September 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY D. STEVENSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1154.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Yannotti and Espinosa.
Defendant Gary D. Stevenson was tried before a jury and found guilty of burglary, contrary to N.J.S.A. 2C:18-2(a)(1). Defendant appeals from the judgment of conviction dated January 29, 2010. We affirm defendant's conviction and, with the exception of the ordered restitution, the sentence imposed.
In January 2008, Charmaine Roth (Roth) was residing in a single-family residence in the Township of Westampton, New Jersey. She went away on vacation but returned to her home at 1:30 a.m. on January 12, 2008. She discovered that the double-keyed, dead bolt lock had been removed and was lying on the ground beside the front door. She also noticed that someone tried to enter through the rear door and a window beside that door had been broken.
Roth went inside and saw that several items had been taken, specifically a silver fox stole, a wedding ring, an answering machine and a nursing bag. Roth valued these items at about $2,000. Roth reported the matter to the police and, after the police arrived, they removed a curtain from the window because there was blood on it. Roth testified that she did not give anyone permission to enter the house.
Patrolman Thomas Polite (Polite) of the Westhampton Police Department (WPD) testified that he was called to Roth's home at about 2:00 a.m. on January 12, 2008. Polite spoke with Roth. He observed pieces of the double-keyed, dead bolt lock on the ground outside the front door of the residence.
Polite testified that it appeared as if the intruder tried to gain entry through the back door but was unsuccessful. The intruder had broken a window at the left of the rear door to gain entrance into the house. Polite observed curtains in the window and broken glass in front of and near the window. Polite secured the scene.
Detective Glenn A. Parent (Parent) of the WPD arrived at around 2:30 a.m. and met with Roth and Polite. He checked the exterior of the property. He lifted several fingerprints inside the house. They were sent to the State Police Laboratory but, according to Parent, they were found to be "non-sufficient" for the purpose of analysis.
Parent testified that he observed blood on the curtains on the broken window in the rear of the house. Parent secured the curtains and removed them to the police station, where they were held for a "day or so" and then sent to the State Police lab so that the blood could be "checked" for deoxyribonucleic acid (DNA). Parent also retrieved a hair that was found in the sink. The hair was also sent to the State Police's DNA Laboratory but Parent said he was told that it could not be tested.
Forensic Scientist Laura Tramontin (Tramontin) of the State Police DNA lab testified that she observed what appeared to be smears of blood on a curtain provided by the WPD. Tramontin extracted two samples from the stains, tested them and determined that they were positive for blood.
The parties stipulated that Harry W. Corey, a DNA database administrator, searched the Combined DNA Index System (CODIS) database and determined that there was a match between the DNA found in the samples extracted from Roth's curtain and defendant's DNA profile. The parties also stipulated that the WPD had been informed of the DNA database match for purposes of its investigation.
On January 6, 2009, Detective Linda M. Chieffalo (Chieffalo) of the WPD applied to the Superior Court for a search warrant in order to obtain a swab of defendant's saliva sufficient for a comparison with specimens recovered from the curtain in Roth's home. The court granted the application and Chieffalo obtained a buccal swab, which was forwarded to the State Police DNA lab for analysis.
Forsensic Scientist Edward LaRue (LaRue), assistant laboratory director of the State Police's DNA lab, testified that, within a reasonable degree of medical certainty, defendant was the source of the stain found in Roth's curtain due to the rarity of his DNA profile. LaRue explained that in the population of the United States, a match could occur in one in every 451 quintillion African Americans, one in every 32.1 sextillion Caucasians, and one in every 1.8 septillion Hispanics. Roth testified that she did not know defendant.
Defendant did not testify at trial. However, his parents Carmen and Horace Stevenson testified on his behalf. The Stevensons said that, at the time of the burglary, defendant had been residing with them from time to time. Carmen Stevenson stated there were periods of time when defendant was not at their home. She indicated that sometimes defendant would stay with friends. Horace Stevenson stated that in January and February 2008, defendant was away from the Stevenson home for as long as two weeks because he was living at the time in a shelter in Trenton.
The jury found defendant guilty. Thereafter, the trial court denied defendant's motion for a new trial, granted the State's motion for imposition of an extended term as a persistent offender and sentenced defendant to ten years of incarceration, with a five-year period of parole ineligibility. The trial court also ordered defendant to pay restitution in the amount of $2,229 to the victim. This appeal followed.
Defendant raises the following contentions for our consideration:
SINCE THE TRIAL COURT FAILED TO PROPERLY ANSWER THE JURY'S QUESTION IN THE NEGATIVE OF WHETHER "THE ACT OF BREAKING AND ENTERING [IS] CONSIDERED BURGLARY BY ITSELF," DEFENDANT'S BURGLARY CONVICTION SHOULD BE REVERSED.
