*1
Argued July October 1991—Decided 1992. *9 Defender, Smith, Jr., Deputy and Claudia K. Public James II, argued the cause for Deputy Defender Wyk, Public Van Caraballo, Defender, attorney; (Wilfredo appellant Public *10 Jr., Smith, Astore, Wyk, K. and James Claudia Van Matthew II, briefs). Deputy Public Defender on the Prosecutor, Stalford, argued P. Assistant Mark the cause for Prosecutor, Kaye, {John respondent County Monmouth attor- ney). Foddai, General, Deputy Attorney argued A.
Catherine curiae, for Attorney Jersey cause amicus General of New General, (.Robert Tufo, Attorney attorney). J. Del opinion The of the Court was delivered STEIN, J. 123, (1988) Bey, II),
In State v.
112
A.2d
(Bey
N.J.
548
887
Bey’s
we affirmed Marko
conviction for the
murder
Carol
Peniston but reversed the death sentence and remanded the
sentencing
proceeding.
case
a new
A
second
returned
Court,
appeals
right
a death sentence. Defendant
as of
this
2C:ll-3e, challenging
original
N.J.S.A.
conviction on Ger-
grounds,
Gerald,
40,
ald
see
State
I. The relevant of Ms. excerpted facts Peniston’s murder are II, Bey 131-33, supra, from N.J. at A.2d 887: High On around 9:20 April 26,1983, Carol Peniston left p.m., Neptune School, she where had attended a course, drove in her computer Ford away living Ms. who Granada. was divorced and Peniston, alone, neither returned to her nor to work the next apartment reported day. ’I'******* investigation revealed that Subsequent car had [Ms. Peniston’s] been involved * * * in a one-car collision in Newark on 26, 1983, four April approximately High finger- hours after Ms. left Peniston School. The Neptune were on the rear view mirror.
prints At 3:30 on Park p.m. interviewed Attilio approximately May Asbury police building who had Robot, found Peniston’s near an Ms. old industrial pocketbook Park. discovered in Asbury thereafter, her a shed Shortly police body following day, May building. autopsy performed the An near .disclosed days. autopsy further Ms. had been dead for several Peniston assaulted, beaten, strangled. sexually From a disclosed that she had been imprint and hemor- chest and from evidence of fractured ribs sneaker on her heart, column, lung, right rhaging right Dr. atrium the vertebral examiner, Becker, County Stanley medical concluded Ms. the Monmouth stomped Dr. Becker determined that assailant had on her chest. Peniston’s death, however, strangulation. Subsequent ligature cause of ultimate spermatozoa investigation police found on the that characteristics of revealed saliva, and that defen- with those of defendant’s victim’s coat were consistent impression, imprint on that was similar to dant’s sneakers made an chest. victim’s
[********] receiving property, May Ms. Peni- arrested for stolen defendant was [On police custody, confessed defendant Ford After five hours ston’s Granada. to the murder.] [********] *11 statement, gave Ms. in he admitted that he accosted a written which He then money apartment building from her. her and demanded Peniston front of coming, grabbed her he heard someone he statement continued that when
The events, ensuing repeatedly struck Ms. shed. In the he and led her to the keys her, Peniston, eight sexually as well as the car assaulted and took dollars car, way with pocketbook. to Newark in her he collided her While on his from alongside graveyard, and abandoned the car. an iron fence a trial, capital jury convicted him of In initial defen- penalty-phase, jury the same sentenced murder. In the death, aggravating proffered factors finding both dant to —that mind, torture, or an depravity of murder had “involved 2C:ll-3c(4)(c) victim,” aggravated assault to the N.J.S.A. in the (“c(4)(c)”), had been committed and that the murder 2C:ll-3c(4)(g) (“c(4)(g)”) find- felony, of a N.J.S.A. course —and affirmed, defendant’s This Court ing mitigating factors. no court largely because the the sentence conviction but reversed finding mitigating of charged jury on the incorrectly had 156-72, 887. We II, at 548 A.2d Bey supra, N.J. factors. resentencing. for remanded II, Bey it also this Court decided day the same
On
for the mur-
and death sentence
defendant’s conviction
vacated
45,
Bey, 112
548 A.2d
Cheryl Alston.
der of
State
death-
I). There,
defendant was not
(1988)
we held that
(Bey
eligible
age
because he had committed murder
before the
of
51-52,
eighteen.
Id.
In June the Law Division considered and resolved a pretrial number of regarding resentencing motions the Peniston proceeding. The court denied defendant’s motion to dismiss the petit panel under-representation unconstitutional granted blacks but it inspect copy defendant’s motion to all possession records County of the Monmouth Clerk jurors and to communicate with to determine their The race. prejudice court denied change without defendant’s motion for granted venue. court also defendant’s motion to strike c(4)(c)aggravating factor but denied defendant’s motion to *12 prior-murder dismiss aggravating the factor. days.
