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State of New Jersey v. Alturik Francis A/K/A Alturic Francis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 7, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALTURIK FRANCIS A/K/A ALTURIC FRANCIS, ALTURIC MARTIN, ALTERICK A. FRANCIS, ALTURIK MARTIN AND ALTRICK FRANCIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-06-0707.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2012

Before Judges Reisner, Simonelli and Hayden.

Defendant was convicted of breaking into Majoly Collins's apartment, robbing her, raping her at knife point, stabbing her to death, smothering to death her two young children, and attempting to stab to death a fourth victim. That victim survived to testify at defendant's trial, where she identified him as the attacker.*fn1 The State also introduced at trial the four separate confessions defendant made after repeatedly being advised of, and waiving, his Miranda*fn2 rights. After merger, defendant was sentenced to three consecutive terms of life in prison, a twenty-year consecutive term, and a concurrent term of twenty years.

Defendant appeals from the conviction and the sentence, raising the following appellate issues:

POINT I: DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO POLICE SHOULD HAVE BEEN GRANTED.

POINT II: A MISTRIAL SHOULD HAVE BEEN GRANTED BECAUSE OF IMPROPER RE-OPENING OF PEREMPTORY CHALLENGES BY THE PROSECUTION.

POINT III: THE ADMISSION OF HEARSAY STATEMENTS VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT IV: THE IDENTIFICATION TESTIMONY PERMITTED AGAINST DEFENDANT WAS IMPROPER AND VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.

POINT V: THE PROSECUTOR EXCEEDED FAIR COMMENT AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VI: DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS VIOLATED BECAUSE AN EMPANELLED JUROR WAS DISMISSED WITHOUT SUFFICIENT CAUSE DURING TRIAL.

POINT VII: THE TRIAL COURT ERRED IN DENYING THE DEFENSE REQUEST FOR A CROSS-RACIAL CHARGE.

POINT VIII: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

In a supplemental pro se brief, he raises these issues:

POINT I: THE TESTIMONY OF THE STATE'S EXPERT WITNESS, DR. CHARLOTTE WORD CONCERNING HER OPINION REVIEW FINDINGS OF FORENSIC SUPERVISOR PAULA CLIFTON'S ACTUAL LAB WORK NOTES AMOUNTED TO INAPPROPRIATE HEARSAY WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONTATION AS WELL AS HIS SIXTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRAIL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947)). THEREFORE THE CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT II: THE PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL;

THE PROSECUTOR I/ DURING CLOSING SUMMATIONS IMPROPERLY INTERJECTED HIS PERSONAL BELIEFS AND IMPROPERLY VOUCHED FOR STATE'S WITNESSES; II/ IMPROPER SPECULATION AND MISSTATEMENTS BY THE PROSECUTOR IN SUMMATIONS ON EVIDENCE THAT WAS NOT BASED ON THE EVIDENCE ADDUCED AT TRIAL; III/ THE CUMULATIVE EFFECT OF PROSECUTOR'S EGREGIOUS ERRORS MANDATES A REVERSAL OF EACH OF THE CONVICTIONS.

Subpoint 1. The Prosecutor During Summations Improperly Interjected His Personal Beliefs And Improperly Vouched For The State's Witness.

Subpoint 2. The Prosecutor Improperly Speculated And Misstated During Summation On Evidence That Was NOT Based On The Evidence In The Record That Was Adduced At Trial.

Subpoint 3. The Cumulative Effect Of The Prosecutor's Errors Mandates A Reversal On Each Of The Convictions.

POINT III: THE LOWER COURT'S VERDICT MUST BE REVERSED SINCE THE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

Having carefully reviewed the record, we find no merit in any of these arguments, and we affirm the conviction and the sentence.

I

This was the most pertinent trial evidence. S.V.,*fn3 who was twenty-one years old at the time, was from the Dominican Republic and spoke only Spanish. Six months before the murders, she had come to the United States to live with an aunt. But on the night of December 6, 2002, she was sleeping over at Collins's apartment and helping Collins care for her children.

Between 6:00 and 6:30 a.m. on December 7, 2002, S.V. called 9-1-1 and reported that a man had broken into Collins's apartment, had stabbed her and had done something to Collins and Collins's children, Catherine (eighteen months old) and Eduardo (four years old). The recording of the 9-1-1 call was played for the jury.

On arriving at Collins's two-bedroom apartment, the police found Collins and her children dead in the bathtub, which had been filled with water. Collins had been stabbed multiple times and there was blood throughout the apartment. Blood stained pillows from the living room couch were on the floor, along with various pieces of clothing.

Around 6:45 a.m., an ambulance transported S.V. to a hospital. Dr. Kaul, the attending trauma surgeon who treated S.V., said that she had "multiple injuries to her neck," which resulted in pulsatile bleeding, or "bleeding that is spurting out very rapidly and requires firm digital pressure to prevent" death. Her carotid artery, the artery that supplies blood to the brain, had been cut, and she had injuries to her throat muscles. She had gone into shock, and her core body temperature was 93 degrees Fahrenheit.

S.V. was immediately taken to the operating room where Dr. Kaul repaired the cut artery and the damage to her throat. After the surgery, she was kept on a respirator because the shock that her body had gone into would have inhibited her ability to breathe on her own. Because she had a tube in her mouth she could not talk. Dr. Kaul opined that if S.V. had not been transported to the hospital, she would not have lived more than ten to fifteen minutes.

Detective Ismael Olivero arrived at the scene around 7:40 a.m. At that time, defendant was sitting in a police car with two children. He lived in the apartment below Collins's apartment with his sister, Kinaya Houston (Kinaya), her husband, Tony Houston (Houston), and their two children.

Everyone who was inside the apartment had been evacuated because smoke was detected in the building. An officer offered defendant and the children a police car to sit in because it was cold outside. Police then transported defendant and Kinaya to headquarters for questioning as potential witnesses.

At headquarters defendant told Olivero that the night before, he had worked until 9:00 p.m. and got home around 10:00 p.m. He watched some television then went to sleep. During the night he did not hear anything from the apartment above. After this brief questioning, Olivero questioned Kinaya, who gave a different account of defendant's whereabouts.

At 12:30 p.m., Olivero conducted a second interview with defendant. He advised defendant of his Miranda rights, and defendant initialed each right to show that he understood them. He waived his rights and agreed to speak with Olivero without an attorney present. Defendant told Olivero that when he got off of work, he went to a girl's house with a guy named Otis. He came home around 10:00 p.m. and went to bed.

Defendant took off his coat, and Olivero saw two blood stains on the right side pocket of his pants. Olivero told defendant that according to Kinaya, defendant did not come home until about 6:00 a.m. that morning. Defendant said that he went home at 10:00 p.m., but he did not have a key to the apartment and Kinaya did not like when he knocked on the door or window at that late hour. So he went back to Linden, where his friends lived.

Then Olivero told defendant that one of the victims was at the hospital, and the doctors expected her to live. Olivero said that she would probably be able to identify the attacker. According to Olivero, the "first thing he [defendant] did . . . was ask me [Olivero] about jail time." Olivero said that he could not speculate about jail time; he had nothing to do with jail time. Defendant "put his head on the table and first thing he said [was that] it wasn't supposed to happen this way." Then defendant gave another account of what he had done the night before.

Defendant told Olivero that when he went back to Linden, he ran into his cousin, Jahad. Jahad said he wanted to rob someone, and defendant said he knew a place to rob. They went to Collins's apartment, defendant knocked on the door, and Collins answered. Defendant asked to use her phone, and when she said no, he pushed open the door. He gathered all the people in one room and asked her for money. She gave him a $20 bill, which he pulled from his pants pocket and gave to Olivero.

Defendant said Collins offered him sex if he would not hurt anyone. He put S.V. in a bedroom closet and had sex with Collins on the living room couch. Then Jahad took Collins into the bathroom and stabbed her and suffocated her two children. Defendant put the children in the bathtub with Collins. Then he took S.V. out of the closet and put her on top of him, but he did not have sex with her. Jahad told him to stab her because there could be no witnesses. Defendant complied. He used a knife that he had taken from Collins's kitchen.

After defendant gave this oral statement to Olivero, he gave a written statement, which was consistent with the oral statement. He added that after he committed the crimes, he went home and Houston, who was getting ready for work, let him in. Defendant said he was not under the influence of any drugs or alcohol when he committed the crimes.

After this written statement, police gave defendant pizza for lunch. While he ate, Olivero telephoned defendant's mother and tried to locate Jahad.

At 4:26 p.m., Olivero took another statement from defendant after he waived his Miranda rights. This time, defendant said that he had committed the crimes alone. He said he had lied about Jahad because he did not want to spend the rest of his life in jail, and he thought he would get a lesser sentence if another person committed the crimes with him.