SINCE THE SEARCH WARRANT TO OBTAIN A BUCCAL SWAB FROM DEFENDANT WAS NOT SUPPORTED BY THE MERE MENTION THAT THE DNA FOUND AT THE SCENE MATCHED DEFENDANT'S DNA ON THE CODIS DATABASE, THE DNA FOUND ON THE BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED AND A NEW TRIAL ORDERED.
THE IMPROPER ADMISSION OF THE EXPERT'S CONCLUSION ON THE ULTIMATE ISSUE -- THAT THE "DEFENDANT IS THE SOURCE OF THOSE STAINS AT THE CRIME SCENE" -- REQUIRES A NEW TRIAL.
THE IMPOSITION OF A MAXIMUM EXTENDED TERM SENTENCE OF [TEN] YEARS OF IMPRISONMENT, SUBJECT TO A FIVE-YEAR PAROLE BAR, FOR THE SOLE THIRD DEGREE BURGLARY CHARGE WAS EXCESSIVE AND THE IMPOSITION OF $2,229 IN RESTITUTION WAS IMPROPER.
We turn first to defendant's contention that the trial court erred in its response to the jury's question of whether the "act of breaking and entering" is considered to be "burglary by itself." The court told the jury:
. . . I cannot answer the question in the manner in which you've asked me without reference to the charge. The charge is contained in a body of law that I [should not] deviate from. And [your] question [cannot] be answered as a simple yes or no answer.
For example, one or more of you may have a different opinion as to what breaking and entering is. Breaking and entering was a crime in New Jersey under a prior set of criminal statutes. Burglary is as I've defined it for you. If breaking and entering includes the two elements that [I have] just . . . laid out for you and the State has proven them beyond a reasonable doubt, then you have the answer to your question.
If what you mean as a collective deliberative body is something other than those two elements, then the answer to the question is . . . it's not.
Defendant maintains that the court should have answered the jury's question in the negative. He argues that the court's failure to provide that response denied him a fair trial. We disagree.
Here, defendant was charged with burglary, contrary to N.J.S.A. 2C:18-2(a)(1). The statute provides that, "A person is guilty of burglary if, with purpose to commit an offense therein or thereon he: (1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter[.]" The court instructed the jury that the State had the burden of proving all of the elements of that offense beyond a reasonable doubt.
In responding to the jury's question, the court made clear that if the jury was asking whether burglary was something other than the elements he had defined in the instructions, the answer to the jury's question was "No." The jury did not indicate that it was confused by the court's response, nor did it request that the court repeat in full its instructions on burglary. Moreover, defendant's attorney did not ask the court to provide the jury with any other response to the question.
We are satisfied that the court's response to the jury's question was not erroneous. We therefore reject defendant's contention that the court's handling of the jury's inquiry deprived him of a fair trial.
We next consider defendant's argument that the trial court erred by denying his motion to suppress the DNA found on the buccal swab that the WPD obtained from him when it executed the search warrant. Defendant contends that the affidavit for the search warrant did not contain sufficient facts to support the court's finding of probable cause. Again, we disagree.
A blood test or cheek swab for the purposes of obtaining a DNA sample is a "search" for purposes of the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. State v. O'Hagen, 189 N.J. 140, 149 (2007) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13, 103 L. Ed. 2d 639, 659-60 (1989)). Generally, a warrant issued based on a judicial determination of probable cause is required for such a "search" unless it falls within one of the recognized exceptions to the warrant requirement. Id. at 149-50.
Here, the court granted the State's application for the issuance of a search warrant to obtain defendant's DNA sample. A search warrant executed pursuant to a warrant is presumptively valid and a defendant has the burden of establishing "'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)).
Probable cause "'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)). "'Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.'" Ibid. (quoting O'Neal, supra, 190 N.J. at 612).*fn1
In the affidavit submitted to the court in support of the State's application for a search warrant, Chieffalo recounted the facts developed in WPD's investigation of the burglary, noting that blood stains had been found on curtains in Roth's home. Chieffalo stated that the curtains had been removed and sent to the State Police for analysis. Chieffalo also stated that the State Police had informed the WPD that DNA samples recovered from Roth's home matched defendant's DNA profile in the CODIS DNA database. She added that Roth had advised Sgt. Marino that she did not know defendant and there was no reason for him to be inside of her residence.
In denying defendant's motion to suppress, the trial court found that the CODIS match established probable cause to believe that defendant had been involved in the burglary of Roth's home. The match of the DNA found in the blood stains in Roth's residence and defendant's DNA profile in the CODIS database indicated that there was more than a mere suspicion that defendant had committed the offense. The court also pointed out that Roth had advised the police that she did not know defendant, had not given him access to her home, and there was no "innocent explanation" for the presence of the blood from which the DNA samples had been extracted. The record fully supports the court's findings.
Defendant contends that the affidavit was deficient because it merely referenced the State Police's finding that there was a match between defendant's DNA profile in the CODIS database and the DNA found at the scene of the burglary. Defendant argues that the affidavit should have included statements concerning the individual who conducted the DNA comparison, the "quality and history" of the reliability of the DNA database, the tests used for the DNA analysis, and how and when defendant's DNA profile was entered into the database.
We are convinced, however, that such specificity was not required. We are satisfied that the facts set forth in the affidavit were sufficient to establish probable cause for the issuance of the warrant. Accordingly, we reject defendant's assertion that the court erred by denying his motion to suppress.
Defendant also argues that the trial court erred by permitting LaRue to testify that defendant was the source of the DNA found at the crime scene. We do not agree.
Here, defense counsel argued that he had no objection to LaRue testifying as to the frequency of the occurrence of a particular DNA profile in the general population or in the various populations mentioned in the report, but that LaRue should not be permitted to state that defendant was actually the source of the DNA sample found on the curtain in Roth's home. The trial court rejected this argument, concluding that LaRue could testify that defendant was the source of the DNA found on Roth's curtain if that opinion was supported by statistical evidence. In our view, the court's ruling was not an abuse of discretion.
N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the [jury] to understand the evidence or to determine a fact in issue," the court may admit expert testimony "in the form of an opinion or otherwise." An expert may not, however, express a direct opinion that a defendant is guilty of the crime charged. State v. Odom, 116 N.J. 65, 77 (1989).
Here, LaRue never expressed an opinion on whether defendant was guilty of the burglary of Roth's home. Rather, LaRue detailed the methodology used to analyze the DNA samples. He stated that, based on the rarity of defendant's DNA profile, it was his opinion, within a reasonable degree of medical certainty, that defendant was the source of the DNA found on Roth's curtain.
Moreover, the trial court instructed the jury that it was not bound by an expert's opinions. The court stated that the jury: should consider each opinion and give it the weight to which you deem it is entitled, whether that be great or slight, or you may reject it. In examining each opinion, you may consider the reasons given for it, if any, and you may also consider the qualifications and the credibility of the experts.
It's always within the special function of . . . the jury to determine whether the facts on which the answer or testimony of the expert is based actually exist. The value or weight of the opinion of the expert is dependent upon and is no stronger than the facts on which it is based. In other words, the probative value of the opinion will depend upon whether from all of the evidence in the case you find that those facts are true. You may, in fact, determine from the evidence in the case that the facts that form the basis of the opinion are true, are not true, or are true in part only, and in light of such finding you should decide what effect such determination has upon the weight to be given to the opinion of the expert. Your acceptance or rejection of the expert opinion will depend, therefore, to some extent on your findings as to the truth of the facts relied upon. The ultimate determination as to whether or not the State has proven the defendant's guilt beyond a reasonable doubt shall only be made by you.
We are satisfied that the court did not abuse its discretion in permitting LaRue to offer an opinion as to the source of the DNA found on Roth's curtain. LaRue's opinion was adequately supported by expert analysis. Moreover, LaRue did not specifically address the ultimate question of whether defendant committed the burglary.
Defendant argues that his sentence is excessive. He further argues that the trial court erred by ordering him to pay restitution without affording him a hearing on his ability to pay.
In this case, the court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The court then found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) ("extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court also found mitigating factor six, N.J.S.A. 2C;44-1(b)(6) (defendant has or will compensate the victim for the damage or injury sustained). The court determined that the aggravating factors outweighed the mitigating factors and sentenced defendant to ten years of incarceration with a five-year period of parole ineligibility.
We are satisfied that the record fully supports the court's findings and that the sentence imposed is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
The court additionally ordered defendant to pay Roth $2,229 in restitution. Defendant argues that the court erred by failing to make factual findings as to the amount of the victim's loss and defendant's ability to pay. We agree that such findings should have been made. If the present record is not sufficient to make these findings, the trial court should conduct a hearing on these issues. N.J.S.A. 2C:43-3(e); N.J.S.A. 2C:44-2(b) and (c).
Accordingly, we affirm defendant's conviction and, except for the ordered restitution, the sentence imposed. We vacate the provision of the judgment requiring defendant to pay restitution and remand the matter to the trial court to reconsider the matter and to make appropriate findings of fact. We do not retain jurisdiction.