Voir dire lasted six jurors Fourteen were selected to case, designated hear the of two whom were as alternates immediately prior dire, During to deliberations. voir the questioned potential jurors court about whether their knowl- edge already that defendant prior had been a sentenced for imprisonment murder to life with forty-year parole-ineligibili- a ty period would affect their impartiality. days. sought resentencing The State trial lasted seven factors, had commit- aggravating that defendant prove
to two murder, c(4)(a), had occurred prior and that the murder ted a c(4)(g). The robbery, and during the course of sexual assault argued that aggravating factors but did not contest the defense (1) mitigating “defen- outweighed by four factors: they were of or emotional under the influence extreme mental dant was (2) disturbance,” 2C:ll-3c(5)(a) (“c(5)(a)”); defendant’s N.J.S.A. 2C:ll-3c(5)(c) (“c(5)(c)” murder, age at the time of the N.J.S.A. factor”); (3) capacity appre- mitigating “age or “defendant’s his or to conform his conduct wrongfulness ciate the of conduct significantly impaired as the requirements of the the law was intoxication,” of mental disease or defect N.J.S.A. result (4) 2C:ll-3c(5)(d) (“c(5)(d)”); “[a]ny other factor which character or record or the circum- to the defendant’s relevant 2C:ll-3c(5)(h) (“c(5)(h)” or offense,” N.J.S.A. stances factor”). “catch-all murder, Stanley Dr. prior the State called prove
To the the Becker, County pathologist, described who Monmouth strangulation, and detailed asphyxia due to cause of death as Phillip Investigator Ms. inflicted on Alston. wounds of the victim when found George appearance described the the crime scene. He also presence two-by-four a Cheryl reported subsequently identified as that victim was Alston, years old at time she was nineteen Dowling had that a Investigator testified Michael death. Alston, murdering Ms. and the State had convicted defendant certificate into evidence. Ms. Alston’s death introduced during occurred Peniston murder had To establish produced evidence indicat- felony, the State the commission of assaulted and robbed ing sexually defendant had raincoat, scarf her raincoat belt and her semen-stained victim: dress, neck), (both from her buttons her found tied around photograph depicting clothing, a articles of crime-scene other found, rear-view mirror from and the the victim when Investigator containing fingerprints. victim’s car *13 Dowling significance testified about the of those items and investigation described his of the murder. addition,
In pathologist, Becker, the State’s Dr. testified that Ms. Peniston strangled had been from behind and sexually- assaulted. He graphically injuries described the brutal inflicted on the victim’s Investigator face and chest. George read to the jury defendant’s station-house robbery confession of rape. Jersey scientist, A New Swordsma, State Police forensic Henry sperm testified that the stain found on Ms. Peniston’s raincoat was consistent with defendant’s whole sample. Finally, blood the State moved Ms. Peniston’s death certificate into evidence. support mitigating factors, of the presented defense concerning evidence upbringing defendant's through the testi- mony of four (Patricia witnesses: defendant’s mother Bey), El), (Clarence aunt (Gwendolyn Horton), uncle family and a (Juliet El). friend pertinent We summarize aspects background. Defendant was the second of Patricia Bey’s alcoholic, four children. An BeyMs. drank heavily while pregnant with defendant. Six months after defendant was born, his father Bey threw Ms. and her children out of his apartment seeing because she was another man. Bey Ms. sister, moved with her and soon family moved her to another apartment down the street. years, Over the next Bey few Ms. had two more sons and frequently. moved
Defense witnesses testified Bey neglected that Ms. had abused her children. kept lights She apartment, off in the and covered the windows and mirrors out of an alcohol-induced paranoia get that the devil would her. Several witnesses de- cold, dark, scribed the slovenly state Beys’ apartments unkempt and the condition of the children. began Defendant drinking age at began nine and he using drugs, particularly marijuana, age eleven.
Growing up, frequently severe, defendant received unpre- beatings dictable handles, belts, with broom buckles, belt *14 on one occasion Bey testified that items. Ms. and other straps, head on a down, causing him to hit his knocked defendant she Although defendant’s and lose consciousness. coffee table BeyMs. him to a doctor. gashed, she did not take head was had threatened neighbors time when her also recalled another beating Gwen- stop defendant. police if she did not to call the singled out defendant Bey had El surmised that Ms. dolyn her. She spurned had beatings his father because these brutal anger against defendant’s crimes to ascribed defendant’s also women, it not kill those two “mentally Marko did his mother: killing.” his mother that he was experts, the defense of three medical Through testimony murder, defendant was time of the sought prove that at the (c(5)(a)) disturbance mental or emotional undergoing an extreme impaired by significantly capacity was and that his moral (c(5)(d)). All defense ex- three and intoxication mental defect organic psychiatric condition defendant’s perts attributed neuropsychologist, Gary Kay, a clinical damage. Dr. brain over on defendant several tests that he had conducted testified performance Based on defendant’s period of nine hours. a * * * long- mild tests, possibility of Kay Dr. found “the those region.” He left frontal damage localized in the standing brain alcohol, exposure to in útero theorized that defendant’s then alcohol, drugs consumption and preadolescent defendant’s (the against the early injuries head blow two and defendant’s inter- accident) seriously could have bicycle a table and coffee described that development. He his fered with frontal-lobe. structural rather than a abnor- dysfunction impairment as brain and explain violence partly mality, would which that defendant’s Kay Dr. noted responses. intense emotional irritability swings, suspiciousness, and extremes mood damage. diagnosis of brain rage supported the his three- psychiatrist, described Young, forensic Dr. John Young concluded defendant. Dr. hour examination organic defendant suffered personality syndrome1 from causes: defendant’s in útero pointed possible to several expo- alcohol, childhood, sure to preadolescent drug abused and alco- use, early injuries, hol presence, head lack of a fatherly and the Bey conditions in the Young household. Dr. found that defen- swings, dant’s mood rage, impaired judg- outbursts of social ment, indifference, apathy or suspiciousness paranoia were findings. consistent with his He concluded that defen- dant’s murder of Ms. Peniston triggered by had been a stimulus that had caused him to Young lose control. Dr. also testified that defendant had helped by been medication and the struc- prison. tured environment of
Finally, Pincus, neurologist, Dr. Jonathan a testified in a similar fashion. Dr. juvenile Pincus discussed his studies of delinquents, which had indicated neurologi- that child abuse and dysfunction cal causatively are linked to violent behavior. Dr. suggested Bey’s Pincus unpredictable Ms. abuse of defen- likely dant a paranoia. addition, cause of his he found evidence neurological impairment of based on defendant’s back- ground exposure, of alcohol drug abuse, alcohol and early head trauma, palsied hand-movements. Dr. rejected Pincus also diagnosis disorder,2 a of personality antisocial arguing that that Psychiatric organic 1 The personality syndrome American Association defines as follows: syndrome The persistent personality essential feature of this is a distur- * * * specific organic bance instability, that is due to a factor. Affective aggression rage, markedly impaired recurrent outbursts of judg- or social ment, indifference, apathy suspiciousness marked paranoid or ideation are common. person' may belligerent temper The grossly be or have outbursts that are proportion any precipitating psychosocial out of to stressors. Ass'n, Psychiatric Diagnostic [American and Statistical Manual Mental (DSM-III-R) (3d 1987).] Disorders ed. revised Psychiatric 2 The personality American Association defines anti-social disor der as follows:' diagnosis scriptor of antisocial behavior “is a mere [and] of it.” Dr. Pincus and say anything doesn’t about the cause during with Young Dr. both testified that their interviews defendant, displayed he had remorse for his crimes.
