On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-03-0376.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Yannotti and Espinosa.
Defendant Charles E. Macon was tried before a jury, found guilty of carjacking and robbery, and sentenced to thirty years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction entered by the trial court on July 11, 2008. For the reasons that follow, we affirm.
Defendant was charged with first-degree carjacking, in violation of N.J.S.A. 2C:15-2(a)(1); second-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1); third-degree burglary, in violation of N.J.S.A. 2C:18-2(a)(1); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(7); and fourth-degree contempt, in violation of N.J.S.A. 2C:29-9(a). The trial court severed and dismissed the contempt charge.
Defendant was tried before a jury, which found him not guilty of burglary, but guilty of the other charges. At sentencing, the court merged the robbery conviction with the carjacking conviction. The court sentenced defendant to thirty years of incarceration, with a period of parole ineligibility as prescribed by NERA, for the carjacking. The court also sentenced defendant to a concurrent four-year term for the aggravated assault.
Defendant appealed. We affirmed defendant's conviction and sentence for aggravated assault, but reversed his other convictions, finding that the trial court erred by failing to instruct the jury on attempted theft as a lesser-included offense of carjacking and robbery. State v. Macon, No. A-1886-04 (App. Div. June 16, 2006) (slip op. at 4). We remanded the matter for a new trial on the carjacking and robbery charges. Id. at 12-13.
Defendant was thereafter tried before a jury. At the trial, Laura Jafolla (Jafolla) testified that, on November 27, 2001, at 1:00 a.m., she was awakened by the sound of her car starting outside of her home in Moorestown, New Jersey. Jafolla thought her son might have started the car. She went outside in her nightgown. She saw a stranger in the driver's seat.
The individual exited the car and approached Jafolla. She tried to run away but he punched her between the eyes, knocked her to the ground, and began to choke her. Jafolla kicked him and screamed until he ran away. She testified that she saw the assailant's uncovered face. She stated that he was approximately six feet tall, weighed 180 pounds, and had close-cut, short hair. Jafolla also stated that he was wearing dark pants, a dark shirt, and a red plaid flannel shirt.
Officer Richard Naff (Naff) of the Moorestown Police Department (MPD) responded to the scene. He testified that he saw Jafolla standing barefoot, in a nightgown and bleeding from her nose. Naff broadcast Jafolla's description of the perpetrator to the police in the area. Jafolla changed her clothes. Naff took custody of Jafolla's nightgown, and placed it in a brown paper bag to preserve it as evidence. Jafolla pointed out a package of cigarettes and lighter that were on the grass on the side of the house. Naff observed a cigarette inside the car on the floor underneath the steering wheel. An ambulance arrived shortly thereafter.
At around 1:20 a.m., while on routine patrol, Lieutenant Wayne O'Donnell (O'Donnell) spotted defendant, who matched Jafolla's description, near West Third and Union Streets. Defendant said that he was coming from a convenience store, where he had purchased cigarettes. According to O'Donnell, defendant was belligerent, smelled of alcohol and appeared to be intoxicated.
After learning that there was an outstanding warrant from Mt. Laurel Township for defendant's arrest, O'Donnell noticed that fresh blood was smeared on the back of defendant's hands, near his knuckles. O'Donnell asked defendant about these injuries, and he replied that he had fallen crossing the railroad tracks. O'Donnell confirmed that the warrant for defendant's arrest was still active. He took defendant into custody and confiscated a small pocketknife, keys, some loose change and a yellow flashlight.
Jafolla was driven in the ambulance to West Third and Union Streets and she observed defendant from the vehicle. She was asked whether defendant was the person who attacked her. Jafolla stated that she was not sure. Defendant was taken to the Moorestown police station, and later transferred to Mount Laurel because of the outstanding warrant. Defendant was processed there and then transported to the Burlington County jail, where he was confined. Jafolla was taken to a hospital.
Sergeant James Dever (Dever) of the MPD photographed and collected certain evidence at the scene. Dever also interviewed Jafolla at the hospital. Jafolla told him what happened. She said that the attacker had been wearing a red flannel shirt. She also said the man who attacked her was "not unlike" the person she saw from the ambulance. She added that he might have changed his clothes.
At around 4:30 a.m., Dever met with defendant at the Mount Laurel police station. He observed crescent moon-shaped scars or cuts around his fingers and photographed these injuries. Dever also photographed the items confiscated from defendant.
On November 28, 2001, Jafolla and her mother returned to the Moorestown police station. Jafolla told Dever that she was missing a yellow flashlight, a red flashlight and a set of keys. Dever recalled the yellow flashlight and set of keys among the items defendant had when he was taken into custody. Jafolla later identified the flashlight as one of a set that she recently purchased.
Dever thereafter watched a videotape recorded by a surveillance camera at a convenience store in Moorestown. The videotape showed defendant buying cigarettes at around 10:00 p.m. on the night of the incident. He was wearing a red flannel jacket. The jacket could not be located.
DNA and forensic analysis was performed on buccal swabs taken from the inside of defendant's and Jafolla's cheeks, as well as of stains on Jafolla's nightgown and two pairs of pants that defendant wore on the night of the incident. The State police could not find traces of blood on the first pair of defendant's pants, but found five different blood stains on the other pair of pants. Samples were taken from the front and rear of those pants.
Marlene Strauss (Strauss), a scientist in the State Police's deoxyribonucleic (DNA) laboratory, analyzed defendant's and Jafolla's buccal swabs and the samples taken from defendant's pants. She wrote a report that detailed her findings and conclusions. Strauss testified at the first trial; however, at the second trial, the State presented testimony from Strauss's supervisor, Edward Larue (Larue), the Assistant Laboratory Director for the DNA lab.
Larue stated that he was familiar with the analysis performed by the State Police forensic lab in this matter. He said that he was Unit Supervisor at the time, and therefore assigned the cases to the analysts. According to procedure, the analyst then analyzes the sample, determines the DNA profile and sets forth his or her findings in a report.
Larue said that, thereafter, the report and all of the related data is subjected to a review process. Two separate, qualified analysts review the data, draw their own conclusions as to what the data means, and compare their conclusions with those in the report. Larue noted that his initials appeared on the original report, which indicated that he had reviewed the data and the report's conclusions.
Larue further testified that the lab tested two DNA samples that were extracted from defendant's pants. Larue said that the samples were from two contributors, one major and one minor. According to Larue, defendant was the major contributor. He also stated that Jafolla could not be excluded as the minor contributor. He also noted that the minor profile was "consistent with" a profile that Jafolla possessed. He noted that Jafolla's DNA profile only occurs in one out of every 58.4 million Caucasians.
The parties stipulated that two cigarette butts were recovered from the crime scene and transported to the State Police Forensic Laboratory. The parties agreed that the cigarette butts had been analyzed and found to contain identifiable DNA, which matched defendant's DNA to a reasonable degree of scientific certainty.
The parties additionally stipulated that the nightgown Jafolla was wearing on the night of the incident had been taken to the State Police Forensic Laboratory. The nightgown was analyzed and determined to obtain the presence of blood, which contained DNA that matched Jafolla's DNA to a reasonable degree of scientific certainty.
Defendant did not testify on his own behalf. However, defendant called Enrique Hernandez (Hernandez) as a witness. Hernandez stated that he had been employed as a corrections officer at the Burlington County Jail for the previous ten and one-half years.
Hernandez said that on November 27, 2001, he was processing inmates being lodged into the jail. Hernandez stated that, according to his inventory sheet, when defendant entered the jail he was wearing a pair of blue pants, a blue shirt, ...