delivered the opinion of the Court.
In this criminal appeal, we assess whether joinder principles were applied properly in the context of defendant’s trials on offenses that arose out of one burglary and three other burglary and sexual assault episodes, which occurred over a span of three years. If joinder of defendant’s offenses was improper, we also are asked to consider whether all of the convictions must be reversed.
The State contended that the factual underpinnings to the offenses with which defendant was charged—burglaries of women’s homes and related sexual assaults—bore indicia of “signature crimes” and sought to try defendant in a single trial. Defendant wanted the offenses tried separately and filed a motion for severance, which was granted in part. One burglary and sexual assault incident was severed from two others. The State was permitted to try the fourth incident, which involved burglary but not sexual assault, in either of the two trials. The State opted to try defendant in the first proceeding for two burglary and sexual assault episodes and for the separate burglary incident during which defendant was apprehended. A second trial before a new jury addressed the offenses involving the severed burglary and sexual assault episode, followed by a trial on a certain persons offense.
On appeal, the Appellate Division reversed defendant’s convictions from the first trial. The panel concluded that the threshold for a signature crime was not satisfied on the facts present for the burglary and sexual assault incidents. It further concluded that the trial court abused its discretion in not granting defendant relief from prejudicial joinder in respect of those charges and also the charges related to the burglary. The Appellate Division also reversed defendant’s convictions for the burglary and sexual assault incident that was separately tried based on the wrongful admission of extensive other-crimes evidence related to the burglary in which defendant was apprehended. The State’s petition brought this matter before the Court.
As did the appellate panel, we find error in the joinder of offenses in defendant’s first trial. We also agree with the panel that admission of the other-crimes evidence in the second trial was error. However, not all of the convictions require reversal and retrial. The quality and quantum of the evidence against defendant in two of the criminal episodes was of sufficient weight to lead us to conclude that the error, fairly viewed, did not produce an unjust result. Accordingly, we affirm in part and reverse in part the judgment of the Appellate Division.
I.
At the outset, before extensively detailing the criminal episodes at the center of this dispute, we review the basic principles governing joinder of offenses.
Rule 3:7-6 provides that
[t]wo 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 moreacts 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.
Although joinder is favored, economy and efficiency interests do not override a defendant’s right to a fair trial. See State v. Chenique-Puey, 145 N.J. 334, 341,
The relief afforded by Ride 3:15-2(b) addresses the inherent “ ‘danger[,] when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused’s guilt, the sum of it will convince them as to all.’ ” State v. Pitts, 116 N.J. 580, 601,
With those guiding principles in mind, we turn to the offenses that the State sought to have tried together and the decisions of the trial court and Appellate Division in this matter.
II.
A.
Defendant originally was charged with offenses for acts committed against five different victims on five different dates between July 2002 and May 2005. Ultimately, he was tried in two trials for offenses committed against four victims.
Sexual Assault of J.L.
On July 13, 2002, twenty-oné-year-old J.L., preparing to leave for a vacation, returned to her home in New Brunswick at approximately 2:30 p.m. Intending to be brief, she left the door unlocked. As she was gathering her clothing, she heard the front screen door swing shut and turned to
The man, wearing reflective sunglasses and a baseball cap, told J.L., “take your clothes off or I’m going to shoot you.” J.L. saw that the man was carrying “a very large gun,” which she could see was “shiny silver.” She screamed and turned around. 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, face-first, onto the bed and locked the bedroom door.
Crying, J.L. offered the man $600 in cash, but he did not respond. The man returned to the bed and removed J.L.’s shoes, pants, and underwear; he also pulled down his own pants. When J.L. lifted her head to look up at him, he hit her in the jaw with the gun and his fist and warned her not to look at him again. The man attempted to penetrate her vagina with his penis, but he was unable to do so. He turned J.L. onto her back and penetrated her. J.L. thought she had heard the snap of the man putting on a condom, but she was not certain.
When the sexual act concluded, the man asked J.L. where she kept the money she offered. Still in fear he would shoot her if she looked at him, J.L. responded, while lying on the bed, that the money was in her car. The man went to the window and looked out. He told her to wait five minutes and that if she came outside sooner, he would shoot her. J.L. waited five minutes and then, fearing he would return, drove to St. Peter’s Hospital. The police then took J.L. from St. Peter’s to a rape crisis center. At the rape crisis center, J.L. submitted to a gynecological exam. Her clothes were bagged, and oral and vaginal swabs were taken. The investigation revealed that no money was taken from J.L.’s car.
J.L. told the police that she did not look at the man after he told her not to or she would be shot. She did, however, vaguely describe a black male of medium build, about six feet tall, wearing a baseball hat, reflective glasses, and a white t-shirt with a design on it. She also described the gun the man carried as very large and “really, really shiny and silver.”
Subsequent to defendant’s arrest, on May 27, 2005, J.L. viewed a lineup, which included defendant. She was unable to make an identification.
At trial, a State Police forensic scientist testified about the results of the DNA testing. The expert compared the swabs taken from J.L. against her DNA profile and defendant’s DNA profile, concluding that the cervical swab taken from J.L. matched defendant’s DNA profile. She also testified that the DNA profile obtained from the swab occurs in “approximately one in 4.50 trillion of the African-American population, one in 24.7 trillion of the Caucasian population and one in 29.3 trillion of the Hispanic population.” On cross-examination, the expert admitted that she had knowledge of prior instances of cross-contamination in the lab; however, she was not aware of any contamination issues since she began her employment there. She further testified that the sample contained no indication of contamination, which she would have been able to recognize if it occurred.
Sexual Assault of K.G.
