict defendant."
The presence of DNA evidence to establish a perpetrator's identity does not necessarily render other trial errors harmless. In State v. Bradshaw, 195 N.J. 493, 496-99 (2008), the defendant was convicted of the robbery and sexual assault of a woman who had been walking home late at night. Id. at 496, 499. The victim was high on heroin at the time of the attack, but she was able to describe her attacker, and DNA evidence from her vaginal swabs matched the defendant's DNA. Id. at 496-98.
When apprehended, the defendant initially told police that he and the victim had had consensual sex. Id. at 497. But during the trial he informed the court that he intended to testify that he was elsewhere at the time of the attack and that he had not had consensual sex with the victim. Id. at 498. The court precluded the testimony because the defendant had failed to comply with Rule 3:12-2, that required him to provide the State with notice that he intended to rely on an alibi. Id. at 498-99.
The Supreme Court found that the trial court abused its discretion when it denied the defendant the right to present his alibi testimony. Id. at 507-09. Further, despite the existence of the DNA evidence, the error was not deemed harmless. Id. at 509. The State's expert had raised an issue of contamination of the DNA testing process, which provided a basis for the jury to conclude that the evidence was not conclusive. Ibid. Moreover, it was for the jury to decide the witnesses' credibility. Ibid.
In defendant's second trial, DNA provided the sole admissible evidence that identified defendant as J.L.'s attacker. J.L. was unable to identify defendant in a lineup and she never identified him in court. She said defendant's gun was similar to the one used by her attacker but, unlike Gillispie, no ballistics evidence or confession provided a more definitive link between the gun and the crime. Further, the court improperly admitted evidence of the S.P. burglary on the issue of identification.
In defendant's first trial, the strength of the independent evidence of defendant's guilt differed for each of the three victims. The evidence of defendant's involvement in the S.P. burglary was very strong as he was captured near the scene and identified shortly thereafter by two people. Evidence of his sexual assault of L.R. included nuclear DNA evidence, which strongly supported his guilt. L.R. also identified defendant in a lineup, but that occurred several months after the attack and only after she had selected another individual who she was "ninety percent" sure was her attacker. Evidence of defendant's guilt in the sexual assault of K.G. was the weakest of the crimes for which defendant was tried in the first trial. K.G. never identified him in a lineup and the mitochondrial DNA evidence was less conclusive than nuclear DNA evidence. Although there was independent evidence in all three cases, none of them involved the plethora of evidence available in Gillispie, and only in the case against defendant for the burglary of S.P. could the evidence be called overwhelming.
Moreover, unlike Gillispie, defendant's first trial involved the actual joinder of the trials of three separate criminal episodes, rather than the admission of other-crimes evidence in a trial for one of them. The potential harmfulness of the other-crimes evidence was greatly enhanced by its interrelated effect on three separate convictions, rather than one.
For all of these reasons, the decision in Gillispie does not alter our conclusion that the errors we have described were not harmless.
We next address the issues defendant raises in his supplemental brief. After his arrest on May 27, 2005, when he was apprehended in the aftermath of the burglary of S.P.'s home, the police applied for a search warrant of defendant's home and an order requiring him to provide biological samples and participate in lineups. An evidentiary hearing was conducted on the day of defendant's arrest before a judge who would not later be the trial judge, whom we will refer as the "motion judge."
The motion judge heard testimony from Investigator Randi Colatrella that the police believed defendant might have been involved in eight other unsolved sexual assaults and burglaries in the Middlesex County area that were similar in nature. Based on her training and experience, Colatrella believed that the crimes were similar based on: the victims' description of their attacker as being a black male in his late twenties or early thirties, and approximately six feet tall with a large build; the victims' description of the man as saying "pretty nasty words" to them in a "very calm manner;" his use of a condom; the size of the victims; and the fact that defendant, a black male, six feet tall, thirty-five years old, with a large build, was engaged in a similar behavior when he was arrested and had in his possession a knife and a Lifestyle condom. Moreover, the suspect in some of the sexual assaults used the term "Ma" or "Mama," a term which defendant used when talking to S.P. and during the police interrogation.