Through experts, cross-examination of defendant’s medical sought support theory to its that defendant suffered the State merely personality any than from antisocial disorder rather dysfunction presented organic of the brain. State also Michals, psychiatrist, testimony Timothy of Dr. a who rebuttal personality antisocial disorder did concluded that defendant’s wrongfulness appreciate the of his ability not affect his Rather, his law. he conduct or to conform conduct personality a con that defendant’s disorder reflected testified rules. He noted that society’s choice to break also scious prison diagJ improved behavior contradicted Moreover, personality syndrome. Dr. organic Michals nosis following had not lost pointed to the evidence that defendant removed at the time of the murder: defendant control glasses spot, her to hinder identi victim a secluded removed fication, forty and afterwards stole her car and drove minutes explained He that defendant’s show re to Newark. also merely reflected fear of a death sentence. morse testimony Finally, attempt in an to counter the defense’s supervisor Bey’s Neptune lighting, had lacked Ms. residence *16 pattern irresponsible this is a The essential feature of disorder early beginning in adolescence and con- antisocial behavior childhood or tinuing into adulthood. people home, acts Finally, they generally aggressive on People Lying, [DSM-III-R, supra, others; they may * * fail to conform stealing, truancy, *. with Antisocial and to physical get even cruelty at repeatedly have to social norms and [********] 342.] feel Personality vandalism, no remorse about the effects of their behavior justified are into typical initiating fights, running Disorder tend physical fights having childhood repeatedly hurt mistreated signs. and assaults perform be irritable and * * * away antisocial others. * * These from *. Jersey Light Central Power power & testified that the had been only shut off once between 1978 and 1983.
The deliberated for approximately three They hours. presence found the aggravating of both beyond factors a rea- Only sonable jurors doubt. two found extreme mental or disturbance, c(5)(a). emotional jurors None of the found the age factor, c(5)(c), mitigating significant or the impairment of faculties, e(5)(d). moral factor, c(5)(h). Six found the catch-all jury unanimously beyond found a reasonable doubt that aggravating outweighed factors mitigating factors that had been found. polling jury, After the court sentenced defendant to death.
II.
Guilt-Phase Issues
A. Death-Eligibility under Gerald
argues
Defendant
that his murder conviction does not estab
Gerald,
lish death-eligibility under
supra,
40,
113 N.J.
549 A. 2d
case,
792. In that
II,
decided two months
Bey
after
we held
that defendants cannot
subjected
be
to the death penalty for
murder if they were convicted of purposely or knowingly caus
ing
bodily injury
serious
resulting
(SBI
murder).
death
Id.
69-90,
113 N.J. at
requires
A. 2d 792.
juries
Gerald
clearly distinguish
(defendant
capital
between
murder
intended
death)
(defendant
and non-capital murder
intended serious bodi
ly injury).
pre-Gerald cases,
when the
returned a death
sentence
being
without
instructed on the distinction between
capital
murder,
murder and SBI
this Court must examine the
record to ensure that the sentence is not based on a conviction
for SBI murder.
If the evidence in such cases could have
supported convictions
capital
for either
murder,
murder or SBI
then the defendant’s conviction is reversible error and the death
sentence must be vacated.
Erazo,
112,
See State v.
126 N.J.
126-28,
(1991);
594 A .2d
Dixon,
State v.
251-
(1991);
577 407, (1991); 121 484-86, Harvey, 864 v. N.J. 585 A .2d State — -, denied, 111 (1990), 412-14, 483 cert. U.S. 581 A.2d Clausell, 1336, (1991); v. 121 N.J. 268 113 L.Ed.2d State S.Ct. 298, 313-16, (1990); Pennington, 119 N.J. .2d221 v. 580 A State 547, 560-65, (1990); 119 Long, A .2d816 N.J. 575 State 194, 208- 460-65, (1990); Coyle, 119 A .2d435 State v. N.J. 575 69-92, (1990); Gerald, at supra, A .2d951 N.J. issue, “not deciding In this Court is the Gerald A.2d 792. determining but rather whether second-guessing” jury verdicts might to conclude that defendant jury had rational basis Dixon, bodily only injury. intended to cause serious have .2d If such a basis supra, 125 593 A 266. rational given, exists, but, fact, charge no then despite that Gerald death sentence must be overturned. the defendant’s case, specifically jury In this the court instructed if capital it found guilty of murder that it could find defendant in injuries that resulted bodily serious that he intended to inflict knowing defining purposeful or After murder as the death. death, resulting bodily injury in cause or serious intent to death explained: the court could a witness or witnesses who It for the State to produce is not necessary his cause was to the defendant stated, purpose example,
testify death, bodily resulting injury in or serious he knew that or that death doing kill or was certain he was would Carol Penniston [sic] practically what injury resulting bodily death. serious or her death cause added.] [Emphasis by. contrast, interrogatory only to “murder
By jury referred Peniston,” causing knowingly purposely the death Carol Nonetheless, mentioning serious-bodily-injury murder. without need for a phrasing did not interrogatory’s obviate differentiating capital murder and clearly instruction between con- jury could have To determine whether the SBI murder. murder, capital we must examine the only of victed defendant jury. presented evidence cases, Gerald, did noted that in some which we murder, capital murder and SBI clearly distinguish between *18 might inescapable
the
lead to
evidence
the
conclusion that the
Gerald, supra,
defendant intended the death of
victim.
113
79-80,
Ramseur,
(citing
At heard oral and written confes- sions, testimony as well as his about crime. Defendant’s oral confession read was into the record: * * * bugged just bugged just I I robbed she saw face lady, out, I my out, going through her went into her coat I turned around and purse, pocket, she looking at me.
[********] hitting looking I started I asked “What are at?” her, She fell. She wasn't you moving. descrip- following provided confession written Defendant’s crime: tion of the hitting looking got I and started at me. scared I
I she was turned around and anything. making moving or I sound She wasn’t any her. She fell down. and left. had sex her with cross-examination, defendant examination and On direct both cross-examination, of the crime. On accounts offered similar her prevent that he had killed the victim denied defendant identifying him: from hitting after I I her, Now, that’s when started face, okay? she seen
[W]hen my something just hitting have went too that shouldn’t far, it went on her, started on. *19 striking the victim consistently admitted Although defendant her or her, strangling he not recount either raping did and Nonetheless, defendant identified chest. stomping on her strangled he Ms. Peniston: had belt with which belt, recall the don’t you? You Q.
A. Yes. strangle Mrs. Peniston? belt used to you Q. A. Yes. examiner, Becker, trial, Dr. medical guilt-phase At the by asphyxia had been caused victim’s death testified that the or raincoat scarf strangulation with victim’s ligature to due damaged the that had blunt trauma He detailed the belt. cerebral face, plate, and caused fractured her dental victim’s the “force Moreover, Dr. Becker described hemorrhaging. strong sufficiently only not applied to the chest wall was [that] the heart compress portion a the ribs but also to fracture right hemorrhage posterior in the wall to cause the the sneaker atrium,” consistent with found that blow photo- a jury was shown chest. The imprint on the victim’s Thus, jury heard and imprint. depicting that sneaker graph brutalized and defendant had graphic evidence that the viewed strangled the victim. as form of violence commonly a understood
Strangulation
ordinarily
victim,
kill
and hence would
likely
designed and
only to inflict serious
purpose was
one
used
whose
not be
bodily injury.
128, 184,
Perry,
State v.
See
590 A.2d
(1991)
J.,
(Stein,
concurring
part
dissenting
in
part).
Breakiron,
591, 605-06,
But
State v.
108 N.J.
532 A
.2d
cf.
(1987)(questioning whether defendant who asserted defense of
capacity
by strangulation
diminished
to murder
intended death
Here,
practically
occur).
or was
certain death would
Dr. Beck
testimony
ligature
er’s
strangulation
confirmed that
was the
Strangulation
cause of Ms.
especially
Peniston’s death.
is an
killing
requires
brutal means of
it
the murderer to
because
gradual
However,
the victim’s
witness
death throes.
defendant
only strangled
behind,
not
from
victim
he also smashed her
enough
plate
face hard
to break her dental
and cause cerebral
hemorrhaging,
stomped
he
enough
on her
with
chest
force
ribs, damage
to crush her
her heart and inscribe his sneaker
Moreover,
on
confession,
sole
her chest.
in his written
defen
raping
dant admitted
the victim
moving
after “she
wasn’t
making any
anything.”
sound or
Defendant
then left
in the
victim
employs
abandoned shed. When a defendant
against
various means of
victim,
violence
the same
need
we
on
actually
focus
which
causing
method
succeeded
death.
Rather,
actions,
whole,
we find that defendant’s
taken as a
were so wantonly brutal that he could have
only
intended
death,
cause
or knew that death
practically
certain to
Pitts, supra,
617-18,
occur. See
B. Harmless that this Court’s standard Defendant contends further defendants of their constitu deprives for issues review Gerald right jury determine all the issues to have tional beyond a reasonable doubt. proof and to convicted on crime be he tried that specifically, defendant contends because More present to Gerald, opportunity did not have an he before bodily only commit serious had intended to evidence that he argument prior that in our implicitly rejected injury. We have 590-91, supra, 120 McDougald, decisions. See Gerald J., concurring dissenting (Handler, part and A. 2d 419 assessing scrupulously issue we examine part). Gerald at trial see whether the evidence that was adduced finding that the defendant could have a rational had basis bodily of review is only injury. That standard intended serious any of whether sufficiently to allow consideration tolerant permitted jury rationally conclude could have evidence injury only bodily serious but intended that defendant this record is that the evidence Our view of death. death or knew that death was to cause defendant intended compelling as to exclude the to occur is so practically certain culpable less state of mind. possessed he possibility that capital for the Accordingly, affirm defendant’s conviction we Peniston. of Ms. murder Capital Murder The Rea Element Mens
C.
capital murder
as
argues
statute
Defendant
not guaran
it does
is still defective because
limited Gerald
agree
the defen
unanimously
on whether
jurors
that the
tee
knowingly
purpose
or
it
murder
committed
committed the
dant
unanimity
Supreme
on
Court' has held
ly.
required when “two
an
is not
rea element of
offense
mens
* *
*
satisfy
equivalent means
supposed to be
states
mental
* *
*
reasonably
single
of a
offense
mens rea element
culpability.”
equivalent blameworthiness
reflect notions of
—
2491, 2503, 115
U.S.-,-,
Arizona,
111 S.Ct.
Schad
*21
(1991).
knowing
L.Ed. 2d
pur
We treat
murder and
poseful
equivalent expressions
as
murder
of moral culpability.