On June 9, 2003, twenty-five-year-old K.G. was home alone in the apartment she shared with her sister in New Brunswick. At 3:30 a.m., she was asleep in her bed. The apartment doors were locked, but the kitchen window “was left open about an
The man told K.G. to keep quiet, and he threatened to cut her throat. K.G. begged the man to leave, but he slapped her across the face and told her to “shut up.” At that point, the man pressed the knife to KG.’s cheek and then “stabbed [the knife] really hard” into the bed next to her. He climbed onto the bed, removed K.G.’s pajama pants, and used the knife to cut off one side of her underwear.
The man was wearing latex gloves, and K.G. asked the man if he was going to use a condom. He replied that he would, and K.G. believed that he used one during the attack. The man asked K.G. if she “had ever been with a black man” and said, “I know you want to be with a black man, [and] things to that effect.” The man kissed her on the mouth and fondled her breasts, and K.G. felt the man penetrate her vagina with his penis.
Afterwards, the man put his pants on, got off the bed, and backed out of the room. As he did so, he told her “to stay still, not to do anything.” K.G. waited a minute or two and called the police. She had been “too terrified to look” at the man during the attack, and she could only describe him as a black male, “on the husky side,” and “big and imposing and threatening.” The man had told her he had been “watching” her, but she had not recognized him.
The police found that the kitchen window was wide open, and a lawn chair had been placed underneath the window on the outside. A large knife was missing from the kitchen, but the police recovered the knife from the backyard. K.G. said the knife looked like the one used by her attacker. The police also found a condom wrapper on K.G.’s bed, which she explained was different than the brand that she used with her boyfriend. The police did not locate any witnesses that saw or heard anything, and they took K.G. to a rape crisis center. A nurse examined K.G., but the examination did not reveal any nuclear DNA evidence. However, a hair was found on K.G.’s pajama pants.
On June 6, 2005, subsequent to defendant’s arrest, K.G. viewed a lineup of six men. Each man read a quote out loud, “shut up or I’ll cut your throat.” K.G. was able to easily dismiss all the men except one: defendant. K.G. noted that his voice was “familiar” and that he had a similar build to her attacker, but she was unable to identify him with certainty.
A State Police forensic expert testified at trial as an expert in the field of forensic hair analysis and explained to the jury the significance of trace analysis and her discovery of the hair on the pajama pants. She testified that the hair found on the pants exhibited characteristics normally associated with the hair of a person of African descent and that she sent the hair out for mitochondrial DNA analysis.
The State’s mitochondrial DNA expert explained that mitochondrial DNA is often only used when nuclear DNA cannot be obtained. The expert explained that, unlike nuclear DNA, mitochondrial DNA is not a unique identifier because it is only inherited from one’s mother. He further explained that a person will have the same mitochondrial DNA type as all of the relatives on the maternal side, and, thus, when doing a mitochondrial analysis, one can only conclude that a person “can’t be excluded as the contributor of that sample.”
The expert then described his analysis of the mitochondrial DNA in this case, explaining that the mitochondrial DNA sequencing from both defendant’s sample and K.G.’s pants was the same and that
Sexual Assault of L.R.
On January 18, 2005, thirty-nine-year-old L.R. was alone in the apartment she shared with her son in Edison. She had just finished dinner at approximately 6:45 p.m. and went into her son’s room to use the phone to pay her bills. When she exited her son’s room, the front door was open, and a man she did not know was standing in her apartment. L.R. screamed, and the man told her not to scream and that he would not hurt her. The man asked if she had any money, and L.R. replied that it was in her bag in another room. The man then told her to take off her clothes. L.R. told him to take her money and go, but he repeated that she should take off her clothes.
L.R. began screaming, and the man again told her to stop and that he was not going to hurt her. The man approached L.R. holding a knife and cut the buttons off her shirt and cut her bra. He then told her to remove her pants. L.R. continued to scream, and the man pushed her onto the bed and took off her pants. He then cut the left side of her underwear with the knife. He licked her breasts and neck, and penetrated her vagina with his penis.
L.R. called the police after the man left, and she was taken to a rape crisis center and examined. At the rape crisis center, L.R. was physically examined, and the nurse took swabs of the left side of L.R.’s neck, her left nipple, her left foot, and her pubic area. She described her attacker as a black male with a dark complexion, between five-ten and six feet tall, with a straight nose and round big eyes. She said he appeared to have a chubby build but that may have been due to the amount of winter clothes he was wearing. L.R. also described him as having some sort of speech defect; when he spoke, it appeared as if “his tongue come [sic] out from his teeth,” making it sound like he said, “I’m not going to hurth you.” During the attack, L.R. was facing the attacker, but the room where she was attacked only had one light with a sixty-watt bulb, and the man was wearing a jacket with a hood over his head, which obscured her view of the side of his face. On February 11, 2005, L.R. viewed a lineup of six men. She identified a man, who was not defendant, saying she was “ninety percent” sure he was her attacker. On May 31, 2005, subsequent to defendant’s arrest, L.R. viewed another lineup of six men. This time, defendant was part of the lineup. As soon as defendant came out to take his spot in the lineup, L.R. covered her mouth, moving away from the door and up against the wall. She began to cry and said, “it’s him, it’s him.” Sergeant Pamela Jeffrey, who administered the lineup, testified to L.R.’s strong emotional reaction.
An expert in forensic science and DNA analysis conducted a DNA analysis on the swabs taken from L.R. DNA evidence was obtained from the saliva that the attacker left on L.R.’s breasts and neck. The expert compared the evidence to a swab of defendant’s DNA and determined, “within a reasonable degree of scientific certainty,” that defendant was the source of the dried secretions taken from L.R.’s breasts and neck. At trial, the expert testified that the DNA profile obtained only “occurs in approximately one in 30.8 quadrillion of the African American population^ o]ne in 419 quadrillion of the Caucasian population, and one in 2.02 quintillion of the Hispanic population.” Although defense counsel asked the expert about cross-contamination in DNA evidence, she testified that she had not heard of any specific incidents at her laboratory in the past three years that she had worked there.
Burglary of S.P.
On May 27, 2005, thirty-one-year-old S.P. was living in an apartment in North Brunswick with her fiancé and three children. That night, she and her fiancé argued, and S.P. left the apartment to go for a walk at 2:40 a.m. She was outside for approximately one minute when a man approached her and said, “hey, mama, can I talk to you?” S.P. turned around, looked at him, and headed back toward her apartment. The man followed her and told her that she did not have to worry because “he was a gentleman.” S.P. told him that her fiancé was home, and she ran into the apartment and locked the door. She told her fiancé that someone had tried to talk to her and then went to her bedroom to lie down.
A few minutes later, S.P.’s flaneé noticed that the door handle was jiggling. Then he saw the blind, screen, and window of the living room window go up, and he saw a man standing outside the window. S.P.’s flaneé yelled at the man, and the man dropped the blind and fled. S.P. called the police while her flaneé chased the man. She gave the police a description of the man who had tried to talk to her. S.P. described him as a black male, about five-eight or five-nine, wearing blue jeans and a white t-shirt with a design on it. The police arrived, and S.P.’s flaneé gave a similar description.
An officer discovered defendant hiding behind a tree in a park a few blocks from S.P.’s apartment. The officer asked the man “to come out from behind the tree, and he complied, smiling.” The officer noticed that defendant was “sweating profusely, his clothes were missed [sic] up and his zipper was down.” Defendant was handcuffed, and a pat down for weapons revealed a serrated-edge folding knife and a wallet, which contained, among other items, a condom.
S.P. and her fiancé both identified the man as the person who had tried to talk to S.P. and enter their apartment. At trial, S.P. testified that she was able to get a good look at the man’s face during her encounter with him outside her apartment. She also made an in-court identification of defendant.
As a result of defendant’s arrest, the police obtained a warrant to search his home. During the search, the police seized a silver gun. An investigator also took oral swabs from defendant to obtain a sample of his DNA.
For acts committed against J.L. in New Brunswick on July 13, 2002, defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2; first-degree aggravated sexual assault, N.J.S.A 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; third-degree aggravated assault, N.J.S.A. 2C:12-lb(2); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree terroristic threats, N.J.S.A. 2C:12-3b.
For acts committed against K.G. in New Brunswick on June 9, 2003, defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A 2C:14-2c; fourth-degree unlawful possession of a knife, N.J.S.A 2C:39-5d; third-degree possession of a knife for an unlawful purpose, N.J.S.A 2C:39-4d; and third-degree terroristic threats, N.J.S.A. 2C:12-3a.
For acts committed against L.R. in Edison on January 18, 2005, defendant was charged with second-degree burglary, N.J.S.A. 20:18-2; first-degree aggravated sexual assault, N.J.S.A 2C:14-2a; second-degree sexual assault, N.J.S.A 2C:14-2c; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a knife for an unlawful purpose, N.J.S.A 2C:39-4d.
And, for acts committed against S.P. in North Brunswick on May 27, 2005, defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a knife for an unlawful purpose, N.J.S.A 2C:39-4d.
B.
The State’s theory concerning these burglaries and sexual assaults was that there were sufficient similarities in the manner in which these offenses were carried out to make them signature crimes. Specifically, defendant was captured outside of the last attempted entry into a woman’s (S.P.’s) home with items similar to those used in some of the earlier crimes, which led to the search of his home and to obtaining DNA evidence used to link defendant to all of the sexual-assault incidents. The State asserted the similarities supported a single trial of these matters.
Defendant, seeking severance, argued that there was insufficient evidence to warrant joinder because the crimes were not signature crimes, part of a common scheme or plan, or probative on the issue of identity. Defendant distinguished each incident, pointing to the differences between the crimes: the times ranged from 2:30 p.m. to 3:30 a.m., two of the assaults involved a knife whereas one involved a gun, the assailant wore different clothing, the victims differed in age, and the crimes took place in three different towns.
In response, the State contended that, viewed as a whole, the crimes were probative on the issue of the perpetrator’s identity because all were home invasions, the perpetrator was described similarly by the victims, and each attack involved the use of a weapon and an attempt to subdue a
The court granted defendant’s motion in part, holding that the indictments involving the burglaries and sexual assaults of K.G. and L.R. could be tried together in a single trial, but that the burglary and sexual assault of J.L. had to be tried separately. The court further held that the burglary of S.P. could be tried with either of the sexual assault trials, and, if proven at the first trial, evidence of that burglary could be admitted as other-crimes evidence in the second trial. Applying the Cofield test to assess whether there would be prejudice from the joinder, the court concluded that the assault of K.G. would have been admissible at the trial of the assault of L.R., and vice versa, if the two eases were tried separately. Accordingly, the court concluded that no prejudice would result from joining them in a single trial.
When assessing whether the evidence of the other crime was relevant to a material issue—the first prong of the Cofield test— the court found that the identity of the attacker was a disputed issue “and the evidence of L.R.’s attack [wa]s highly probative of the identity of” K.G.’s attacker. The court relied on the DNA testing that linked defendant to both crimes, acknowledging that the DNA evidence linking defendant to K.G. was less-conclusive mitochondrial DNA. In addition, the court considered the strong positive identification in L.R.’s case, although conceding the identification by K.G. was weaker. K.G. described defendant’s voice only as “familiar.”
Furthermore, the court found that the attacks of K.G. and L.R. were “so nearly identical as to constitute the defendant’s signature crime or handiwork.” The court pointed to the alleged use of a condom in both cases and opined that condom usage in stranger-to-stranger sexual assault “is fairly unusual or perhaps even unique.” The attacker’s comments regarding the race of his victims and his use of a knife to “distinctively cut the victim[’]s underwear off and expose[] the—body of the victim by either ripping or cutting their tops off in a very unique manner” suggest ed that the crimes were committed by the same person. The court concluded that, when considered in total, the evidence established a “nearly identical method of committing the crime.”
With respect to the remaining Cofield prongs, the court determined that each was satisfied. Although the crimes involving K.G. and L.R. occurred one-and-one-half years apart, they were reasonably close in time and similar in nature, thus satisfying the second Cofield prong. The third prong, which requires that evidence of the other crimes be clear and convincing, was satisfied because the physical evidence and proffered victim testimony led the court to conclude “that these crimes did take place.” Finally, the court found that the fourth prong was satisfied:
The fact that the probative value, of course, is not outweighed by any prejudice, I think is a conclusion that the Court must reach. The identity of KG.’s attacker clearly is a[sic] issue. The strong similarities between the two assaults suggest that the same person committed them. And the Court does not find that there’s anything particularly more heinous or necessarily prejudicial beyond the probative impact, which is great.
Although the court found sufficient similarity to join the trials relating to L.R. and K.G., it ruled that J.L.’s assault had to be tried separately from the other assaults. Given that none of the identifying features, such as the use of a knife or racial comments,
The trial court also concluded that the burglary of S.P. could be joined with either of the trials or admitted as other-crimes evidence. The court stated that those charges could be joined, “[n]ot so much pursuant to the standard 404—rule 404B analysis, but because the crimes that took place against S.P. demonstrate a strong connection to the identity of the defendant.” The court pointed to the fact that defendant’s arrest for the S.P. burglary enabled the police to obtain swabs of his DNA and led the police to search his home, where they discovered the gun that J.L. claimed was “similar to the one” with which she was assaulted. Based on those facts, the court determined that, “with respect to demonstrating to the jury the identity of the defendant and how he came to be linked to these earlier crimes, clearly there is an appropriate connection.” The court also found that “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 ... that the defendant was identified as having committed the crimes.”
In addition, the court noted that the sexual assaults would be admissible in the trial of the burglary of S.P. because “the State ... is required to prove the defendant’s intent to commit a sexual assault during the burglary.” Thus, the assaults of K.G. and L.R., which also involved the use of a knife and condom, would be admissible to prove defendant’s intent when he burglarized S.P.’s home.
C.
The State tried defendant first for the charges related to K.G., L.R., and S.P. in September 2006. The State portrayed the crimes as a series of sexual assaults, suggesting that S.P. was about to become defendant’s next victim.
The defense did not contest that the events occurred but rather maintained that defendant was not the perpetrator. Defense counsel attacked the DNA evidence as contaminated and emphasized to the jury that the State had not met its burden on the issue of identification. The defense cautioned the jury against using other crimes to prove identity in any of the criminal episodes and highlighted dissimilarities between the separate crimes.
The court instructed the jurors on the significance of the evidence actually presented and warned the jurors to consider the proof with respect to each separate charge before convicting:
Now, there are twelve crimes charged in this indictment. These are separate crimes, and in your determination as to whether the State has proven any of these crimes beyond a reasonable doubt, the defendant is entitled to have you consider each crime separately with respect to the evidence that relates to that crime based on the law as I give it to you. You just can’t take the position, well, since I found one way on this crime I am going that way across the board. You have to look at each crime based on the law that I explained to you and the evidence that was presented to prove that particular crime and reach a separate conclusion as to whether the State has proven its case beyond a reasonable doubt as to that crime.
At several points during the jury instructions, the court reiterated the need to consider each crime separately. The jury was instructed that
our law and our rules ordinarily exclude and do not permit evidence that a defendant has committed separate, numerous crimes only if it’s offered to show that a
However, one exception to this rule is that evidence of separate crimes may be used for a specific, narrow purpose, and in this case the evidence has been offered to attempt to demonstrate that the separate sexual assaults in this case, those committed [against K.G. and L.R.] are so similar and so unique that you may, if you chose [sic] to, infer that the same person committed all of them.
You may not draw this conclusion or this inference unless you conclude that the sexual assaults with which the defendant is identified are so nearly identical in method as to earmark the defendant’s personal handiwork.
... [Y]ou can’t find the defendant guilty of one crime simply because you find him guilty of another. You still have to decide the cases individually based on the evidence that relates to that crime.
On September 15, 2006, the jury found defendant guilty on all charges involving K.G., L.R., and S.P.
The charges involving the attack of J.L. were tried in January 2007. During that trial, evidence about the burglary of S.P.’s home was presented. S.P., her fiancé, and the arresting officer testified for the State. Their testimony detailed the entire exchange between S.P. and defendant, including a lengthy deseription of his arrest and that defendant had his pants zipper down when apprehended and a knife and eondom in his pockets.
At the end of the second trial, the judge instructed the jury regarding the use of the other-crimes evidence:
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____Here the evidence of this encounter with [S.P.] and [her fiancéj 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.j he must be guilty of the crimes in this indictment. Okay?
The jury found defendant guilty on all charges,
D.
The Appellate Division consolidated defendant’s appeals from both trials and reversed defendant’s convictions for all charges relating to K.G., L.R., S.P., and J.L. Only defendant’s conviction and ten-year sentence for the certain persons offense were affirmed on appeal.
With respect to the first trial (K.G., L.R., and S.P.), the panel found insufficient evidence to support the finding that the
Additionally, the panel found that, even if those features were unique, their distinctiveness was not “self-evident,” and therefore, an ordinary juror would not necessarily understand that they constituted a signature. Relying on State v. Fortin, 189 N.J. 579,
[a]t 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 ... was such a unique pattern that a jury could find that the crimes were committed by the same person.
The panel also concluded that it was error to join defendant’s burglary of S.P.’s home with the offenses involving the attacks on KG. and L.R. “because they were not based on the same act or transaction, not part of a common scheme or plan, and not of the same or similar character,” as required under Rule 3:7-6. Even if the burglary could have been charged in the same indictment as the assaults, the panel found that the trial court failed to consider the prejudicial nature of the burglary evidence under Rule 3:15-2(b). No Cofield analysis was performed, and defendant’s mere possession of a condom and a knife did not uniquely link the S.P. burglary to the assaults as a signature.
The panel was not persuaded that the burglary was admissible as a basis for the jury to understand how defendant’s DNA was obtained, stating “[ujnder 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.” Further, the panel noted, the reason the State obtained the DNA was not relevant to an issue before the jury. Moreover, the panel observed that there was other available admissible evidence on the issue of identification. Joinder of the offenses thus was prejudicial because it allowed the jury to consider extensive other-crimes evidence when there was adequate, less prejudicial evidence that could have been presented on the same issue. Conversely, the sexual assaults were not admissible to prove defendant’s intent in the burglary of S.P. because the indictment did not specify that defendant intended to commit a sexual assault when committing a burglary of her home.
With respect to J.L.’s separate trial, the panel concluded that the court should not have admitted evidence of the S.P. burglary because it was irrelevant, excessive, and prejudicial. The panel distinguished this ease from others where evidence of a later crime was admissible to prove identity, see State v. Pierro, 355 N.J.Super. 109, 117-18,
Finally, the panel concluded that the errors were not harmless. With regard to J.L., the panel found that J.L.’s testimony identifying the gun was too tenuous to provide a basis for upholding the conviction. The panel stated that, “[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” Therefore, the panel found that “[i]t cannot be said that the prejudice [from the burglary evidence] ... did not influence the jury’s consideration of the DNA evidence.”
The panel noted that the evidence of defendant’s identity in S.P.’s burglary was “very strong,” since he was captured near the scene and identified by both S.P. and her fiancé. For L.R., the panel found that the DNA evidence “strongly supported his guilt.” Indeed, the panel reiterated its assessment that the DNA evidence from the attacks on K.G. and L.R. “provided strong, scientific proof that identified defendant as the perpetrator of both sexual assaults.” Nonetheless, the panel did not find that there was sufficient, independent evidence of guilt because it did not view the evidence as overwhelming as in State v. Gillispie, 208 N.J. 59, 93,
The State petitioned for certification. Defendant opposed the State’s petition and filed a cross-petition on issues raised in a supplemental brief. We granted the State’s petition for certification and denied defendant’s cross-petition. State v. Sterling, 209 N.J. 596,
III.
A.
The State argues that the trials for the assaults on L.R. and K.G. were properly joined as signature crimes. It points to the similarities in the manner these two crimes were committed and contends that the Appellate Division compared the facts of this case too strictly to the facts in State v. Fortin, 162 N.J. 517,
B.
Defendant argues that although the sexual assaults in this case generally were similar, the crimes were not unique enough
IV.
A.
Charges need not be identical to qualify as “similar” for purposes of joinder under Rule 3:7-6. See, e.g., State v. Baker, 49 N.J. 103, 105,
That said, the inquiry only begins with an assessment of whether there is similarity or a connection between charges because one involves evidence probative of another charge. Even if that threshold standard is satisfied, the court remains obligated to assess for prejudice, which may require the granting of relief from joinder. For that, the test employed under N.J.R.E. 404(b) provides the appropriate analytical framework. We therefore turn to the N.J.R.E. 404(b) framework for approaching the joinder question presented in this matter.
B.
N.J.R.E. 404(b) addresses the admission of other-crimes evidence to prove a defendant’s identity. As exemplified in different circumstances, evidence of a later crime may be admitted on the issue of identity when defendant’s connection to the first crime was established by specific evidence discovered during the second crime. In Fierro, supra, joinder of two separate burglaries was deemed an appropriate use of other-crimes evidence for purposes of identity where the defendant was caught near the scene of the second burglary, hiding under a bush, sitting on top of a social security card and credit cards obtained from the home of the first burglary. 355 N.J.Super. at 114,
Other-crimes evidence may also be admitted on the issue of identity when a particular weapon or disguise used in one crime connects a defendant to another offense. See Gillispi,e, supra, 208 N.J. at 88,
The standard for admitting other-crimes evidence to prove identity becomes more stringent when the State attempts to link a particular defendant to a crime on the basis of modus operandi, or a signature way of committing the crime. See Fortin I, supra, 162 N.J. at 530-31,
In State v. Reldan, 185 N.J.Super. 494, 496-98,
On the other hand, in State v. Sempsey, 141 N.J.Super. 317, 324,
The seminal ease on signature crimes is Fortin I. There, we utilized the heightened standards described in Sempsey and Roldan when stressing the high burden that would be required when other-crimes evidence is admitted to prove identity through the use of a signature-crime analysis. 162 N.J. at 530-31,
In order to prove the defendant’s identity for the crime committed in New Jersey, the State sought to introduce expert testimony comparing the murder to a sexual assault committed by the defendant, later in time, against a female state trooper in Maine. Id. at 521-22,
In our Fortin I decision, we adopted a heightened standard for signature-crime evidence and stressed the difficulty involved in such case-by-case determinations, commenting that the facts—the distinctive bite marks and patterns of injuries—might be enough to constitute a signature crime. Id. at 532-33,
C.