Defendant repeated that when Collins answered the door, she tried to close it on him, and he forced his way inside. He "put everybody in her room," asked her for money, and after Collins pointed to a purse on a dresser, he took $20 from it and asked if that was all she had. She said "yes." Then she offered him sex if he would leave. He put S.V. in the bedroom closet because he did not want her to see him have sex with Collins. He took Collins to the living room and took off her pajamas. He said "we started having sex on the couch in the living room for a few minutes. Then I stopped." He took her into the bathroom.

She started screaming so I began to stab her. Then the little boy came out and I just put the pillow over his face and smothered him. Then I went to the mother's room and did the same to the little girl.

Then I went to the kids' room. That's when I realized what I was doing and I stabbed her [S.V.] once in the neck. Then I ran into the kitchen, put the knife in the counter, washed my hands, left and thought about what I did. I walked up the street to Grier Avenue and then came back.

Defendant added that before he took Collins into the bathroom he took S.V. out of the closet, put her in one of the beds and covered her head with a blanket. He went back into the living room and took Collins into the bathroom. She was naked at the time. Olivero asked defendant how many times he had stabbed Collins, and defendant answered: "I just closed my eyes and I don't remember how many times I stabbed her." She was pleading with him to not hurt her or the children.

Defendant said that after he stabbed Collins, he stood in the bathroom with her and smoked a cigarette. He burned himself and dropped the cigarette onto a paper towel roll. It caught on fire so he threw it into the tub water. Then Eduardo walked into the bathroom and saw his mother. Defendant took a pillow from the living room couch and smothered Eduardo with it. When Eduardo stopped kicking, defendant put him in the tub with Collins. Defendant went into the bedroom, smothered Catherine, and put her in the tub with Collins and Eduardo. Then he went into the bedroom where S.V. was in the bed under the covers. He "poked" her one time in the neck with a knife, washed his hands in the kitchen, and left.

Defendant said that he went to the apartment to rob Collins. He killed her and the others so that there would be no witnesses. While he walked along the street after the crime, he said he threw his sneakers on a side street off of Grier Avenue because his cousin had told him that police can obtain prints from shoes.

Detective Robert Hilongos began a search of the apartment at 5:08 p.m. on December 7, 2002. Numerous pictures of various parts of the apartment were shown to the jury as Hilongos explained to the jury what police found.

In the kitchen, Hilongos found a bent knife on the kitchen counter and a block of four knives, one of which was bent and had a missing handle. In the living room Hilongos saw a bloodstained comforter and pillow on the floor; a piece of a knife blade on top of the couch; a knife blade without a handle in the

couch; and a sweatshirt near the couch.

In Collins's bedroom he found a blood-stained comforter on the bed; a purse under the comforter; and a cut telephone line. The thermostat had a small blood stain on it and the heat had been turned down. The jamb on the apartment door had a "couple of scratches." There was a "[l]arge bloodstain" in the children's bedroom.

In the bathroom tub Hilongos found an ammonia bottle and a Johnson's baby wash bottle. On the bathroom floor were various pieces of clothing and wash cloths and a pillow. On top of the toilet was a bottle of detergent or soap. Hilongos said there was "a lot" of blood in the bathroom.

On the evening of December 7, 2002, the police obtained an arrest warrant, and defendant was arrested. The following morning, on December 8, 2002, Olivero asked defendant if he was still willing to talk with him. Defendant said that he was. Olivero advised him of his Miranda rights, and defendant waived them.

Olivero asked defendant about the thermostat and cut telephone line in Collins's bedroom. Defendant said that he cut the phone line with the knife that he used to stab Collins and S.V. He rinsed the blood from the knife and put it back in the kitchen where he had found it. After he stabbed Collins, he was hot, so he turned off the heat. Olivero asked defendant if he had spoken to S.V. during the incident. Defendant said that S.V. did not understand him when he talked; Collins, who spoke English, translated what he said.

Defendant told Olivero that while he had sex with Collins he held a knife in his hand. While he stabbed her in the bathroom, she pleaded with him to not hurt her children. She tried to pull herself out of the tub, and in her struggle pulled the shower curtain onto herself. Once he stopped stabbing her, she was alive and moving for about twenty minutes. When she stopped moving he turned on the water and filled the tub. Defendant said he waited to turn on the water until Collins was dead because he "didn't want her to drown."

Later that day, at 1:45 p.m., Olivero interviewed defendant again after he advised defendant of his Miranda rights, and defendant waived them. Olivero asked defendant if he had sex with Collins only on the couch. Defendant answered:

We tried intercourse on the couch with me getting on top of her first but she was dry and I couldn't get into her. I then asked her to get on top of me. She got on top but I still couldn't get inside her, so I told her to get on the floor on her knees in the doggy-style position. I played with her vagina with my hands trying to lubricate her and get her wet. Then I went behind her and put it in through the back while she was on her knees.