Gerald, supra,
In
society’s
we held: “Our
ultimate sanction—
penalty
the death
properly imposed on those
act with
who
—is
mind,
culpable
the most
of
namely,
state
the purpose or knowl
edge
that their victims will die.”
III. Sentencing-Phase Issues Composition A. Racial Jury of the Petit Panel argues deprived Defendant trial court him of his rights equal protection constitutional jury composed and to a of a fair community. cross-section Before the resentenc ing proceeding began, challenge defense counsel moved composition petit jury panels racial in County. Monmouth In motion, support of the the defense submitted six affidavits County from public Monmouth stating defenders repre that the petit sentation jury panels of blacks on county were far proportion (7.91 below their population percent age-eligible population 1980). The defense presented also certifications, three two of which alleged concerned under- representation Biegenwald’s of blacks in Richard January 1989 death-penalty resentencing. public the third certification defender stated that at defendant’s second trial for the Alston murder, only sixty-two two of the prospective jurors were black. trial court denied motion an evidentiary hearing, concluding that the defense had failed to make out a prima showing of However, discrimination. the court facie granted requests defense inspect copy all jury records potential jurors to communicate lists, with the on open possibility and also left hearing of a future if the
583
showing.
jury
At the start of
prima
made out a
defense
facie
selection,
Al-
prospective jurors were black.
seven of the 101
diligently to
though
its intention to
the defense stated
“work[ ]
case,”
its
if
is a
it never renewed motion
prima
see
there
facie
evidentiary hearing.
an
in denying
did not err
We conclude that the trial court
Ramseur,
hearing. As
noted in
evidentiary
defendant an
we
right
no
to a
includes
supra, “a defendant has
216,
A. 2d 188
members of
own
able statistical data. See 177 818, 107, 114, 936, (1988)(testimony 127 Ill.Dec. 532 943 N.E.2d attorneys personal experiences and affidavits of based on “methodologically adequate” observations were not valid or case), denied, so did prima appeal not establish a 125 facie 568, 812, denied, 130 Ill.2d Ill.Dec. 537 N.E.2d cert. (1989). Although U.S. S.Ct. L.Ed.2d any issue, defense counsel disclaimed intention to abandon expert completed study had his in time for the present defense additional substantiating evidence its claims *23 support or to evidentiary hearing prior renewed motion for an Thus, reject argument to trial. we he made prima out a evidentiary case sufficient to warrant an facie hearing on the issue. Peremptory Challenge B. of a Juror Black argues prosecutor’s Defendant the peremptory challenge only qualified juror the black for service his violated right impartial a fair equal protection. During dire black venirepersons voir seven questioned were only and six were for remaining excused cause. The black stated, juror response question, in to a defense that the death penalty resort,” should be as a very used “last or in “a rare He expressed situation.” also that he view had “not seen many too situations I penalty where felt that the death would an appropriate prosecutor be gave measure.” the follow- ing in exercising rationale a peremptory challenge against that * * * juror: regards “he imposition indicated as capital punishment, be, opinion, that it only would his last resort, very in a rare situation.” prosecutor
A is forbidden exercising from perempto ry challenges potential jurors petit excuse on the basis of race under both the United Jersey States and New constitu 79, 1712, tions. Kentucky, See Batson v. 476 106 U.S. S.Ct. 90 (1986); Watkins, 259, L.Ed.2d 69 114 State v. N.J. 553 A.2d (1989). 1344 The defense can presumption rebut the that the prosecution properly peremptory challenges exercised its by a
585 jurors wholly (1) potential showing that: “the prima facie cognizable of a were members disproportionately excluded representative cross-section meaning of the group within likelihood” exists that rule”; (2) that a “substantial by “group bias.” State challenges motivated were peremptory (1986). 535-36, A .2d 1150 Gilmore, 511 103 N.J. prima made out a has assessing whether a defendant facie factors, including whether examine five showing, we will the identified members of most or all of the prosecutor struck used a prosecution and whether group from the venire challenges against peremptory of its disproportionate number 1344; .2d Watkins, at 553 A supra, N.J. group. 554-57, (prima .2d419 577 A supra, 120 at McDougald, N.J. see peremptory ten of twelve prosecutor used showing where facie Watkins, supra, jurors); potential challenges to excuse black showing where {prima A.2d 1344 at facie except juror challenged every black peremptorily prosecutor Gilmore, cause); supra, 103 N.J. challenged for one who was prosecu showing where 540-43, (prima A.2d 1150 facie nine seven out of challenges to excuse peremptory tor used requested court to successfully jurors and then potential black cause). good remaining two excuse *24 peremptory case, one prosecutor exercised In this four juror and another potential challenge against a black addition, In jurors who were black. against potential for cause on the juror was excused prospective least one black Thus, that defendant has we find defense counsel. motion of prosecutor showing that prima to make a failed facie unconstitutionally. challenges peremptory his exercised Report C. Dr. Cooke’s refusing to by trial court erred that the
Defendant contends mitigat- prove to report into evidence Dr. Cooke’s admit Gerald Cooke, psychologist, clinical and forensic Dr. ing factors. of the State. at the behest defendant and interviewed tested report Dr. Cooke’s experts, was circulated to all the who testifying. reviewed it before At the close of testimony, de- fense report evidence, counsel moved to enter the Cooke into arguing prosecutor that the report had relied on that in cross- examining experts. the defense’s medical The defense noted that Dr. currently Cooke was testify unavailable to and that they delayed had communicating him in with the belief that the prosecution produced would have Dr. Cooke. The State moved to admit the first pages report, seven of the Dr. wherein Cooke criticized methodology findings and the of the defense experts. The defense report countered that the entire should be included pages because the last report, two of the corrobo- rating experts’ defense account of defendant’s personality de- velopment, provided support evidence in mitigating of the factors. The court report determined that the was inadmissible and also criticized failing the defense subpoena to doctor.
1. The Court’s Report Admit the Cooke Refusal
We first address whether Dr.
report
Cooke’s
should
have been admitted into evidence. Pursuant
Capital
to the
Act,
2C:ll-3c(2)(b),
Punishment
N.J.S.A.
“The
may
defendant
offer,
regard
without
governing
the rules
the admission of
trials,
evidence at criminal
reliable
any
evidence relevant to
the mitigating
Indisputably,
factors.”
report’s
descriptions
of the defendant’s anti-social personality
up
disorder and his
bringing
c(5)(a),
were relevant to mitigating
c(5)(d)
factors
c(5)(h).
report’s
reliability is
attested to
the fact that
initially procured
State
report,
relied on
report
cross-examining
experts,
two defense
objection
raised no
admitting
portion
report
that bolstered its case. See
95, 97,
Green v. Georgia,
2150, 2151,
442 U.S.
99 S.Ct.
(1979)
L.Ed.2d
(“Perhaps
important,
most
the State
considered the [hearsay] testimony sufficiently reliable to use it
against
codefendant].”). Moreover,
experts
two defense
[the
they agreed
stated that
part
with Dr.
report.
Cooke’s
Long, supra,
119 N.J. at
upheld
A. 2d
we
the trial
*25
defendant
written on behalf
of letters
court’s exclusion
by the
subject to cross-examination
they
were
because
however,
the fact that
ruling,
to that
Crucial
State.
them
available,
indeed thirteen of
and that
were
letter-writers
contrast,
unavailable
Here,
Dr. Cooke was
testified.
had
than attesta
more reliable
report can be deemed
testify and his
defen
held that “when
We have
good
[the]
character.
tions of
factor,
concern
mitigating
any doubts
a
evidence of
dant offers
of the defendant.”
resolved
favor
admissibility must be
ing
(1990) (on
594, 638,
.2d 455
577 A
120 N.J.
Savage,
v.
State
relevant);
if found
admissible
hearsay would be
remand double
(1984).
611, 620,
level larger context of it in the report place and the Cooke presented The defense trial. presented at medical evidence neuropsycholo clinical Gary Kay, a Dr. expert witnesses: three Dr. and Jonathan psychiatrist; Young, a forensic gist; Dr. John Kay testing, Dr. on nine hours Pincus, neurologist. Based longstanding minimal from suffered that defendant concluded region, the area of damage left frontal-lobe in his brain Pincus Young and Dr. Both Dr. aggression. controls brain that three hours separate occasions on the defendant examined syn organic personality suffering from diagnosed him as and damage. resulting from brain drome, disorder an affective (MRI) scans Imaging and CAT Magnetic Resonance Although damage, of brain physical manifestations any not uncover did neurological psychiatric on various doctors relied all three conclusions. support their tests to damage several brain experts ascribed
Those (1) alcohol- Bey’s Ms. causes: psychological physiological severe, frequent, (2) Bey’s Ms. pregnancy; during her ism early inju- head defendant; (3) defendant’s beatings of random *26 beatings bicycle ries from one of his mother’s and from a accident; (4) escalating usage alcohol and defendant’s from the age drug (primarily of nine and his later use marijua- onwards na). All damage three doctors testified that defendant’s brain condition, drug psychological along his alcohol and and with abuse, him prevented controlling impulses. from his violent rebuttal, Timothy Michals,
In psychiatrist, Dr. a forensic for the State that defendant suffered from antisocial testified personality organic personality syndrome. rather than disorder Dr. personality Michals contended disorder did required prove mitigating c(5)(a) not meet the criteria factors (“extreme disturbance”) c(5)(d) or (signifi- mental emotional impairment cant of moral faculties as result of mental intoxication). emphasized disease or defect or Michals Dr. any lack of scientific conclusive evidence that defendant is brain-damaged. Cooke,
Dr. first pages report, presents seven of his a systematic of the experts’ methodology refutation defense and findings. diagnosed having Dr. as personal- Cooke defendant ity features, disorder antisocial and rejected with also Dr. Young’s finding drug that defendant’s and alcohol use was mitigating c(5)(d). sufficient to meet factor The pages last two report of the summarize the main features of defendant’s (his history upbringing use) drug abusive and and alcohol and present explanation then an for defendant’s criminal behavior: frightened, As a anxious, he was and child, insecure, due to helpless, depressed, neglect got and combination of from his mother. As he and cruelty older, * * * under in his dissocial influences his defensive structures milieu, developed encouraged anger into a disorder which also personality expression neglect he felt due to the and became masked cruelty. anxiety-depression emerge greatest and tends under of stress. For him one of only periods being stresses is not in control of a situation. Control to him so he important * * * does not what his mother made him feel as a child. He has re-experience rage rage a tremendous toward women it is this and, is the my opinion, aggression, demeaning, reason for his brutal sexual attacks toward his aggression victims. The level was not to the certainly necessary purpose identifying wanted to Even if he kill them to them from robbery. prevent aggression him to the the level of police, brutality unnecessary. my the reason for that behavior is that it allows him to opinion, have control and anger dominance, he felt toward his mother. express [********] [Ajlmost all of the he has tried to and also rob, has persons physically attacked, have been women with one and, all of them have exception [Cheryl Alston], enough been old to have been his mother. The combination of literally his regarding and the evidence the brutal and sexual