The State sought a search warrant for defendant's home because it believed it could find hairs, fibers, and other trace evidence associated with the sexual assaults, various items of the attackers' clothing that were described by the victims, the victims' panties and undergarments that the attacker took from them, knives, screwdrivers, handguns, burglary tools, condoms and lubricants.
The motion judge found sufficient similarities between the descriptions of the prior incidents and defendant, and the incident that led to his arrest to "give rise to a reasonable and probable cause to believe that he may have been involved in the prior incidents." He issued the search warrants for defendant's work locker, home and automobile. He also found that probable cause existed to conduct physical lineups, and to obtain buccal swabs, and head, pubic and facial hairs from defendant for DNA comparisons.
Execution of the search warrant resulted in the seizure from defendant's home of the gun we have described. As a result of the orders compelling defendant to do so, he gave biological exemplars and was placed in lineups. Defendant moved to suppress the gun, the identifications from the court-ordered lineups, and DNA tests.
The suppression motion was heard by the trial court on April 12, 2006. The judge did not take testimony, but based his decision solely on the transcript of the probable cause hearing that had been held before the motion judge.
Defendant argued that probable cause was lacking for the search warrants because the only similarities between the unsolved sexual assaults was that a black male had been involved. He contended that the State had improperly suggested to the motion judge that there was a single perpetrator of all the crimes, because the State already knew that the evidence had yielded at least three different DNA profiles.
He also argued that the evidence of the lineups and body exemplars should be suppressed because the State failed to follow the procedures required to justify orders issued under the court rules for investigative detentions, and failed to establish an emergent basis that would allow the orders to be issued without following those procedures. In addition, the orders were improper because defendant already had requested counsel, but the State proceeded ex parte and defendant was never notified that he had a right to counsel under the application.
The trial court held that the motion judge had properly found that probable cause existed to issue the search warrants. Contrary to defendant's argument, the unlikelihood that all of assaults were committed by the same person was not the standard by which probable cause should be measured. The State was required only to establish that defendant might have committed one or more of the sexual assaults, and that evidence of the assault might have been obtained from the requested searches.
The court's review of the investigator's testimony showed that "the State was able to articulate a well-grounded suspicion that this defendant may have committed one or more of the earlier attacks and, therefore, evidence of those earlier attacks could be found in his home, his car or his locker." The court acknowledged its obligation "to give substantial deference to the reviewing [j]udge." Moreover, the court rules on investigative detention were designed to encourage the police to obtain judicial approval, which occurred here, and that practice should not be discouraged by the use of suppression measures.
The court rejected defendant's argument that the orders for the DNA and body exemplars were issued improperly. First, he found that the court rules for investigative detentions did not apply under these circumstances. The rules were intended to offer procedural protections to individuals who were not incarcerated or under arrest, but whom the State sought to subject to a temporary investigative detention for a lineup or to supply identifying information. In this case, defendant was already arrested and incarcerated. "He was not the subject of an investigative detention. He was the subject of an arrest and incarceration."
Second, even if the rules did apply, the State had complied "with the spirit of the rule" and the standard for an investigative detention. The motion judge's probable cause finding also provided the "reasonable and well-grounded suspicion" that crimes had been committed and that the results of defendant's physical characteristics "would significantly advance the investigation."
The State did not comply with the specific provisions in the rules that required the State to give defendant advance notice and the opportunity to obtain a lawyer to witness the lineup. But that failure did not require suppression of the evidence for two reasons. First, a defendant has the right to counsel on a case-specific basis for a lineup that occurs after indictment or the initiation of adversarial proceedings. But defendant had not been charged in any of the sexual assaults and no complaint had been filed. Second, even if the rule applied, the remedy for its violation would not be to suppress the evidence. There was nothing to suggest that the lineup would have been conducted differently if counsel had been present and, "as someone who was arrested clearly the defendant would have been required to provide his DNA anyway." Defendant was not prejudiced by the absence of counsel and nothing in the law provided for the suppression of evidence as a remedy for violation of the investigative detention rules.