Olivero asked: "Did you ever penetrate her anal area?" Defendant answered: "I might have brushed up against it but I never put it in her ass. I put it in her vagina." Olivero asked how long they had sex, and defendant said "a good five minutes."

Olivero asked defendant if he had done anything in the bathroom after he had stabbed Collins. Defendant said he turned on the water, took ammonia from under the bathroom sink and poured it into the water "[t]o try to wash off any fingerprints and pubic hairs." The bottle was only about a quarter full. He poured all of it into the tub.

Olivero asked defendant about his prior statement where he said that he had tried to pry open the back door to the apartment with a knife. Defendant said he had gotten the knife from Clarence Wilson "[t]hat morning before I left him and walked home." Defendant "broke the blade" trying to pry open the door. That was when he decided to knock on the door. He said the knife had a "[d]ark wooden handle, small blade like a steak knife." He left it "somewhere in the apartment." He did not think about breaking into Collins's apartment until he was walking home from work that night.

Olivero said that defendant was "very cooperative throughout." He did not appear tired or intoxicated at any time.

On December 9, 2002, Olivero interviewed S.V. in the hospital. Prior to this interview, no law enforcement officer had spoken to her. S.V. told Olivero that her attacker was black, about five feet eight or nine inches tall with a thin build and lighter skin. She did not say that more than one person broke into the house.

The next day, Officer Maritza Rosales showed S.V. an array of six photos, and S.V. identified defendant as the attacker. In court she again identified defendant but said that his skin looked lighter and he looked stronger than he had looked that night.

S.V. testified that on December 7, 2002, at about 4:00 a.m., she was sleeping in a bed with Catherine when she heard Collins's screaming. S.V. looked up and saw defendant grab Collins by the hair. She had never before seen defendant. He wore gloves and held a knife in one hand. S.V. recognized the knife as one of Collins's knives from the kitchen. S.V. identified the knife in court. She also identified the coat that defendant wore.

Defendant took S.V. and Collins to Collins's bedroom and cut the telephone line. Then he told them to go into the living room. S.V. did not understand English; Collins translated what defendant had said.

In the living room, defendant raped Collins at knife point while S.V. sat on the couch. S.V. said she saw "the whole thing." She heard him tell Collins that Collins was pretty. Defendant put Collins in various positions on the couch and the floor while he raped her. She pleaded with him to not hurt her and the children. Twice during this entire ordeal, Collins told S.V. that the man was "the one that lived downstairs."

Defendant took Collins into the children's bedroom, and told S.V. to go inside the closet. S.V. complied. From the closet, S.V. saw defendant rape Collins on the bed.

Defendant then took Collins into the bathroom. S.V. heard Collins screaming for her mother and for her children. She screamed for some time, then went silent. The entire time, S.V. was thinking that defendant was going to kill all of them.

Defendant pulled S.V. from the closet and put her on the bed in the children's room. He still had the knife. He covered her eyes and stabbed the right side of her neck with the knife. She believed she was going to die.

At some point while she was on the bed, S.V. saw defendant take both children to the bathroom. She believed Eduardo was alive at the time. Before defendant left, he threw water on S.V.'s head, but she pretended to be dead. Around 6:00 a.m., he left the apartment.

After introducing extensive testimony concerning the chain of custody and preliminary testing of all of the blood and other samples taken from the crime scene, the State presented testimony from Charlotte Word, its expert in DNA testing and population frequencies. Word's testimony established the following: Catherine's blood was found on the blue comforter, and Eduardo's blood was found on a green pillow. S.V.'s blood was found on defendant's jeans. Collins's blood was found on defendant's sweatshirt, a pair of socks, and defendant's sneakers. Defendant's semen was found inside Collins's cervix. The blood of all four victims was found throughout the apartment.

Zhongxue Hua, the Medical Examiner, testified that Catherine's "face was very congested, very red looking," but there were no signs of additional trauma on her body. Hua believed that Catherine died from traumatic asphyxia, or smothering. Eduardo's face was also "reddish" and had a "certain degree of congestion." Hua believed he too was smothered to death.

Collins had "very deep cuts . . . in the right side of her chin," one of which exposed the bone. She had five knife wounds to the right side of her neck and shoulder. One wound cut into her jugular vein. This wound alone could have been fatal. She had two knife wounds on the right side of her head, one that "peeled through the scalp, tunnel[ed] under through the right ear" and was at least four inches long. On the left side of her face, Collins had two more knife wounds. She had one knife wound to her subclavian artery, which was near her left shoulder, close to the collarbone. This injury alone could have been fatal. She also had a knife wound to the left side of her jugular vein, which could have been fatal, and one knife wound to the back of her neck. She had one knife wound on the right side of her abdomen that was five and one half inches deep. The knife cut through one of her ribs and through her spleen, as a result "about 600 cc of blood accumulated in her belly." This wound also could have been fatal by itself.

Collins also had knife wounds to her forearm and to both hands. Hua testified that wounds like this typically occur when the victim sees the knife coming at her and instinctively tries to push it away.

Collins also had lacerations around her anus. At trial, the Prosecutor showed Hua pictures of these wounds. Hua said they were "consistent with obvious anal penetration." Hua opined that Collins died from "sharp force injuries" to her head, neck and torso, all of which caused excessive bleeding and pain.

II

On this appeal, defendant first contends that the trial court should have granted his motion to suppress his statements to the police. We disagree.

After being given repeated Miranda warnings, and waiving his Miranda rights each time, defendant made four separate confessions, which the trial judge upheld on a motion to suppress. Based on the transcript of the Miranda hearing, we find no basis to disturb Judge Triarsi's decision, which is supported by sufficient credible evidence. See State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007); State v. Locurto, 157 N.J. 463, 470-74 (1999) (we owe particular deference to a trial judge's credibility determinations). We affirm substantially for the reasons stated in Judge Triarsi's oral opinion placed on the record on January 4, 2006. We add the following comments.

At the Miranda hearing, the State presented testimony from one of the police officers who participated in interviewing defendant. The defense then presented testimony from several additional police officers. That testimony, all of which Judge Triarsi found credible, established the following information.

When the police arrived on the scene of the murders, they asked the potential witnesses who lived in the building to voluntarily come to the police station to be interviewed. These included defendant and his sister, who lived downstairs from the Collins apartment. The police were aware that S.V. said the attacker was a black man who lived downstairs. Defendant and his brother-in-law, Tony Houston, were both black men. But, because Houston had left the scene and had a criminal record, the police initially suspected him. They did not suspect defendant, whom they treated solely as a potential witness.

Defendant voluntarily agreed to go to the police station, as did his sister. While at the station, he was not handcuffed, searched, confined to an interview room, or told that he could not leave. He was placed in a room with an open door and was allowed to go to the bathroom unaccompanied. The record supports Judge Triarsi's finding that, at this point, defendant was not a suspect and was not in custody. During this time, defendant made a brief, non-incriminatory statement, establishing that he was at home in bed at the time of the crime.

About an hour later, when the police interviewed defendant's sister and learned from her that defendant did not come home until the early morning hours after the murders, they began to suspect defendant. They then returned to the interview room where he was sitting and thoroughly advised him of his Miranda rights, which he waived. At no time did defendant appear tired, intoxicated, drugged, or mentally ill.

After waiving his Miranda rights, defendant continued to give non-incriminatory statements, insisting that he spent the evening with friends. However, after the police informed him that one of the victims had survived and was expected to make a complete recovery, defendant's facade of innocence collapsed. He put his face in his hands and then started to confess. He initially told the police that a second person named Jahad was with him during the crime, and that they initially intended to only commit a robbery, but that Jahad then committed the murders. However, after the police pointed out that if Jahad was present in the very small apartment, S.V. would have seen him, defendant admitted that he alone broke into the apartment and committed all of the murders and the assault on S.V. After the initial confession, defendant made three later confessions, each of which was preceded by a Miranda waiver. At no time did he ask for an attorney, ask the police to stop the questioning, or otherwise implicitly or explicitly invoke his right to remain silent. Two days later when an attorney arrived from the Public Defender's Office and asked to interview him, the police moved defendant to another location where there was an available private interview room. As they were moving defendant, he spontaneously started making additional statements, and one of the officers told him that the police could not listen to anything he said because he now had an attorney, and that he needed to stop talking to them.

On this appeal, defendant first argues that he was in custody when he made the first statement to the police. But, that argument is foreclosed by Judge Triarsi's credibility and other factual findings, which are amply supported by the record. Diaz-Bridges, supra, 208 N.J. at 565; Elders, supra, 192 N.J. at 243.

Defendant's additional arguments are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. R. 2:11-3(e)(2). There is absolutely no evidence that the police coerced defendant into making any of his statements. Contrary to defendant's argument, there was nothing improper about the police telling defendant that S.V. had survived the attack. The police told defendant when they had a warrant for his arrest, and he obviously knew he was a suspect at the time of the second interview, prior to making his confession. See State v. A.G.D., 178 N.J. 56, 68 (2003).

Nor is there any basis to conclude that the police kept defendant from speaking to an attorney when one arrived. In fact, they affirmatively told defendant to stop talking to them and facilitated the interview with the attorney. There was no evidence that defendant was impaired at the time he was questioned.*fn4 A blood test showed only trace amounts of marijuana in his system. In short, there is no basis in this record to disturb Judge Triarsi's conclusions that defendant made knowing and voluntary waivers of his Miranda rights and that his statements were admissible.

III

Defendant challenges three additional pre-trial rulings made by Judge Donohue, who took over the case from Judge Triarsi: admitting as excited utterances Collins's statements to S.V. about the identity of the attacker, and S.V's call to 9-1-1; and denying defendant's application to exclude S.V.'s identification of defendant, following a Wade*fn5 hearing.

A.

Collins was bilingual, while S.V. spoke only Spanish. Therefore, during the attack, Collins was speaking to S.V. in Spanish. S.V. testified that on two occasions while the crimes were taking place, Collins told her that the attacker was the man who lived "downstairs." On the one hand, Collins maintained a calm demeanor before the rape occurred. On the other hand, the attacker had a knife, and Collins told S.V. that she was afraid that the attacker would kill her children. That was the context in which Collins made the first statement identifying the attacker. According to S.V., Collins made the second statement about the attacker's identity while he was raping her.

The State also sought to introduce the 9-1-1 call in which S.V. repeated Collins's identification of the assailant. According to S.V.'s testimony at the N.J.R.E. 104 hearing, she made the 9-1-1 call shortly after the attack, while she was bleeding from a neck wound and thought she was going to die.

In a lengthy oral opinion placed on the record on January 22, 2009, Judge Donohue found that both Collins's statements and S.V.'s 9-1-1 call were admissible as excited utterances. He found that the subject matter was "related to the startling event" because "clearly the declarant's knowledge of the attacker's residence is related to the startling event that she is undergoing." He also found that Collins's statements were made contemporaneously with the startling event, and in fact one statement was "made while she was being raped" and the other was made while she was being terrorized. He found that even if Collins was speaking in a calm tone of voice, she was undergoing an ordeal of "being forced at knifepoint, of being dragged by the hair, being frightened, of begging for her children's life, of being raped. . . . [T]here was no time for fabrication here." He found her statements to be inherently reliable.

The judge also found that S.V.'s call to 9-1-1, reporting the attack and reporting Collins's otherwise admissible identification of the attacker, was also an excited utterance. He found the call was made shortly after the attack and while S.V. was "bleeding profusely from the neck." He found that S.V. was "seeking help" and was "still under the influence of this startling event that occurred to her." Therefore, her statement was admissible.

Addressing the Confrontation Clause issue, Judge Donohue held that Collins's statements were not "testimonial hearsay" within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because they were not made to the police recording "information for future trial" but rather they were part of a dialogue between "two witnesses." Relying on Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006), Judge Donohue also held that S.V.'s call to 9-1-1 was not testimonial hearsay and therefore could be admitted consistent with Crawford.

We review the judge's evidentiary ruling for abuse of discretion, and we find none. See State v. Buda, 195 N.J. 278, 295 (2008). We conclude that Judge Donohue's rulings on these issues were entirely correct. Collins's statements to S.V., made while Collins was being terrorized and then being raped, were clearly excited utterances. See N.J.R.E. 803(c)(2) (An excited utterance is a statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate."); Buda, supra, 195 N.J. at 295-96; State v. Long, 173 N.J. 138, 159-60 (2002). Likewise, S.V.'s statements during the 9-1-1 call, made while she was pressing a cloth over her neck to keep from bleeding to death, were excited utterances. Because Collins's identification of the assailant was admissible under N.J.R.E. 803(c)(2), it was also admissible as an included part of S.V.'s admissible statement, under N.J.R.E. 805 (governing hearsay within hearsay).

Finally, for the reasons stated in Judge Donohue's opinion, none of these statements constituted "testimonial hearsay" in violation of the Confrontation Clause. See Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273-74, 165 L. Ed. 2d at 237; State in the Interest of J.A., 195 N.J. 324, 345 (2008). Collins's statements were made to another victim and not to the police. There was clearly an ongoing emergency when S.V. was calling 9-1-1, and she was available for cross-examination during the trial. Defendant's arguments on these points are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

B.

We next address the Wade hearing.*fn6 According to S.V., on December 10, three days after the attack, the police showed her a photo array, from which she identified the assailant. At the time, she did not know whether the attacker had been arrested yet. During the Wade hearing, she was able to specifically describe what the attacker looked like at the time of the crimes. She was also able to identify defendant in court during the hearing, although she testified that his hair was no longer in braids, his skin looked lighter, and he had gained weight.

Officer Maritza A. Rosales, who conducted the photo array, testified that she had no other involvement in the police investigation, was not familiar with defendant, did not know which photograph in the array was his, and made no effort to influence S.V.'s choice of a photograph. Rosales used the then newly-implemented procedure for photo arrays, in which each photo was viewed one at a time by opening a door in a wooden box. Before showing S.V. the array, Rosales, who spoke Spanish, read her a standard statement cautioning her that the suspect's photo might not be included in the array. Rosales also confirmed that she did not tell S.V. that a suspect had been arrested.

According to Rosales, when S.V. reached photo number three in the array she told Rosales "ese es el," meaning "that's him." She explained to Rosales that the assailant "has a thin face, thick lips," and she was certain that was a photo of the perpetrator.

In an oral opinion placed on the record on January 22, 2009, Judge Donohue found that S.V. and Rosales were both credible witnesses. He found that the police followed the Attorney General's guidelines on identification, by having an officer present the array who had no underlying knowledge about the identity of the suspect. He found that no one told S.V. that a photo of the suspect would be in the array. He believed Rosales' testimony that S.V. identified the suspect as soon as she saw photo number three. The judge concluded that there "has been no [impermissible] suggestibility" and no reason to exclude the identification testimony.

Having reviewed the record, we find that Judge Donohue's factual findings are supported by sufficient credible evidence, and we find no reason to second-guess his credibility determinations. See Locurto, supra, 157 N.J. at 472; State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). In light of those factual findings, the judge's legal conclusions are clearly correct. Defendant's arguments on this point, which presume that the police used impermissibly suggestive identification procedures, are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(2).

IV

Defendant also argues that the jury selection process was unfair, because of an event that occurred on January 29, 2009, the third day of jury selection. After the defense indicated that the jury was satisfactory, the prosecutor was then permitted to exercise a peremptory challenge after previously "passing." The judge rejected defense counsel's objection to this procedure, noting that he always checked back with each side after two "passes" to be sure neither side still wanted to use one of its remaining peremptory challenges after the other side had indicated that the jury was satisfactory. He also noted that he had put counsel on notice of this procedure "from the outset."

Shortly after the prosecutor exercised his challenge, two of the already-seated jurors came up with reasons why they needed to be excused. The judge excused them, thus re-starting the process of seating and challenging jurors. After a short break, defense counsel moved to dismiss the jury panel and start jury selection over again, based on their prior argument about the allegedly unfair selection procedure. The prosecutor argued that the point was moot, because even if he had not used an additional peremptory challenge, the process would have had to be re-started in any case due to the dismissal of the two seated jurors. The judge denied the defense motion, noting, "I agree with the prosecutor's reasoning . . . that there's no harm, no foul."

On this appeal, the defense once again argues that the jury selection process was improper. We agree that the point was rendered moot for the reasons stated by the trial judge. We also conclude that the argument is without merit. Consistent with Rule 1:8-3(e)(3) ("passing . . . shall not constitute a waiver of the right thereafter to exercise the same against any juror, unless all parties pass successive challenges"), the judge could have denied the State the opportunity to exercise a challenge. However, "[t]he procedure adopted by the trial court in this case, . . . did not impermissibly curtail appellant's full exercise of his right to challenge jurors peremptorily." State v. Brunson, 101 N.J. 132, 145 (1985).

V

Both in his attorney's brief and in his pro se brief, defendant contends that the prosecutor committed misconduct in asking questions during the trial and in his summation. Based on our review of the entire trial transcript, these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We likewise find no merit in defendant's argument concerning the dismissal of a juror during the trial, on February 10, 2009. The juror had a death in the family and needed to attend the funeral that day. The judge excused the juror, instead of adjourning the trial for the day, due to the limited schedule of the State's DNA expert who was scheduled to testify on February 10 and would not be available again until February 25 or 26. If the judge had not excused the juror, it would have caused an extended delay in the trial. We find no abuse of the judge's discretion in excusing the juror. See State v. Mance, 300 N.J. Super. 37, 55 (App. Div. 1997).