The subsequent history to Fortin I is pertinent to the instant matter. Fortin was retried after his conviction was reversed because the State failed to present a reliable database as a predicate for the expert’s testimony. Fortin III, supra, 189 N.J. at 584,
Based on the facts in Fortin, we held that the signature-crime evidence was beyond the general understanding of an average juror and “require[d] expert testimony to explain those features that uniquely tie the two crimes together.” Id. at 584,
To the extent that the Appellate Division in this matter concluded that Fortin III signaled that signature-crime evidence required, in every instance, expert testimony for its admission, the panel mistook our emphasis on an expert in that discussion. Our discussion about the need for expert testimony in Fortin was rooted in the difficulty presented by its facts. Admission of evidence as supportive of a signature crime must remain a case-by-case analysis, assessing what it is about the method of a crime’s commission that might make it a signature crime. Bite mark analysis was beyond a jury’s ken, but that does not mean that every aspect of a signature crime’s analysis is so obtuse that only an expert can be expected to translate its importance and significance to the jury.
With that understanding of our discussion in Fortin III, we turn to the State’s argument that the crimes involving K.G. and L.R. were signature crimes that could and should be tried together; or alternatively, whether the crimes were properly joined because they in combination were relevant to the material issue of identity and were not unduly prejudicial.
V.
A.
We dispense first with the signature-crime argument. Although there were some similarities between the burglaries and sexual assaults involving K.G. and L.R., we agree with the Appellate Division that there is no uniqueness to the manner in which those crimes were committed. The most significant signature elements were the use of a condom, the racial comments, and the manner in which the perpetrator cut the victims’ underwear. Individually, these acts certainly do not rise to the level of signature elements of a crime. Condom use was not established by the State as being unique, or even unusual, in a sexual assault.
B.
Here, the crimes neither satisfy the heightened standard for admission as signature-crime evidence, nor pass the multi-part test applicable when assessing a request for relief from prejudicial joinder.
The test is whether the evidence from one offense would have been admissible N.J.R.E. 404(b) evidence in the trial of the other offense, because “[i]f the evidence would be admissible at both trials, then ... a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.” Chenique-Puey, supra, 145 N.J. at 341,
In Oliver, the defendant was convicted of sexually assaulting two women, each of whom was his longtime friend. Id. at 145,
At trial, the defendant filed a motion to sever the charges, but the trial court denied the motion, finding that the similarities of the crimes established the “defendant’s intent to commit crimes against those women, and/or established his common scheme or plan to lure female friends to his room under false pretenses.” Id. at 150,
However, our Court rejected that reasoning, noting that the acts were not part of a “larger continuing plan of which the crime on trial is a part. They are simply discrete, albeit similar, acts.” Id. at 152,
In Oliver, we noted that the same evidence may have been admissible to prove other facts in issue, namely, the feasibility that the defendant could assault a woman in his room without the other family members at home knowing and to show the success of the defendant’s pretext to lure women to his room. Ibid. However, in the present case, the fact patterns in each assault do not raise any similarly compelling
Concerning the offenses tried together involving K.G. and L.R., there simply is insufficient probative evidence linking these crimes on the basis of identity to justify the risk of the jury relying on the evidence for the prohibited purpose of propensity. Although the sexual assaults of K.G. and L.R. were similar in kind and occurred within one-and-one-half years of one another, and there was clear and convincing evidence that each crime did occur, thus satisfying prongs two and three of the Cofield analysis, they were not signature crimes. Because the crimes were not signature crimes, the probative value from introducing one in the trial of the other must be regarded as of minimal value on the issue of identity. There was less-prejudicial admissible evidence on the issue of identity—the DNA comparison in each and the victims’ identifications—which would have bolstered the State’s position in both trials on the issue of the attacker’s identity. See State v. Jenkins, 178 N.J. 347, 366,
We would be remiss if we did not commend the State for conceding, candidly, that the State’s ease in the matter involving K.G. needed some bolstering. KG.’s identification was less compelling than that advanced by L.R. about her attacker. However, the bolstering of the case involving K.G.’s assault should not have come from joinder of the two crimes involving K.G. and L.R.
C.
As for the criminal episode involving S.P., we note at the outset that it was not a crime of the same sort as the ones involving K.G. and L.R. It involved a burglary. There was no sexual assault, and the State did not proffer sexual assault as the intended criminal purpose of the burglary in its indictment, as the Appellate Division noted. Nevertheless, the State advanced that angle in arguing the joinder issue to the trial court and again in its presentation to the jury. Its argument, accepted by the trial court, was that the S.P. burglary should be tried with the burglaries and sexual assaults of K.G. and L.R. in order to admit evidence of how defendant was found by the police and for the purpose of explaining how the State obtained his DNA evidence. That argument is unpersuasive.
The State only needed to prove that it had obtained defendant’s DNA and that it had obtained a search warrant to find a gun at defendant’s home. It was not necessary for the S.P. incident to be tried with the offenses involving K.G. and L.R. It was not necessary for the State to go into detail about how defendant was caught outside of S.P.’s home in order to tie in the DNA evidence and gun used against defendant. And, it prejudiced defendant in defending against the charges involving K.G. and L.R. The evidence adduced on the burglary of S.P. posed the substantial risk that the jury would draw the conclusion that defendant was about to commit a sexual assault on S.P., so he likely committed the assaults on K.G. and L.R.
The evidence here is precisely the type of unduly prejudicial other-crimes evidence
VI.
A.
Our analysis does not end with the conclusion that it was error to have joined the three crimes—involving K.G., L.R., and S.P.—in one trial. We must assess whether the error “ ‘led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.’ ” See State v. Lazo, 209 N.J. 9, 26,
B.