personality dynamics physical assault on Ms. Peniston do indicate that at some he lost control and acted point rage. in a argument Court, At oral before this the Public Defender *27 contended report provided mitigating that Dr. Cooke’s better any experts evidence than of the three defense it because explicitly linked defendant’s abused childhood and hatred of particular addition, report women this crime. Dr. Cooke’s partly theory countered the State’s the defendant had simply being murdered Ms. Peniston to avoid identified. How- ever, importance the defense overstates of Dr. Cooke’s report. already Dr. Pincus had testified that defendant’s' abused childhood and his view of women contributed to his violent behavior: I think have a there who was also has a model of behavior you person abused, striking savagely angry angry out when and also is himself because you’re of the he was treated his women, mother. way by by
Although suggested Dr. Cooke that defendant lost control at murder, diagnosed the time of the he suffering defendant as antisocial, personality paranoid, from mixed disorder with and explosive page report, features. In the last of his Dr. Cooke following made the observations: Regarding mitigating following factors raised the other doctors, by be said. The field has defined what is meant never “extreme mental or may emotional disturbance.” There are two definitions. In the broad defini- really diagnoses
tion listed in the DSM-III-R would be considered to be many severe mental or emotional disturbance and this would include the personality disorders. what is more used is a narrower definition. However, commonly Under the narrower those which definition, disorders, would, only independent criminal some sort of treatment behavior, either any require intervention, would be disorders outpatient in-patient, Generally, personality included.. do not fit under that definition. agree Young drug I also would not with Dr. that the and alcohol use was wrongfulness sufficient to his of his behavior or impair ability appreciate Bey’s Both Mr. behavior of law. his behavior to the requirements
to conform now, clearly he indicates that on interview time and his discussion at the wrong. doing he was was criminal knew that what added.] [Emphasis expert’s defense find-
Thus, explicitly rejected the Dr. Cooke c(5)(d). c(5)(a) Aside from its mitigating ings of factors development, Dr. personality Cooke’s of defendant’s discussion defense—a fact that provided support little for the report subpoena Dr. Cooke by defendant’s failure underscored trial. trial, testimony Dr. medical in the context of the
Viewed evidence of compelling but report Cooke’s offered cumulative fairly, background personality disorder. Read defendant’s descrip experts’ defense report corroborates the Dr. Cooke’s rejects the relevance of personality but tion of defendant’s establishing mitigating factors. personality for report might accorded Dr. Cooke’s Concededly, have testimony it weight experts’ defense because greater than the Skipper v. Car procured by the State. See South had been (1986) olina, 90 L.Ed.2d 1, 8, 1669, 1673, 106 S.Ct. U.S. * * * (“The witnesses would testimony of more disinterested weight by jury.”); naturally given greater much quite be State, 1385, 1386-87 (Okla.Crim.App.1988) Brennan v. 766 P.2d improperly excluded (reversing sentence where court death *28 doctor, “may per state-employed who have been letter from However, expert). the objective” more than defense ceived as questionable report’s exclusion significance of the Cooke factually consistent with the defense ex as it was inasmuch Moreover, personality. Dr. pert’s description of defendant’s only of report not the “disinterested” evidence Cooke’s expert, Dr. childhood. The State’s own defendant’s troubled begun Michals, testified, briefly, the defendant had albeit that using drugs age drinking age begun nine had at eleven. had to the fact that defendant been beaten He also referred Thus, about defendant’s his mother. the heard evidence development prosecu from psychological both background and and defense witnesses. tion on report provides
Based our that determination Dr. Cooke’s only cumulative of psychological evidence defendant’s back- ground and directly the testimony refutes of defendant’s ex- concerning factors, perts mitigating we conclude that the trial improper court’s of report “capa- exclusion Dr. Cooke’s was not producing unjust ble of an result.” R. 2:10-2.