VI

Given the state of the law at the time the judge made the ruling, there was no error in denying the defense request for a cross-racial identification charge. See State v. Cromedy, 158 N.J. 112, 132-33 (1999). Moreover, on this record, there is virtually no chance that S.V. mis-identified defendant. S.V. had two hours to observe the assailant at close range. Collins identified him to S.V. as the man who lived downstairs, and the only other black man living downstairs had an alibi. Defendant's semen was found in Collins's cervix, his blood was found on Collins and S.V., and defendant confessed to the crimes.

We likewise find no merit in defendant's pro se argument, raised for the first time on appeal, that Charlotte Word, the State's expert in "DNA testing and population frequencies," should not have been permitted to testify. Word was a laboratory director at Cellmark when the DNA tests at issue here were performed. She was familiar with the proper analytical procedures, but did not do the laboratory work herself at Cellmark.*fn7 Instead, she reviewed the analysts' work, checked their data and documentation and "co-signed the reports stating the results and conclusions of the work that was done." Word described in great detail the theory and practice of DNA testing, and the extensive controls Cellmark used to insure that the tests performed in its lab would yield correct results. She then explained her role as a "technical reviewer" in the process:

In laboratories doing DNA testing, there is an analyst who does the actual hands-on physical work on the items. That information, the results, lab notes of what was done gets documented in a laboratory case filed. There is a mandatory requirement for all DNA testing reports and their appropriate case files to be reviewed by an individual called a technical reviewer prior to that report being put out.

As a technical reviewer, Word was responsible for confirming that the entire testing process had been performed correctly and "that the right results were obtained for each control." However, most significantly, she was also responsible "as an independent interpreter of the results to see that a second person agrees with the results and conclusions derived by the analyst and reported by the analyst." In other words, she was not merely reporting an analysis reached by someone else; she was also making her own independent evaluation using, as underlying data, the work performed by the lab analyst.

Word explained in detail the steps Cellmark used in analyzing the samples in this case. Word also explained that Paula Clifton, the analyst who had performed the actual testing work, was unavailable to testify at the trial, because she was working "for the federal government in Iraq." According to Word, she personally performed an independent technical review of "all the DNA profiles to see that I agree with . . . the data as it is reported in the report and then I check the conclusions as well to see that I agree with those conclusions."

There was no defense objection to Word testifying instead of Clifton. In fact, the defense sought to gain a tactical advantage by cross-examining Word about some minor differences between the conclusions she reached and those that Clifton reached, concerning a pair of panties and a doily found in the bathtub. Further, as part of its argument that the State handled the forensic evidence sloppily, the defense made strategic use of Word's status, arguing in summation that she "was secondhand" because she did not do the DNA testing herself.

There is no suggestion in this record that the defense would have been helped if Clifton had been recalled from Iraq to testify.

In his pro se brief, defendant argues that his Sixth Amendment confrontation rights were violated because Word testified instead of Clifton. However, in a recent decision, Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), the Supreme Court of the United States confirmed that the Confrontation Clause is not violated where a DNA expert testifies to her own independent conclusions, based on information from a DNA testing laboratory. In other words, the Court's decision confirmed the continuing viability of Rule 703 of the Federal Rules of Evidence and N.J.R.E. 703, both of which permit an expert witness to testify to the expert's own independent conclusions, even if the expert relied on inadmissible hearsay documents in reaching those conclusions. Consequently, we find no error, plain or otherwise, in the admission of Word's testimony.

VII

Finally, we find no merit in defendant's argument that the sentence of three consecutive life terms is excessive. We review the judge's sentencing decision for abuse of discretion, and we find none. State v. Miller, 205 N.J. 109, 128 (2011).

Defendant's sentencing arguments are without merit and warrant no discussion beyond the following comments. R. 2:11-3(e)(2).

"Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." State v. Carey, 168 N.J. 413, 428 (2001). Defendant raped and terrorized Collins before stabbing her to death. He murdered her two young children. He stabbed S.V. and left her for dead. To call his crimes "heinous" is an understatement. The sentence, which Judge Donohue cogently explained in his opinion, was entirely consistent with the principles expressed in State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We find no abuse of discretion or other error in this sentence, which appropriately ensures that defendant will spend the rest of his life in prison. See State v. Bieniek, 200 N.J. 601, 609 (2010); State v. Roth, 95 N.J. 334, 363-66 (1984).

Affirmed.


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