We first address defendant's argument that the trial court erred in denying his motion to suppress evidence of the gun. To issue a warrant to search an individual's home, a judge must be satisfied that there is probable cause to believe that evidence of a crime will be found there. State v. Sullivan, 169 N.J. 204, 210 (2001). A finding of probable cause must be supported by "sufficient specific information" that a search of the location will yield evidence of past or present criminal activity. State v. Keyes, 184 N.J. 541, 553 (2005). When the search warrant is for a home or other location, probable cause "requires 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)).
A search of a home executed pursuant to a search warrant is presumed to be valid. State v. Jones, 179 N.J. 377, 388 (2004). A reviewing court must "'pay substantial deference to the issuing court's finding of probable cause.'" Chippero, supra, 201 N.J. at 33 (quoting State v. Perry, 59 N.J. 383, 393 (1971)). The defendant that challenges the validity of the warrant has the burden to prove that there was no probable cause to support its issuance. Jones, supra, 179 N.J. at 388.
In determining whether a warrant was properly based on probable cause, courts apply a totality of the circumstances test. Keyes, supra, 184 N.J. at 554. Ordinarily, any doubts as to the validity of the warrant should be resolved by sustaining the search. Ibid.
Defendant repeats before us the arguments he made before the trial court in support of his contention that probable cause to search his home was not established. He asserts that the State improperly "encouraged" the motion judge to infer that he was responsible for all nine offenses, when it omitted from the warrant information that DNA analyses already had established that the crimes were committed by at least three different men. Like the trial court, we find defendant's arguments unpersuasive.
When the State sought to search defendant's home and to obtain exemplars, it did not know the identity of the perpetrators of the various unsolved sexual assaults. It was sufficient that there was a reasonable basis upon which to believe that defendant's DNA could have matched any one of them, which, in fact, it did. Further, there were other considerable similarities before the motion judge. Defendant called S.P. "Ma" or "Mama," which was the phrase also used by some of the other attackers. There was also defendant's manner with S.P. and his attempt to portray himself to her as a gentleman, which was somewhat consistent with the distinctive way other attackers had of addressing their victims in a calming manner. Defendant also drove a car similar to that used in one of the attacks. Most importantly, defendant was caught trying to enter an apartment in Middlesex County in the middle of the night with a knife and condom, where he knew a woman lived and might be alone.
The trial court properly found that the motion judge did not mistakenly exercise his discretion in issuing the search warrant. The trial court properly extended to the motion judge's determination the substantial deference to which it was entitled. There was no error in denying defendant's motion to suppress evidence of the gun.
In Point II of his supplemental brief, defendant argues that evidence obtained as a result of his lineups and the testing of his DNA should have been excluded because the State failed to establish probable cause to justify the orders for lineups and exemplars. For the reasons we have already stated, there was sufficient probable cause to justify these orders.
Defendant further argues that the evidence failed to meet the standards required for an investigative detention under the court rules. Under Rule 3:5A-1:
Prior to the filing of a formal criminal charge against a person, an order authorizing the temporary detention of that person and compelling that person to submit to non-testimonial identification procedures for the purpose of obtaining evidence of that person's physical characteristics may be issued by a judge of the Superior Court pursuant to this Rule, on an application authorized in writing by the Attorney General or the Attorney General's designee or by the County Prosecutor or designated Assistant Prosecutor.
The grounds for issuance of the order are set forth in Rule 3:5A-4 and include, among other requirements, that there be "a reasonable and well-grounded basis from which to believe that the person sought may have committed the crime." R. 3:5A-4(b).
However, as the trial court correctly found, investigative detention orders are "by definition, to be directed against unarrested and uncharged suspects." State v. Rolle, 265 N.J. Super. 482, 486 (App. Div.), certif. denied, 134 N.J. 562 (1993). The investigative detention rules were adopted pursuant to the Supreme Court's direction in State v. Hall, 93 N.J. 552, 567, cert. denied, 464 U.S. 1008, 104 S. Ct. 526, 78 L. Ed. 2d 709 (1983). See Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:5A-9 (2011).
