State v. Sterling, A-93 September Term 2011; Supreme Court; opinion by LaVecchia, J.; partial dissent by Albin, J.; decided July 29, 2013. On certification to the Appellate Division. [Sat below: Judges Lisa, Sabatino and Alvarez in the Appellate Division.] DDS No. 14-1-0820 [69 pp.]

In this criminal appeal, the court assesses whether joinder principles were applied properly in defendant’s two trials on offenses arising out of one burglary and three burglary-and-sexual-assault incidents involving four victims.

Defendant Bruce Sterling was charged with, inter alia, burglary, terroristic threats and sexual assault of J.L. in her New Brunswick home arising out of a July 2002 incident. A cervical swab taken from J.L. matched defendant’s DNA profile.

He was charged with the June 2003 burglary and sexual assault of K.G. in her New Brunswick apartment. A hair found on her pajama pants marched his mitochondrial DNA.

He was charged with the January 2005 sexual assault of L.R. in her Edison apartment. She identified him at a lineup and saliva left on her body matched his nuclear DNA.

Defendant was charged with the May 2005 burglary of the New Brunswick apartment where S.P. lived with her fiance, who interrupted a man attempting to enter the apartment through a window. Both S.P. and her fiance identified defendant who was found a short distance from the apartment with his zipper down.

The state contended that the factual underpinnings of the offenses bore indicia of “signature crimes” and sought to try defendant in a single trial. Defendant filed a motion for severance. The court granted the 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, and that the burglary of S.P. could be joined with either of the trials and, if proved at the first trial, evidence of that burglary could be admitted as other-crimes evidence in the second. The state opted to try the S.P. burglary in the first trial. Evidence about S.P.’s burglary was presented during the trial involving J.L.

Defendant was found guilty on all charges.

The Appellate Division reversed the convictions from the first trial, concluding that the threshold for a signature crime was not satisfied for the burglary-and-sexual-assault incidents and that the trial court abused its discretion in not granting defendant’s motion to sever those charges and also the burglary charges. The panel also reversed defendant’s convictions for the J.L. burglary-and-sexual-assault incident based on the wrongful admission of other-crimes evidence related to the S.P. burglary.

Held: The trial court erred in joining the offenses against K.G. and L.R. in the first trial as there was no uniqueness to the manner in which those crimes were committed. It also erred in joining the S.P. burglary in that trial. The court erred in admitting other-crimes evidence from S.P.’s burglary in the trial related to the burglary and sexual assault of J.L. The convictions regarding K.G. and J.L. were properly reversed. However, the quality and quantum of the evidence against defendant regarding L.R. and S.P. were of sufficient weight to render the joinder error harmless.

The court begins by noting that Rule 3:7-6 permits two or more offenses to be charged in the same indictment when there is some connection between the separate counts rendering the evidence probative of a material issue in another charge. Rule 3:15-2(b) gives a court discretion to sever charges if joinder will result in prejudiced. The test for assessing prejudice is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charges.

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 or when a particular weapon or disguise used in one crime connects a defendant to another offense. The standard for admitting other-crimes evidence to prove identity is more stringent when the state attempts to link a particular defendant to a crime on the basis of a signature way of committing the crime. The need for expert testimony as to signature elements should be assessed on a case-by-case basis.

The court says that here, while there were some similarities between the burglaries and sexual assaults involving K.G. and L.R., there is no uniqueness to the manner in which those crimes were committed. The common elements were the use of a condom, the racial comments, and the manner in which the perpetrator cut the victims’ underwear. None rises to the level of a signature element. Thus, there is insufficient probative evidence linking the crimes on the basis of identity to justify the risk of the jury relying on the evidence for the prohibited purpose of propensity.

As for the incident involving S.P., the court notes that it did not involve a sexual assault. It rejects the state’s claim that it had to 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 to explain how the state obtained his DNA evidence.

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. It should have been excluded under N.J.R.E. 404(b).

As to whether these joinder errors led to an unjust result, the court affirms as to the assault on L.R., finding that the strong independent proof of defendant’s guilt, including the nuclear DNA evidence tying him to the crime and the victim’s strong identification of him, rendered the joinder error harmless beyond a reasonable doubt. It reverses the K.G. conviction because there was no strong identification evidence and mitochondrial DNA is less precise, raising the possibility that the stronger, nuclear DNA evidence regarding L.R. influenced the jury in assessing the offenses involving K.G. It affirms the conviction as to the S.P. burglary, finding the record replete with evidence of defendant’s guilt, rendering the joinder error harmless beyond a reasonable doubt.

However, the court holds that it was error to include other-crimes evidence from S.P.’s burglary in the trial related to J.L. All the jury needed to know was that the state had obtained defendant’s DNA. Admitting the extensive evidence regarding S.P.’s burglary 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.

Justice Albin opines that 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 verdicts cannot be saved by the harmless-error doctrine and he would reverse those convictions. He concurs in the remainder of the majority’s opinion.

Chief Justice Rabner, Justices Hoens and Patterson and Judges Rodriguez and Cuff, both temporarily assigned, join in Justice LaVecchia‘s opinion. Justice Albin concurs in part and dissents in part.

For appellant — Joie D. Piderit, Assistant Prosecutor (Bruce J. Kaplan, Middlesex County Prosecutor). For respondent — Marcia H. Blum, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender).