STATE OF NEW JERSEY v. CHRISTOPHER KORNBERGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0859-07T4

A-0679-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER KORNBERGER,

Defendant-Appellant.

April 11, 2011

 

Submitted February 28, 2011 - Decided

 

Before Judges Reisner, Sabatino and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3322.

 

The Law Offices of Robin Kay Lord, LLC, attorneysfor appellant (Ms. Lord and Richard W. Berg, of counsel and on the briefs).

 

Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

 

The opinion of the court was delivered by

REISNER, J.A.D.

Defendant Christopher Kornberger appeals from his convictions for: second-degree sexual assault, N.J.S.A. 2C:5-1, 2C:14-2a(4); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1, 2C:14-2a(6); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and first-degree attempted kidnapping, N.J.S.A. 2C:5-1a(3), 2C:13-1b(1); for which he was sentenced to an aggregate term of fifteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.

I

These consolidated appeals concern defendant's conviction by a jury in Camden County for attacking N.D. with a tire iron and attempting to sexually assault her, and his later guilty plea to first-degree attempted kidnapping of R.W. for the intended purpose of sexually assaulting her. Defendant gave a lengthy confession concerning both incidents, as well as several crimes he committed in Burlington County.1 His motion to suppress the confession was denied following a Miranda2 hearing. The judge then severed the two cases for trial, and the N.D. trial was held first.

At that trial, N.D. testified that as she was walking home at about 4:30 a.m. on March 29, 2003, she encountered a man who, without warning, began hitting her over the head with a tire iron. He also broke one of her hands as she was trying to ward off the blows to her head. As she lay on the ground, injured, the assailant pulled her legs straight, straddled her body, unbuttoned his pants and attempted to remove her pants. During the assault, she had a clear view of the assailant's face as he was sitting on her legs facing her. N.D. was able to escape after the attacker put down the tire iron and she grabbed it and started swinging it at him. N.D. initially told the police that the attacker had blonde hair. At the trial, N.D. identified defendant as the attacker, although he had dark hair.

After defendant's confession was redacted with the agreement of both counsel, to remove irrelevant or prejudicial material, the confession was presented to the jury.3 In his confession, defendant described in detail how he chose his victim, came up behind her, and repeatedly hit her with the tire iron. He admitted that he attempted to rape her, but gave up after she resisted.

The State also presented evidence concerning the tire iron, which the police found after defendant told them its location during his confession. Expert testimony confirmed that blood found on the tire iron matched a DNA sample taken from N.D. Although the expert could not say with absolute certainty that the DNA on the tire iron was from N.D., he testified to a reasonable degree of scientific certainty, in the legal sense, that it was a "match."

After he was convicted and sentenced in the N.D. case, defendant pled guilty to the attempted kidnapping of R.W., reserving his right to appeal from the denial of the Miranda motion.4

II

On this appeal, defendant raises the following points for our consideration:

POINT I: SINCE THE STATE FAILED TO SATISFY ITS BURDEN OF DEMONSTRATING THAT DEFENDANT'S CONFESSION WAS VOLUNTARY, ADMISSION OF THIS STATEMENT INTO EVIDENCE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS.

 

POINT II: THE REDACTION OF THE TRANSCRIPT OF DEFENDANT'S STATEMENT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ELIMINATING REFERENCES RELEVANT TO DEFENDANT'S ABILITY TO FORM THE REQUISITE INTENT. (Not Raised Below)

 

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEETH AMENDMENT OF THE UNITED STATES CONSTITUTION AND N.J. CONST., ART. I, . 1 WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, INAPPROPRIATE AND PREJUDICIAL INSTRUCTION TO THE JURORS ON THE LAW OF ATTEMPTED AGGRAVATED SEXUAL ASSAULT. (Not Raised Below)

 

POINT IV: THE TRIAL COURT ERRED IN PERMITTING THE STATE'S EXPERT TO TESTIFY CONCERNING THE RESULTS OF THE STR METHOD OF DNA TESTING. (Partially Raised Below).

 

POINT V: DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE DENIED BY THE PROSECUTOR'S MISCONDUCT IN MAKING IMPROPER SUMMATION COMMENTS. (Not Raised Below)

 

For the reasons that follow, we are satisfied that none of these arguments provide a basis for reversal.

III

 

A.

 

We first consider the arguments defendant raises in Point III: that the judge should not have instructed the jurors on the law of attempt before instructing them on the substantive crime of aggravated sexual assault, and that the judge gave an incorrect instruction on attempt. We consider these arguments under the plain error rule, which requires defendant to establish that, considered in the context of the entire charge and the evidence presented at trial, the error had "a clear capacity to produce an unjust result." R. 2:10-2; see R. 1:7-2. "The standard for assessing the soundness of a jury instruction is 'how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole.'" State v. Savage, 172 N.J. 374, 387 (2002)(citation omitted).

Plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The charge must be read as a whole in determining whether there was any error. Even so, if the error is in a jury instruction that is "crucial to the jury's deliberations on the guilt of a criminal defendant[,]" it is a "'poor candidate[] for rehabilitation' under the plain error theory."

 

[State v. Torres, 183 N.J. 554, 564 (2005)(citations omitted).]

 

We find no error, plain or otherwise, in the judge's decision to explain to the jury the law of attempt, before explaining the elements of the substantive crime of aggravated sexual assault. With respect to the sexual assault on N.D., defendant was only charged with attempt, and therefore it made logical sense to explain the law of attempt first. Defendant cites no case law to support his argument concerning the organizational structure of the charge, and we find nothing in the order of the charge that would have confused the jury.

Defendant next contends, and the State essentially concedes, that in addition to giving the jury the correct charge on attempt, the judge also included instructions on types of attempt that did not apply to this case. We begin by considering the statutory definition of the three types of criminal attempt:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

 

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

 

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

 

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

 

b. . . . Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

 

[N.J.S.A. 2C:5-1a to -1b.]

 

Type a(1) concerns a completed crime which fails of its purpose because the facts are not as defendant believes them to be. See State v. Condon, 391 N.J. Super. 609, 616 (App. Div.) (citing as an example, performing an illegal abortion on a woman who turns out not to be pregnant), certif. denied, 192 N.J. 74 (2007). Type a(2) involves a situation "'where the criminal act is very nearly complete and requires one more step either beyond the actor's control or not requiring his control for completion.'" Id. at 615-16 (quoting Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:5-1 (2006)). Type a(3) requires that the actor, with intent to commit the crime, takes a substantial step toward its commission. Id. at 616.

Here, the applicable type of attempt was the "substantial step" described in N.J.S.A. 2C:5-1a(3) and -1b. However, in addition to instructing the jury about that type of attempt, the judge mistakenly included instructions concerning the two other types of attempt. Primarily relying on Condon, defendant argues that this error requires reversal, because we cannot be sure of the theory on which the jury convicted him. That was the result in Condon, where we reversed defendant's conviction based on an erroneous charge.

Condon involved an internet sting operation, in which the defendant made internet contact with a fictional thirteen-year-old girl and arranged to meet for the purposes of having sex with her. Condon, supra, 391 N.J. Super. at 612-13. When he arrived at the meeting place, he was arrested. Id. at 613. He was convicted of attempted sexual assault, after the trial court charged the jury as to types a(1) and a(3). Id. at 613-14. In reversing, we reasoned that if a defendant completes an "impossible" crime, he may be charged under both a(1) and a(3), because he necessarily has taken a substantial step. Id. at 617. However, if he only takes a substantial step, but does not complete the intended crime, he can only be charged under a(3):

In order to complete a criminal act under subsection a(1), a defendant would have to have taken a substantial step toward the commission of the crime under subsection a(3). Accordingly, under subsection a(1), where a defendant "purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be," we are satisfied that he or she could also be charged under subsection a(3). However, the same is not true when the defendant fails to complete the criminal act under subsection a(1). In that case, if the defendant has taken a substantial step toward the commission of a crime, he or she may only be charged under subsection a(3).

 

Here, defendant did not complete the criminal act, nor under the circumstances, could he have done so. Accordingly, N.J.S.A. 2C:5-1a(1) was not applicable. Under these facts, only subsection a(3) should have been charged.

 

[Ibid.]

 

Under the facts presented in that case, we found that the charging error was prejudicial:

Because the jury was instructed that it could convict defendant under either subsection a(1) or a(3), we are constrained to reverse. We cannot determine whether the jury convicted defendant solely under the impossibility theory a(1), and but for unknown reasons, would have acquitted him under subsection a(3); or whether they convicted him solely under the substantial step in the course of conduct theory under subsection a(3).

 

[Id. at 617-18 (citations omitted).]

 

As in Condon, we agree that the judge committed a charging error. But, we reach a different conclusion as to the consequence of the error. Unlike Condon, in which the theory of defendant's guilt may have presented some complexity to a lay jury, this case presented no complexity whatsoever. N.D. testified that, without provocation, defendant hit her with a tire iron multiple times, inflicting serious injuries and knocking her to the ground. He then pulled her legs straight, straddled her legs, unbuttoned his pants, and started trying to remove her pants. He only stopped after she grabbed the tire iron and began swinging it at him. Defendant confessed that he intended to rape N.D., attempted to rape her, and attacked her with the tire iron in furtherance of that attempt. Given this evidence, a conviction for attempted aggravated sexual assault, based on taking a substantial step toward that result, was virtually inevitable.

Moreover, despite his initial mistake in adding inapplicable definitions of attempt, the judge clearly explained to the jurors how the instructions he was giving them related to the evidence presented. Additionally, the parties did not present conflicting theories on the attempt issue, such that an error in that portion of the charge would likely prove prejudicial. Cf. State v. Martin, 119 N.J. 2, 16-17 (1990). Taken in context, there is no realistic likelihood that the jury would have focused on the clearly inapplicable theories of impossibility or a missing step beyond defendant's control. We will not speculate that "for unknown reasons" the jury might have convicted defendant on either a(1) or a(2) when they "would have acquitted him" under a(3). Cf. Condon, supra, 391 N.J. Super. at 618.5 Given the overwhelming evidence in this record, there is no chance that any jury "would have acquitted" this defendant under a(3). Ibid.; see State v. Wilder, 193 N.J. 398, 415-18 (2008)(overruling State v. Christener, 71 N.J. 55 (1976), and cautioning against overturning jury verdicts based on speculation about the jury's reasoning, where substantial evidence supports the conviction).6

We find no likelihood that the errors in the charge led the jury to convict defendant when they might otherwise have acquitted him and, therefore, no basis to conclude that the error in the charge had "the clear capacity to produce an unjust result." R. 2:10-2; see State v. Macon, 57 N.J.325, 335-37 (1971).

B.

We next consider defendant's challenges to the admissibility of his statement to the police. In that detailed statement, defendant confessed to the assaults on R.W. and N.D., as well as the murder of Krista DiFrancesco in Burlington County and assaults on N.C. and E.L.J. in Burlington County.7 We begin by considering the evidence presented at the Miranda hearing.

These are the most pertinent circumstances surrounding defendant's statement. Detective Michael Sperry of the Burlington County Prosecutor's Office testified that in May 2004, law enforcement officers in Burlington and Camden Counties were investigating a series of attacks on women in each county, including the murder of DiFrancesco in Burlington County; that attack occurred shortly before Mother's Day.8 During the investigation, the police asked defendant to give a DNA sample, which was later analyzed as matching DNA found at the scene of the attack on one of the Burlington County victims, N.C. Therefore, even prior to the day of his confession, defendant knew he was under suspicion.

Based on their investigation results, law enforcement officers placed defendant's house under surveillance. After defendant drove away from his house, at approximately 8:30 p.m. on May 13, 2004, law enforcement officers stopped his car and told defendant they wanted to talk to him. Defendant agreed to go with the officers in their car to the Burlington County Prosecutor's Office (BCPO). He was not placed under arrest and was not restrained during the ride.

Defendant asked why they needed to speak with him, and Sperry explained that he wanted to discuss some things and show defendant photographs, but he did not want to talk about anything specific in the car. In the meantime, they discussed defendant's occupation and hobbies. Defendant was calm and cooperative, although he occasionally seemed distracted and did not always immediately answer Sperry's questions. At approximately 9:05 p.m., they entered the BCPO through the rear entry and the officers asked defendant to wait in an interview room.

Sperry testified that at the time, the Prosecutor's Office did not videotape the initial interview with a suspect. Once the interviewers determined that the suspect was cooperative and was "able to give a detailed, chronological description of the crime," they would turn on the recording equipment and recorded the suspect's final statement. As Sperry explained, the interviewer would elicit the suspect's confession in an unrecorded session, then prompt the suspect to repeat the confession by telling him that the interviewer needed to "back up and start over so . . . there's no misunderstandings."

At the start of defendant's interview, Sperry first asked questions to determine whether defendant was familiar with Miranda warnings. Defendant said he was. Sperry then advised defendant of his Miranda rights. Defendant responded affirmatively to each question on the Miranda card, signed it, and "indicated that he would" waive his Miranda rights and speak to Sperry. Sperry asked defendant if he was under the influence of alcohol, and defendant responded that he was not. Sperry observed nothing that would suggest that defendant was under the influence of alcohol or drugs.

Sperry then asked defendant about his background. Defendant admitted that he sometimes drank alcohol and in the past had used marijuana, cocaine, angel dust and ecstasy. He told Sperry that "he had been in a funk for some time" with respect to women, but he believed that he was emerging from it. Defendant also said that his alcohol and drug use was his method "of coping with his girlfriend issues." Defendant further admitted that he was on probation for a burglary charge. Defendant then told Sperry that he had talked enough about his background and wanted to know why the police wanted to speak with him. Sperry told him that he believed defendant knew the answer to that question, and that he "wanted to talk to him about some incidents that happened in the area." Defendant replied with "something to the effect of, oh, I get it; this is about the girl that was attacked . . . around Mother's Day." Sperry understood that to be a reference to the attack on DiFrancesco.

Later, when defendant recounted the details of the assaults on the women, he began to cry. Defendant told Sperry that he was concerned about the effect his confession would have on his mother. Defendant also expressed concern that he would lose his friends once news of his crimes got out and he went to jail. Although defendant and Sperry discussed defendant's desire to obtain help, Sperry testified that he never made promises to defendant. Instead, Sperry explained to defendant that his mental health, drug, and alcohol issues indicated the existence of an underlying problem that had not been addressed. Additionally, Sperry advised defendant "that his prior contact with police may have just been a way for him to cry out for help and that . . . the system had failed him. His parents had tried to get him help, but they just weren't prepared to deal with [what] he needed to overcome[;] the issue he faced." Sperry explained that he did not personally offer to help defendant, but instead told him "that through the criminal justice system he would be able to come into contact with services that he had failed to receive."

According to Sperry, due to a miscommunication with his backup team, who were observing the interview from outside the interview room, the videotaping of defendant's statement did not begin when Sperry anticipated it would. Defendant began giving his first unrecorded statement around 10:50 p.m. After defendant had confessed to murdering DiFrancesco, and attacking N.C., N.D. and R.W., Sperry gave the cue for recording to start and asked defendant to repeat his statement in specific detail. However, at 11:35 p.m., Sperry was notified that the tape had not started. Recording actually began at 11:39 p.m. At that point, Sperry began asking defendant to discuss incidents that, according to Sperry, defendant "had already told us twice."

During the recorded portion of the interview, defendant first described in detail his rape and murder of DiFrancesco. When Sperry then began asking defendant about the attack on another victim, N.C., defendant asked if they could continue the questioning at a different time:

A. Like I know we have to do this and all. Can we do this at a different time, finish up?

 

Q. Well.

 

A. I mean if you need to, I understand that, but.

 

Q. Well listen Chris, I just want to be right up, right up front with you about this. I don't want to have to reopen the pain that you're going through having to describe this stuff, okay.

 

A. I go through the pain everyday.

 

Q. I know you do Chris but actually talking about it, I see that it's difficult for you to talk about. So, I'd rather get it over with now [than] to put it off. You know what I mean? Are you okay with that? Tell me . . .

 

A. Well I guess I have to be.

 

Sperry then asked a few more questions about the DiFrancesco murder before returning to the attack on N.C. In his testimony at the Miranda hearing, Sperry explained that if defendant had unambiguously stated that he "wanted to stop speaking to [Sperry]," the interview would have ceased. However, he did not understand defendant to be stating that he refused to continue with the interview; in context, he understood defendant to be saying that he was willing to keep talking and knew he needed to talk about the incidents in order to deal with his emotional pain.

Later in the interview, defendant asked Sperry if he knew what was wrong with him. Sperry explained that he thought defendant had a "problem" but did not know what caused the impulses he described. Sperry told defendant that "there are people out there that will be able to help you . . . understand that, or at least try to help you understand that . . . . [Y]ou need to be honest with yourself and honest with . . . any counselors or anything that you might come in contact with."

During the recorded statement, defendant also expressed concern that his parents would find out what he had done. He cried and stated, "I swear if I didn't have parents I would have turned myself in a long time ago." Sperry told defendant he thought it was honorable that he did not want to hurt his parents, and it showed how much he loved them.

Later, defendant asked if Sperry knew what was going to happen to him. Sperry responded:

Q. I really don't. What do you think is going to happen Chris? Let me put it this way to you buddy. I told you I'm not going to bullshit you.

 

A. Please don't.

 

Q. I'm not gonna. You know, you're in trouble. And you know, you don't need me to tell you that you're in trouble Chris, alright. But if I were to tell you what is gonna happen number one I'd be taking a guess. And number two, I'd really be stepping out of place cause I don't know what's going to happen okay, too many factors so to speak, you know.

 

After this exchange, defendant immediately returned to drawing a diagram and describing his attack on N.D.

Later in the interview, defendant stated that he deserved to die. He explained that he could not imagine doing what he did, although he knew he did it. Sperry asked if he had been fighting with what he did for a long time, and defendant responded that it was long enough and that he had "done enough damage."

After taking a bathroom break at 1:14 a.m., defendant said that he knew he had to go to jail and that word of what he had done would get out. He asked if there was any way he could be protected because he was scared. Sperry told defendant that he would probably be kept in isolation for the night and that the county jail, while not a good place, was not as bad as he feared.

After completing his confession, defendant again insisted that he knew what he did was wrong, and he was sorry and scared. He told Sperry that he wanted help: "I would like to be put away [in] a place where like . . ., I could just be helped. You know, whether it's forever I don't know."

Sperry then asked him a series of questions designed to confirm that his confession had been voluntary. Defendant confirmed that he was read his rights and that he agreed to waive his rights. When Sperry then asked him if he had agreed to talk to the police, defendant responded, "Yeah. Not in the beginning, but yeah." Sperry asked defendant again, and he said "Well I did." Sperry then reviewed the background information they discussed and reminded defendant of his request to know what the interview was really about, and defendant said, "Oh, I agreed, I see what you're saying, I agreed."

Defendant also agreed with Sperry that he was not threatened or coerced and freely gave his statement. Defendant said, "Listen, I know I deserve what I'm going to get." He then stated that he hoped Sperry had not lied to him. Sperry responded, "Well Chris, what's going to happen [here, we're] going to deal with . . . what's happening legally and then depending on how willing you are to help yourself, you know there will be services made available to you." Defendant did not provide any inculpatory information after Sperry made this statement, which occurred at the very end of the interview.

In a written opinion dated August 16, 2006, the trial judge denied the suppression motion. With respect to the question of whether defendant voluntarily waived his Miranda rights, the judge determined that, at the time of the statement, defendant was nineteen years old, had prior experience with law enforcement, and "appear[ed] well-spoken and responsive to questioning." Moreover, "his conduct in answering questions for a period of about 4 hours [was] a clear manifestation of his desire to waive" his rights.

The judge also considered defendant's admission that he was advised of his rights, and considered that the interrogation was "not particularly lengthy." He also did not find evidence of police coercion. Immediately following the Miranda warnings, defendant agreed to talk and was given opportunities to smoke, use the bathroom, and drink soda. The judge observed that although defendant began the videotaped portion of the statement cradling his head in his hands, he occasionally "reclined back in his seat and had his arms behind his head." Defendant also volunteered information, drew a diagram to assist Sperry in understanding his description of the crime against N.D., and corrected Sperry when he misunderstood some information. Moreover, although defendant occasionally cried, he was no "more uncomfortable than a typical defendant undergoing custodial interrogation." Based on those facts, the judge determined that defendant's will was not overborne.

The judge also rejected defendant's argument that Sperry improperly elicited the confession with promises of assistance. He reasoned that, because Sperry had already told defendant that he was going to jail, defendant would have had no reason to believe Sperry was promising "help outside of the criminal justice system in return for a confession."

Nonetheless, defense counsel argues this exchange indicates an earlier promise, made before the recording of the interrogation began. However, Sperry testified he never offered to personally help defendant in any way. The Court had the opportunity to observe Sperry's demeanor as he testified. The Court found Sperry to be credible and forthcoming and his testimony believable. . . . Defense counsel's claim that a promise of help induced his statement is unsupported by any testimony or any other evidence.

 

Likewise the judge found that Sperry's statement, that the system had failed defendant and would only be able to help him if he told the truth, was "an example of psychologically-oriented questioning" that is "permissible in the context of custodial interrogation." "That Sperry may have appealed to defendant's sense of self-preservation, e.g., informing him [that] telling the truth would enable the criminal justice system to put services in place for him, does not suggest defendant's will was overborne or that his confession was induced by promise." The judge concluded that "[u]nder the totality of the circumstances, defendant's statement was voluntary."

Finally, the judge addressed defendant's argument that Sperry improperly ignored his request to terminate the interrogation. The judge first noted that defendant had confessed before his recorded statement began. The judge found that although recounting the crimes took an emotional toll on defendant, leading to his request to continue "another time," defendant also immediately said he understood if Sperry needed to continue. Based on those facts, the judge found that because "defendant did not indicate he no longer consented to questioning[,] . . . Sperry was not required to regard [his] ambiguous statements as [a]n invocation of his right to stop questioning." Moreover, when questioning resumed, defendant's demeanor did not change and he continued to cooperate. Thus, the court concluded that defendant's waiver and confession were entirely voluntary and admissible at trial.

Our review of the trial judge's decision is limited. On an appeal from the decision of a suppression motion, we consider "only whether there was sufficient credible evidence to support the trial court's findings . . . ." State v. Elders, 192 N.J. 224, 231 (2007); see State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). We may not "review[] the evidence de novo or act[] as a factfinder in the first instance." Elders, supra, 192 N.J. at 231. Nor can we second-guess the judge's factual findings, even if they were drawn in part from reviewing a videotape. Id. at 244-45. And we owe particular deference to the judge's credibility determinations based on his observation of witness testimony. State v. Locurto, 157 N.J. 463, 474 (1999). However, we are not bound by the judge's conclusions if they are inconsistent with applicable law. See State v. Burno-Taylor, 400 N.J. Super. 581, 605 (App. Div. 2008).

After reviewing the record, we find no basis to disturb the trial judge's decision to credit Sperry's testimony. More generally, we also find that the judge's factual findings are supported by substantial credible evidence. See Elders, supra, 192 N.J. at 231. Therefore, we must consider defendant's legal arguments in light of the facts as the judge found them.

As the judge correctly observed, the voluntariness of a defendant's confession is weighed using "the totality-of-the-circumstances test." State v. Nyhammer, 197 N.J. 383, 388, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). That test includes "such factors as the defendant's 'age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Id. at 402 (quoting State v. Presha, 163 N.J. 304, 313 (2000)). We are satisfied that the judge properly applied those factors for the reasons stated in his opinion.

Defendant contends that the police should have arrested him, instead of merely stopping his car and asking him to voluntarily accompany them to headquarters for questioning. He asks us to infer that the officers proceeded this way to discourage him from asking for an attorney. We find no merit in this argument.

To ensure that a Miranda waiver is knowing as well as voluntary, if the police have obtained a warrant for a suspect's arrest they must reveal that fact to the suspect before they ask for a Miranda waiver. State v. A.G.D., 178 N.J. 56, 68 (2003). "The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights." Ibid. However, A.G.D. does not stand for the proposition that the police must obtain an arrest warrant before asking a suspect to submit to voluntary questioning.

In Nyhammer, the Court declined to adopt a rule requiring police to advise that a person is a suspect before beginning questioning:

In the typical case, explicit knowledge of one's status as a suspect will not be important for Miranda purposes. However, explicit knowledge of one's suspect status, in some unusual circumstance, might be a useful piece of information in exercising a waiver of rights under our state-law privilege against self-incrimination. Nevertheless, the failure to be told of one's suspect status still would be only one of many factors to be considered in the totality of the circumstances. We must acknowledge the reality that in many, if not most, cases the person being questioned knows he is in custody on a criminal charge. We also are mindful that the Miranda warnings themselves strongly suggest, if not scream out, that a person is a suspect. . . . Last, the nature of police questioning will be another stark reminder that the person under interrogation is deemed a suspect.

 

[Nyhammer, supra, 197 N.J. at 407-08.]

 

In this case, defendant already knew he was a suspect, because the police had previously asked him to provide a DNA sample. Further, when asked if he knew why the police wanted to talk to him, he remarked that they probably wanted to question him about the woman who was attacked on "Mother's Day," a clear and self-initiated reference to the DiFrancesco murder. The police then administered the Miranda warnings and obtained a waiver, before asking defendant questions about any of the crimes under investigation. They were not required to obtain an arrest warrant for defendant before questioning him.

We likewise find no merit in defendant's contention that his confession was not voluntary. The judge found credible Sperry's testimony that defendant willingly agreed to talk to him after being given Miranda warnings, and that Sperry made no promises to defendant to induce his confession.

Sperry's expressions of sympathy for defendant's emotional distress over the nature of his crimes, and his acknowledgement that defendant might need psychological help, did not render defendant's confession involuntary. See State v. Cook, 179 N.J. 533, 563 (2004); State v. Galloway, 133 N.J. 631, 654-56 (1993); State v. Miller, 76 N.J. 392, 405 (1978). There is no basis in this record to support defendant's claim that his confession was the product of coercion or that his will was otherwise overborne. Cf. State v. Patton, 362 N.J. Super. 16, 46 (App. Div.) (some forms of psychological trickery are acceptable, but police may not induce a confession by using fabricated evidence), certif. denied, 178 N.J. 35 (2003); People v. Hogan, 647 P.2d 93, 108-109 (Cal. 1982)(extreme psychological coercion rendered defendant's confession involuntary), overruled by People v. Cooper, 809 P.2d 865, 903 (Cal. 1991) (overruling Hogan on an unrelated issue).

We also agree with the trial judge that defendant did not invoke his right to remain silent by asking "Can we do this a different time, finish up?" when he thereafter immediately also stated, "I mean if you need to, I understand that." Right after defendant made those statements, Sperry responded that he would prefer to "get it over with now" but asked defendant if defendant was "okay with that." Defendant responded "I guess I have to be," and resumed describing his attack on DiFrancesco.

Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination. Law enforcement officials, however, are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning.

 

[State v. Bey (II), 112 N.J. 123, 136-37 (1988).]

 

Where a suspect makes an ambiguous statement, the officer should seek clarification before proceeding with the questioning. See State v. Johnson, 120 N.J. 263, 283 (1990). That is what Sperry did. According to Sperry's testimony, which the judge found credible, at the point where defendant asked about "finishing up" at another time, he had already confessed twice and was going over his statement with Sperry a third time. "Not merely the words spoken, . . . but the full context in which they were spoken have to be considered in determining whether there has been an invocation of the right to remain silent." State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005). Moreover, "[t]he police need not accept at face value a defendant's request for a break in the interrogation as an assertion of the right to silence." Roman, supra, 382 N.J. Super. at 66. We agree with the trial judge that, taken in context, defendant was not invoking his right to silence; rather, he was expressing his preference to take a break, but also indicating his willingness to continue answering questions if the police wanted him to. We find no basis to overturn the judge's conclusion that defendant's entire confession was voluntary.

C.

Defendant also contends, for the first time on appeal, that it was error to redact his confession before giving it to the jury. This point is without merit and warrants little discussion. R. 2:11-3(e)(2). First, this point is barred under the doctrine of invited error, because defense counsel agreed to the redactions. See State v. Kemp, 195 N.J. 136, 155 (2008); State v. Harper, 128 N.J. Super. 270, 277 certif. denied, 65 N.J. 574 (1974). Second, if we consider the argument under the plain error rule, R. 2:10-2, the passages in question revealed defendant's mental problems and possible sexual compulsions, evidence prejudicial to the defense.

At his trial, defendant did not assert defenses based on alleged mental illness. Instead, the defense theory was that defendant did not commit the assault on N.D. and that she had misidentified him. The redacted passages were not relevant to that defense. They were clearly more prejudicial than probative, and they were properly omitted. See N.J.R.E. 403.

D.

Defendant next contends that the State's DNA expert should not have been permitted to testify concerning the results of the short tandem repeat (STR) method of DNA testing, because that method was not proven reliable. It is not clear on this record that the expert in fact used the STR method; he only testified that he used the polymerase chain reaction (PCR) method. Defendant did not raise the issue of the type of DNA testing used, nor did he question the reliability of STR technology at the trial. Therefore, he may not raise the issue for the first time on this appeal. See State v. Souss, 65 N.J. 453, 460 (1974). However, even if we consider the argument, it is without merit.

At the time the trial was conducted, the STR method had been found reliable in State v. Deloatch, 354 N.J. Super. 76, 90 (Law Div. 2002)(noting that "every appellate court in the nation that has addressed the issue has accepted the scientific reliability of STR technology"). Moreover, we recently recognized the reliability of the STR method in State v. Calleia, 414 N.J. Super. 125 (App. Div.), certif. granted, 204 N.J. 41 (2010). Although the appeal in Calleia focused on the Y-STR method, which is only used with DNA from males, we acknowledged that "[b]ecause autosomal STR DNA testing provides a high probability of identifying an individual as the DNA source, it is the preferred method of analysis." Id. at 146.

Defendant also contends that the DNA expert should not have been allowed to testify, because he could not offer his opinion to a reasonable degree of scientific certainty. That is a misstatement of the testimony. The expert testified that the test results showed a match, but that match was not to the level of virtually absolute certainty that could be achieved using a larger DNA sample. He testified that, instead of one in about 280 billion, the odds were about one in 700,000 that someone else would have that DNA. However, he testified to a reasonable degree of scientific certainty that by accepted standards of DNA testing, it would be recognized as a "match."9

As we acknowledged in Calleia, where the Y-STR testing could only show that the defendant could not be excluded as the source of the sample, such evidence is relevant and admissible. Its weight is for the jury to determine. There, we analogized the DNA evidence to a shoe imprint, which was relevant even though it could not establish defendant's guilt because any number of people might have the same shoes. Id. at 151. "[A]lthough this evidence cannot unequivocally establish that defendant was the person who killed his wife, it does show that defendant cannot be excluded from the class of individuals who could have been the killer." Id. at 150; see State v. Marcus, 294 N.J. Super. 267, 287 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998).

Finally, in light of the massive evidence pointing to defendant's guilt, the DNA evidence can fairly be described as peripheral to the State's case. Even if the evidence was admitted in error, it would have been harmless.

 

 

E.

 

Finally, defendant contends, for the first time on this appeal, that the prosecutor made certain improper statements in summation. Defendant argues that the prosecutor should not have commented on the "horror" the victim experienced, and the victim's right to "justice." We agree that those statements came perilously close to crossing the line between fair comment and improper appeal to jurors' emotions. See State v. Rose, 112 N.J. 454, 521 (1988). However, "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). Further, even if they were improper, the statements were not so egregious as to "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Koedatich, 112 N.J. 225, 338 (1988) (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

Defendant also contends that the prosecutor improperly speculated in summation that defendant might have dyed his hair blonde before he attacked N.D. Her comment reflected N.D.'s testimony on cross-examination that her attacker might have dyed his hair. In the same portion of her summation, the prosecutor conceded that N.D. might have been wrong about the color of defendant's hair. The gist of her argument was that regardless of the color of defendant's hair, there was more than enough evidence on which to convict him. We find no impropriety in the prosecutor's comments on this point, and in any event, nothing in those remarks would warrant reversing defendant's conviction. R. 2:10-2; Koedatich, supra, 112 N.J. at 336-37.

A

ffirmed.

1 In a companion appeal, we affirmed defendant's convictions for attacking women in Burlington County. State v. Kornberger, Docket No. A-6133-07 (App. Div. April 11, 2011).

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

3 The confession was originally recorded on videotape, but was later re-recorded on a DVD to improve the sound quality. There was no objection to this procedure. The jury was shown the redacted DVD, and was given the redacted transcript to use as an aid while watching the DVD. During a pre-trial Driver hearing, all counsel had agreed to certain corrections to the transcript. See State v. Driver, 38 N.J. 255, 287-88 (1962).

4 The fifteen-year sentence for the attempted kidnapping of R.W. was imposed concurrent to the nine-year sentence for the attack on N.D.

5 There was no indication of jury confusion. They asked no questions. They only sent out a request for a copy of the redacted transcript of defendant's confession, which both counsel agreed they could have.

6 In Condon the panel reversed because of the chance that, for some unknown reason, the jury might have acquitted defendant under a(3), the only applicable section of the attempt statute. That approach might no longer be legally correct, in light of Wilder, which was decided a year after Condon. Wilder dealt with "overcharging," where the jury is improperly charged as to a more serious crime which is not supported by the trial evidence, but only convicts the defendant of a lesser included offense. Wilder, supra, 193 N.J. at 402. Wilder rejected the previously-accepted rationale that the overcharging is prejudicial error because the jury might have compromised on convicting defendant of the lesser offense when it might otherwise have returned an acquittal. Id. at 413, 415-18. In that context, the Court warned that we should not speculate about the jury s thought processes, but should instead focus on whether there was enough evidence to convict on the lesser included offense. Id. at 416-17. We need not reach a conclusion here as to whether the "unknown jury reason" aspect of Condon remains good law, because in this case the charging error was so clearly harmless.

7 Intending no insensitivity to Krista DiFrancesco's family, we use her name rather than her initials because she is deceased. We use initials to protect the identities of those victims who survived defendant's attacks.

8Defendant's appendix improperly included Sperry's entire series of investigative reports. While some of the reports were used to cross-examine Sperry, our review of the transcripts of both the Miranda hearing and the trial reveals that none of the documents were introduced in evidence at either proceeding. Therefore, the documents are not part of the appellate record. They should not have been included in the appendix, and they cannot be considered on this appeal. See R. 2:5-4, -5; State v. Golotta, 178 N.J. 205, 211-12 (2003).

9 In DNA science, "scientific certainty" is a term of art, unrelated to the legal term used to qualify expert opinions.