In that case, the Court held that a trial court's constitutional powers over searches and seizures encompassed the authority to issue orders for pre-charge or pre-arrest detention. Hall, supra, 93 N.J. at 557. An individual who is compelled to submit to a lineup is detained by the police and his or her personal liberty is restrained in a manner similar to any seizure or arrest. Id. at 558.
However, "an evidential finding of probable cause to believe that a particular individual has committed a crime is not an absolute prerequisite for judicial authorization of an investigatory detention." Id. at 561-62. Instead, among other evidential requirements, to obtain an order for an investigative detention "the police must demonstrate a reasonable and well-grounded basis to believe that the individual sought as the subject of the investigative detention may have committed the crime under investigation." Id. at 562.
The Court in Hall never considered the standards to be applied where, as here, the State seeks to compel an individual's participation in a lineup while he or she already is incarcerated on other, unrelated charges. But in State v. Foy, 146 N.J. Super. 378, 391-92 (Law Div. 1976), appeal dismissed, 153 N.J. Super. 503 (App. Div. 1977), decided prior to Hall, the Law Division had held that an incarcerated suspect cannot be compelled to appear in a lineup on charges unrelated to his or her incarceration, absent the same "well-grounded suspicion" that would be the required showing if he or she were out on bail.
Although the court rules for investigative detention do not apply here, under Foy, the State nevertheless was required to establish the well-grounded suspicion that defendant was the perpetrator of the crimes that provided the basis for its request. Defendant argues that the State failed to do so. However, the record supports the trial court's determination that the motion judge's probable cause finding provided the well-grounded suspicion necessary to issue the order for the lineup and the body exemplars.
A reviewing court must "pay substantial deference to the issuing court's finding of probable cause." Chippero, supra, 201 N.J. at 33 (quoting Perry, supra, 59 N.J. at 393). The testimony before the motion judge clearly supported his probable cause determination, and, like the trial court, we have no occasion to reject it.
Defendant argues that the trial court erred in denying his motion to suppress evidence resulting from the lineups, because the lineups were conducted in violation of his constitutional right to counsel. He argues that he had previously invoked his right to counsel while being interrogated for the S.P. burglary, but no attorney had been appointed by the time the lineup was ordered. We do not agree.
The Sixth Amendment right to counsel is triggered by adversarial judicial proceedings, which may commence by a formal charge, indictment, preliminary hearing, information or arraignment. State ex rel. P.M.P., 200 N.J. 166, 174 (2009); State v. A.G.D., 178 N.J. 56, 63 (2003). An accused is entitled to counsel at a post-indictment lineup because the period from indictment to trial is a "critical stage of the prosecution." United States v. Wade, 388 U.S. 218, 236-37, 87 S. Ct. 1926, 1937, 18 L. Ed. 2d 1149, 1162-63 (1967); State v. Farrow, 61 N.J. 434, 446-50 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). When there is a failure to provide counsel, the lineup identification evidence must be excluded. Farrow, supra, 61 N.J. at 447. But an accused has no right to counsel at a pre-indictment, pre-charge lineup. Kirby v. Illinois, 406 U.S. 682, 690, 92 S. Ct. 1877, 1882-83, 32 L. Ed. 2d 411, 418 (1972); State v. Earle, 60 N.J. 550, 552 (1972).
Defendant contends that he was entitled to counsel for the lineups in the sexual assault case because his arrest and the filing of the complaint in the S.P. burglary charge "constituted the commencement of an adversarial judicial proceeding" against him. This argument is meritless because, although defendant's right to counsel had attached for the S.P. burglary charges, that right "is 'offense specific' in its attachment." State v. Harris, 181 N.J. 391, 435 (2004) (quoting Texas v. Cobb, 532 U.S. 162, 164, 121 S. Ct. 1335, 1339, 149 L. Ed. 2d 321, 326 (2001)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Defendant was not entitled to counsel for the lineups for the sexual assault cases because the S.P. burglary charges were unrelated to the sexual assaults of the other victims, for which defendant had not yet been indicted. The fact that defendant had invoked his right to counsel for the burglary charge did not preclude the police from conducting a pre-indictment, pre-charge lineup for the unrelated sexual assault crimes.
Defendant's remaining arguments require little or no discussion.
In A-0048-08T4, defendant argues for the first time on appeal in Point II that the prosecutor improperly told the jury that the assailant used a condom in sexually assaulting both L.R. and K.G. However, only one of those victims testified to that effect at trial. Defendant is correct. However, any error by the prosecutor in that regard was harmless. In any event, in light of our reversal, it is of no consequence.
Defendant argues for the first time on appeal in A-0048-08T4 in Point V that the State failed to prove beyond a reasonable doubt that he committed the offenses against K.G., as charged in counts eight through thirteen. Because defendant failed to move for a new trial on this basis, the issue is not properly before us. See R. 2:10-1. Further, the argument lacks substantive merit.
In Point IV in A-0048-08T4, defendant argues that he is entitled to a new trial because the court improperly responded to a question from the jury during deliberations. The argument lacks merit. See R. 2:11-3(e)(2). Further, in light of our reversal, it is of no consequence.
Likewise, in both appeals, defendant argues that the court's instruction on his right to remain silent improperly suggested that defendant had an obligation to testify. The model charge has been revised to address the error asserted by defendant, and we trust that the revised charge will be used upon retrial if defendant does not testify and requests the charge. Such errors in these trials were harmless and would not warrant reversal. State v. Miller, 205 N.J. 109, 126-27 (2011).
Defendant's excessive sentence argument, contained in Point VII of A-0048-08T4, does not warrant discussion in light of our reversal.
In Point III of A-0048-08T4, defendant argues that he was improperly denied the right to confront a witness against him, namely, the nurse who drew the medical diagrams that were entered in evidence, without that witness' testimony at trial. We agree with defendant. Under the recent Confrontation Clause jurisprudence of the United States Supreme Court, the diagrams of K.G.'s injuries prepared by the nurse at the rape crisis center qualify as testimonial hearsay and, notwithstanding the existence of any evidence rule creating a hearsay exception, they could not be presented at trial without the live testimony of the witness who prepared them.
In this case, we find the error harmless. Unlike cases in which a laboratory report or certificate is admitted to prove a critical fact in issue and had the clear capacity to lead the jury to a verdict it otherwise might not have reached, the diagrams here were probative on the issue of penetration, which was not in dispute. K.G. unequivocally testified that penetration had occurred. Defendant did not argue or suggest in any way that K.G. had not been sexually assaulted. His argument was that the State failed to prove that he was the perpetrator. Nothing in the nurse's diagrams or report went to the issue of identification. Accordingly, although this was error, standing alone it would not provide a basis for reversal. Of course, the error should not be repeated upon retrial.
In Point II in A-5579-06T4, defendant argues that the court erred in failing to give an identification charge. This argument pertains to the second trial. J.L. did not identify defendant as her assailant. Defense counsel requested an identification charge. The court noted that the model jury charge regarding identification pertained to situations in which in-court and out-of-court identifications were made, and were inapplicable in this case. The judge suggested that defense counsel could draft a suggested charge, which the court would consider. Defense counsel did not do so. Defendant now argues that the court's failure to give the charge constituted plain error, clearly capable of causing an unjust result. R. 2:10-2.
Because of our reversal on other grounds, we need not decide whether failure to give an identification charge was error, and, if so, whether it was harmless. We find merit in the State's argument that the instruction on the substantive offenses repeatedly informed the jury that it must find that "defendant" committed each element of each offense, and therefore clearly and unambiguously instructed them that they must not only find that an offense occurred but that it was defendant who committed it. On the other hand, it is clear that the critical issue in the case was identification, and the victim was unable to identity defendant. Certainly, a specific instruction on identification would have assisted the jury in its fact-finding function.
On appeal, defendant argues that the court should have instructed the jury in accordance with the introductory paragraph to the model charge pertaining to in-court and out-of-court identifications as follows:
(Defendant) as part of [his/her] general denial of guilt contends that the State has no presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it. [Model Jury Charge (Criminal), "Identification: In-Court and Out-Of-Court Identifications" (2007).]
We agree with defendant that this would have been an appropriate instruction in defendant's second trial. Upon retrial, an instruction along these lines should be given. This suggestion is tempered, of course, by the recognition that the evidence might be different, counsel may request different charges, and the trial court retains discretion in fashioning an appropriate instruction.
In Point III in A-5579-06T4, defendant argues that his confrontation rights were violated because the State was permitted to introduce evidence of matters contained in the forensic report of Strauss, an NJSP laboratory technician who analyzed biological evidence taken from J.L. and generated a DNA profile, but Strauss did not testify. Instead, Banaag, an NJSP laboratory forensic scientist, provided testimony. Banaag examined the buccal swab taken from defendant in 2005 and prepared a DNA profile. After reviewing Strauss' worksheets and data and being satisfied the profile Strauss had prepared was correctly done, Banaag opined at trial that the profile she developed in 2005 and the profile prepared by Strauss in 2002 were a match.
Defendant did not object to this procedure at trial, and he now asserts plain error. In light of our reversal on other grounds, we decline to address the issue. On retrial, the State may indeed call Strauss as a witness. Or, alternatively, defendant may expressly waive Strauss' appearance and any potential right of confrontation with respect to her testimony.
Finally, as we stated at the outset of this opinion, we leave in effect defendant's certain persons conviction, resulting from the sequential second phase of the second trial. As we stated, defendant has provided no argument as to why that conviction should be reversed, other than his argument that the court erred in denying his motion to suppress evidence of the gun seized from his home. We have rejected that argument. And, we find no infirmity in defendant's certain persons conviction based upon any trial errors.
In State v. Ingenito, 87 N.J. 204, 213-17 (1981), and State v. Ragland, 105 N.J. 189, 194-96 (1986), the Court established the procedures to be employed when a defendant is charged with a certain persons offense and other offenses. Because evidence of the defendant's prior conviction that formed the basis for the certain persons charge would prejudice the jury's determination of the other charges, the trial on that charge is severed from the other offenses. Ragland, supra, 105 N.J. at 193; Ingenito, supra, 87 N.J. at 206.
At the second phase of the trial, the State is required to prove beyond a reasonable doubt "each and every material element" that constitutes the crime, including that of possession, even though the jury likely will have considered it in the previous trial. Ragland, supra, 105 N.J. at 193-94. When the second trial is conducted before the same jury, the jury must "be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict." Id. at 195.
This procedure was followed in defendant's second trial. The jury found defendant guilty of the certain persons charge in a separate trial. Accordingly, defendant's conviction on the certain persons charge was decided independently of his other convictions. Further, the straightforward elements of the certain persons offense require proof that (1) the item is a firearm, (2) defendant purchased, owned, possessed, or controlled it, and (3) defendant was previously convicted of one of the enumerated predicate offenses. See N.J.S.A. 2C:39-7b(1). Once the suppression motion was lost and the gun was allowed to be entered into evidence, along with testimony establishing that it was found in defendant's home, and defendant's stipulation that he committed a predicate offense, the elements were unrebutted and easily proven.
We have no reason to believe that the jury's determination that the State proved those three elements beyond reasonable doubt was in any way affected by the trial errors we have described. Accordingly, those errors did not have the clear capacity to induce the jury to reach a result it would not otherwise have reached with respect to this offense.
Accordingly, the certain persons conviction under Count One of Indictment No. 05-10-1411, and the sentence for that offense of ten years imprisonment with a five-year parole disqualifier, will remain undisturbed.
In A-5579-06T4, defendant's certain persons conviction and sentence under Indictment No. 05-10-1411 is affirmed.
All of defendant's convictions under Indictment 05-10-1410 in both appeals are reversed, and the matter is remanded for further proceedings in accordance with this opinion.
Affirmed in part; reversed in part.