Applying a harmless error standard, we cannot but conclude that the assault of L.R. must be affirmed based on the nuclear DNA evidence tying defendant to the crime, coupled with the victim’s strong identification of defendant. While no New Jersey case bears directly on the sufficiency of DNA evidence alone, other jurisdictions have affirmed convictions based solely on DNA evidence. Although we need not go so far in our holding, several state appellate courts have held that a DNA profile match alone, without corroborative individualized evidence, is sufficient to prove guilt. See, e.g., State v. Abdelmalik,
While we do not suggest that DNA evidence alone is enough, based on a qualitative analysis of the evidence in this matter, the nuclear DNA evidence in L.R.’s case, viewed in combination with L.R.’s immediate and strong identification of defendant during the May 31, 2005 lineup and her in-court identification, rendered harmless the joinder error. See Castagna, supra, 187 N.J. at 312,
That evidence separates this case from the ordinary one when prejudice from joinder would require a new trial. Though we seek to not serve as the thirteenth juror when performing harmless error analyses, we conclude that on these facts the joinder error is harmless beyond a reasonable doubt because of the strong, independent proof of defendant’s guilt. Thus, all convictions relating to defendant’s attack of L.R. must stand.
However, we cannot similarly conclude that the joinder error was harmless in respect of defendant’s convictions for the offenses involving K.G. The independent evidence of guilt in the case of K.G. stands in marked contrast to that of L.R. and does not provide a basis for concluding that the improper joinder was harmless beyond reasonable doubt.
With respect to KG.’s assault, the DNA evidence was the less-precise mitochondrial DNA. We cannot disregard the distinct possibility that the stronger, nuclear DNA evidence obtained for the offenses involving L.R. influenced the jury in its assessment of the offenses involving K.G. In the K.G. case, the DNA did not point with “unparalleled accuracy” to defendant as the perpetrator; rather, the DNA evidence simply did not exclude defendant as the perpetrator. Moreover, there was no strong identification evidence presented. In contrast, the DNA evidence in the L.R. case powerfully demonstrated that defendant was the perpetrator in that sexual assault, and that evidence was buttressed by L.R.’s strong identification. Thus, the joinder of the L.R. offenses in the trial on the K.G. offenses could well have had considerable impact such that, on this record, we cannot conclude that the joinder error was harmless beyond a reasonable doubt in the case of K.G. See Cabbell, supra, 207 N.J. at 337-38,
D.
We analyze the prejudice of joining the offenses involving the burglary of S.P.’s home differently than the other two criminal episodes with which it was tried. It was, as noted earlier, different from the crimes involving K.G. and L.R. It was a burglary, not a burglary and a sexual assault.
Although the trial court made an error in judgment in joining the offenses in the first trial, such an error does not necessarily bring about an unjust result in defendant’s convictions for the offenses involving S.P. We find the record replete with overwhelming evidence of defendant’s guilt in the case involving S.P. Although defendant contests the identifications associated with his involvement in the S.P. burglary, the identification evidence was powerful. It can be regarded as so overwhelming that identity was not seriously at issue.
Both S.P. and her fiancé saw defendant during his attempted burglary of their home. S.P. got a good look at him when he approached her early that morning outside her apartment. When startled by the burglary that began almost as soon as S.P. locked herself in the safety of her apartment, her fiancé chased defendant from their home while S.P. called the police. Defendant was found alone, hiding behind a tree near their apartment—at nearly 3:00 a.m.—at which point S.P. and her fiancé identified defendant at the show-up that followed immediately after these events transpired. In sum, defendant was caught close to the scene of the crime and was identified at a show-up immediately by the victim and her flaneé. Moreover, S.P. identified defendant in court as the perpetrator of the burglary. On this record, we do not view the joinder as having produced an unjust result. To the contrary, we view the independent evidence of guilt practically and conclude that the joinder error was harmless beyond a reasonable doubt.
VII.
As for the other-crimes evidence from S.P.’s burglary that was admitted in the trial on the offenses related to the burglary and sexual assault of J.L., we agree with the Appellate Division that it should not have been admitted.
The State did not need to detail how defendant was caught outside of S.P.’s home in order to tie in the DNA evidence obtained from defendant. It was embellishment, pure and simple. And, it was prejudicial in J.L.’s trial for that amount of information to have been presented to the jury when all that was necessary was for the jury to know that the State had obtained defendant’s DNA. Admitting that extensive evidence in the trial for J.L.’s assault allowed the jury to draw the inference that defendant was about to commit a sexual assault on S.P., so he likely committed the assault on J.L. That inference was impermissible.
As noted by the Appellate Division, though witnesses were instructed to avoid discussion of the S.P. burglary during the second trial relating to the sexual assault and burglary of J.L., several witnesses testified extensively about the burglary for which defendant was not on trial. Moreover, the trial court did not sanitize the evidence in an attempt to minimize the prejudice to defendant. See State v. Barden, 195 N.J. 375, 390,
VIII.
The judgment of the Appellate Division is affirmed in part and reversed in part.
We reverse the Appellate Division judgment reversing defendant’s convictions concerning L.R. for second-degree burglary, N.J.S.A. 2C:18-2; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d.
We also reverse the Appellate Division judgment reversing defendant’s convictions concerning S.P. for second-degree burglary, N.J.S.A. 2C:18—2; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d.
The judgment of the Appellate Division is otherwise affirmed. The matter is remanded to the Law Division for proceedings consistent with this opinion.
Justice ALBIN, dissenting and concurring.
I agree with the majority “that it was error to have joined the three crimes—involving K.G., L.R., and S.P.—in one trial.” Ante at 101,
The majority’s chronicling of the qualitative and quantitative prejudice engendered by improperly joining three separate crimes in one trial would seem to lead to one ineluctable conclusion—that defendant was denied a fair trial. Indeed, it is difficult to imagine a scenario more fraught with prejudice, more stacked against a fair trial, than to wrongly join two highly incendiary cases "with one that should have been tried alone to a jury. The majority concedes that the K.G., L.R., and S.P. cases each should have been tried separately, see ante at 102,
For these reasons, I respectfully dissent.
I.
Defendant was charged with the June 9, 2003 sexual assault of twenty-five-year-old K.G. in her New Brunswick apartment. At a lineup, two years after the brutal attack, K.G. was unable to make a positive identification of defendant. The State’s primary evidence against defendant was mitochondrial DNA taken from K.G.’s pants. Defendant had the same DNA sequence that is found in not more than .06% of North Americans. Almost fifty percent of the evidence presented at trial was irrelevant to the sexual assault of K.G.
Defendant was charged with the January 18, 2005 sexual assault of thirty-nine-year-old L.R. in her Edison apartment. Three weeks after the vicious assault, L.R. viewed a lineup of six men and pointed out one. She was “ninety percent” certain he was her attacker, but that man was not defendant. On May 31, 2005, L.R. viewed another six-man lineup. This time, when defendant came out to take his spot, she stated, “it’s him, it’s him.” Saliva left on L.R.’s body during the sexual assault matched defendant’s nuclear DNA profile—the DNA sequence occurring only in approximately one in 30.8 quadrillion of African Americans. Defendant argued
Defendant was charged with the May 27, 2005 burglary of the North Brunswick apartment in which thirty-one-year-old S.P. lived with her fiancé. At 2:40 a.m. on that day, a man had approached S.P. outside of her apartment. A short while later, he was observed by S.P.’s fiancé attempting to gain entry into their apartment through a window. The police arrested defendant a short distance from S.P.’s apartment. Both S.P. and her flaneé identified defendant at the scene. At trial, at least eighty-five percent of the testimony presented was irrelevant to the apartment burglary.
II.
As mentioned earlier, the majority concedes that these three separate crimes were wrongly joined. Ante at 102,
At issue here is the application of the harmless-error doctrine. That doctrine holds that an error of constitutional magnitude is harmless only if the court is “ ‘able to declare a belief that it was harmless beyond a reasonable doubt.’ ” See State v. Cabbell, 207 N.J. 311, 338,
These principles, when applied to the facts of this case, led the Appellate Division to reverse defendant’s convictions.
III.
A.
The majority claims that defendant received a fair trial in the S.P. burglary case
Because the wrongful joinder so fundamentally undermined defendant’s ability to receive a fair trial in the S.P. case, I would uphold the Appellate Division’s reversal of the convictions in that matter.
B.
The majority also holds that defendant’s convictions for “the assault of L.R. must be affirmed based on the nuclear DNA evidence tying defendant to the crime, coupled with the victim’s strong identification of defendant.” Ante at 102,
The question remains whether a conviction predicated on DNA evidence—despite the wrongful joinder of two cases to a third one—v\lll withstand the harmless-error test. Although it may be that a rational jury can convict based solely on DNA evidence, it is another thing to say that after the introduction of DNA evidence, no amount of prejudice will deny a defendant a fair trial. I am not willing to presume that every jury will swoon over DNA evidence—or presume that the presentation of such evidence will close the book on a defendant’s case. The path cannot be from introduction of DNA evidence to imposition of sentence. In between lies the fundamental guarantee of a fair trial. That cannot be swept away by science. In short, the harmless-error doctrine should not subvert the centrality of the jury’s role in determining guilt.
IV.
Defendant’s guilt in the S.P. case was improperly bolstered by the wrongful joinder of the L.R. and K.G. cases, and his guilt in the L.R. case was improperly bolstered by the wrongful joinder of the K.G. and S.P. cases. Prejudice has so thoroughly infected the proceedings that led to the convictions on the S.P. and L.R. charges that the integrity of the jury verdicts cannot be saved by the harmless-error doctrine. If the evidence against defendant is as strong as the majority believes, the State should have little trouble convicting him after a fair trial.
I fear that by upholding the guilty verdicts in this case the majority is setting an exceedingly high tolerance level for prejudicial evidence that undermines the fundamental guarantee of a fair trial. This case may well become the new standard by which every trial error, however deeply it
For these reasons, I respectfully dissent from the majority’s reversal of the judgment of the Appellate Division in the S.P. and L.R. eases. I concur in the remainder of the majority’s opinion.
For Affirmance in part/reversal in part/remandment—Chief Justice RABNER and Justice LaVECCHIA, HOENS, PATTERSON, and Judges RODRÍGUEZ (temporarily assigned) and CUFF (temporarily assigned)—6.
For dissent in part/concurrence in part—Justice ALBIN—1.
Notes
The charges against the fifth victim were dismissed without reaching trial after defendant was sentenced for the other crimes. Those charges included first-degree aggravated sexual assault, second-degree sexual assault, and second-degree burglary, stemming from crimes committed against T.G. on April 24, 2005.
Although not elicited at trial, the State alleged during discovery that the attacker wore a condom and that it bore on the joinder issue addressed pre-trial.
A separate indictment charged defendant with two additional counts. The first was a second-degree certain persons offense, N.J.S.A. 2C:39-7b(l), 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 (a handgun), N.J.S.A. 2C:20-7, was later dismissed by the State.
After the jury returned the verdict for the charges relating to the assault of J.L., it also found defendant guilty of the charge on the certain persons not to possess weapons offense, which was charged in a separate indictment. The Appellate Division affirmed defendant’s ten-year sentence on that charge. This Court denied defendant's cross-petition for certification on issues relating to that conviction.
The panel specifically rejected the argument that the presence of DNA evidence rendered the other trial errors harmless. Relying on State v. Bradshaw, 195 N.J. 493,
Had the State produced expert testimony to support that use of a condom in a sexual assault was unique or that it was even unusual among sexual assaults committed during burglaries, we may have viewed that discrete fact differently in this fact-driven analysis.
To the extent that defendant maintains that the specter of contamination during the DNA testing nullifies any ability to rely on the DNA evidence, citing Bradshaw, supra, 195 N.J. at 493,