2. Use Report the in Cross-Examination of argues Defendant the trial court violated due process by refusing to allow defense counsel to use the Cooke report cross-examine State’s rebuttal witness even though prosecutor previously had used it to cross-examine experts. expert defense trial the Before State’s and three experts report, defense reviewed Dr. Cooke’s which was written reports their prepared. prosecutor after had been used the report during Cooke first his Kay. cross-examination Dr. establishing After that defendant on scored better one of the Neuropsychological Battery Eeitan he subtests when was re Cooke, by Dr. prosecutor quoted report’s tested conclu improvement such weighed against finding sion that of organ impairment. addition, ic prosecutor brain stated that * * * opinion type drugs “Dr. Cooke is of the that the used time is organic syndrome and the insufficient to cause brain redirect, this case.” On Kay defense had Dr. read to report’s pages, himself the detailing per last two sonality development, agreed then him asked if he with portion report. Kay Dr. stated Dr. Cooke’s Later, Young, conclusions seemed “reasonable.” Dr. on direct examination, began discussing Dr. hypothesis Cooke’s that de anger prompted fendant’s toward his mother had his attacks on prosecutor objected, older women. The and the court sustained objection. witness, Michals, The State’s rebuttal Dr. re briefly report. ferred on direct Cooke’s examination Dr. sought question Defense counsel on cross-examination him report: the Cooke about *29 Dr. and his that report familiar with Cooke’s conclusion You’re Q. Okay. identifying from him the to kill to the victims prevent even if Defendant wanted aggression and unnecessary. the was brutality level police, the. object. going to I’m [PROSECUTOR]: THE COURT: Sustained. he He said he’s read all that he said relied It’s a upon. [DEFENSE]: report
of this material. Judge, said he reviewed it. I he did not it. He upon rely [PROSECUTOR]: object. and this he’s read he's reviewed is all He’s indicated whatever [DEFENSE]: of his opinion. part THE COURT: your question. Rephrase BY [DEFENSE]: Are familiar with that? Q. you Dr. Yes. was done before Cooke’s A. My report. report objection the circumstances. I continue the under [PROSECUTOR]: THE read it after COURT: He report completed. Objection sustained. BY [DEFENSE]: agree, crimes, from Would that what know about Doctor, Q. you you aggression, goes to eliminate a what’s beyond necessary level brutality witness? question Thus, case, rephrase had to in this the defense excluding any report. to Dr. Cooke’s reference only portions those argues
The defense that the court allowed disagreed experts the defense report of Dr. Cooke’s with However, defense presented jury. to the never to be report during objected prosecutor’s to the use of Dr. Cooke’s Kay. objected, If had of Dr. the defense the cross-examination completing claiming Kay report read the Cooke after Dr. question- report, permitted had still his own and the court ing, defendant’s would be more difficult resolve. contentions rulings report That the trial on the use of the could court’s Nonetheless, at the have more evenhanded evident. been expected testify. court Dr. Cooke to rulings, time of its trial, court and Early prosecutor in the informed the de- to call counsel he not make a decision Dr. fense would Thereupon, testimony. Dr. Pincus’ until he had heard Cooke
593 might the defense announced that it call Dr. Cooke if the prosecutor do failed to so. As a result of a last-minute emer- Dr. gency, appear scheduled, Pincus was unable to as and so became the testify, last witness to at point which Dr. had Cooke assessing become In unavailable. whether defendant dis- advantaged by rulings the trial denying court’s use Dr. of report during cross-examination, Cooke’s specifically note we rephrase that defense counsel was to questions able her order to findings address the report. substantive of the Cooke record, Based on our careful review of the we conclude rulings court’s on use of the Cooke report during cross- prejudice examination did not the defense case. Trial Leading Questions
D. Court’s Refusal to Permit
Ms. Bey Defendant contends that improperly prohibited the trial court asking defense counsel from leading ques- mother examination, tions on direct depriving thus the defense of potential impact emotional testimony. argues of her Defense thereby that the trial court violated defendant’s constitutional rights provision Act, as well as the the Capital Punishment 2C:ll-3c(2)(b), permitting N.J.S.A. reli- any defendant offer mitigating able evidence of factors.
During defense counsel’s Bey, direct examination Ms. prosecutor objections five asserted ques- defense counsel’s ground they leading, tions on were all of which were objections sustained. Three arose out of defense counsel’s attempt to ask beating the witness if she remembered defen- general, dant. did not witness volunteer much detail her about abuse of defendant. 2C:ll-3c(2)(b) provides
N.J.S.A. defendant “[t]he offer, may regard governing without to the rules the admission trials, of evidence at criminal any reliable evidence relevant to Davis, mitigating 619, of the factors.” In supra, 96 477 308, recognized sentencing A. 2d we that “in the phase of a 594 death contest—a defendant
capital proceeding
life or
—a
reliable,
Al
helpful
the use of
information.”
entitled to
all
falls
though
questioning
manner of
witnesses
within
court,
Ferrara, 110
v.
broad discretion
trial
Cestero
264, 273,
N.J.Super.
(App.Div.1970),aff'd,
265
387
57 N.J.
A .2d
if
(1971),leading questions should be allowed
A.2d
responses
yield
their
will
reliable and relevant evidence. See
(1958) (“A
trial
28 N.J.
A .2d
Riley,
State
leading questions
they
when
will
judge has discretion
allow
*31
truth.”),
denied,
best serve to illuminate the
cert.
U.S.
(1959).
79 S.Ct.
Although in court’s determina our view trial Bey unduly disallowing leading questions to Ms. were tions erroneous, clearly entire restrictive and our review rulings record us to conclude that the court’s were leads prosecutor’s prejudicial Notwithstanding the ob to defendant. jections, Bey’s testimony elicit Ms. that she the defense did defendant, heavily kept that she pregnant drank while with dark, so on apartment and that she beat defendant hard that neigh he and on occasion the one occasion blacked out another Thus, Bey hardly police. to call the Ms. can be bors threatened hostile, uncooperative, characterized as an and thus witness. unwillingness Bey’s inability Ms. to remember certain Given defendant, find it details her alcoholism and her abuse of we any could elicited further doubtful that defense counsel have permitted if she had to ask reliable information even been leading Moreover, Bey’s testimony questions. Ms. cumula family family tive: two members and one friend testified Ms. her Bey’s vivid detail about alcoholism and abuse of defen Thus, permit leading dant. find the court’s refusal to we mother, error, although pos questions of defendant’s did not capacity to an result. unjust sess a clear cause Evidentiary Rulings E. Trial Court’s permitted argues Defendant that the court the introduction deprived fair inflammatory evidence that defendant of a II, trial. In Biegenwald supra, evidentiary guide- we set forth capital lines for sentencing retrials: resentencing, Since the retrial is limited to admissible evidence is that only aggravating mitigating relevant to the issue, evidence of factors. namely, guilt Retrial of issues relevant is not only While defendant permitted. may advantage lose original jury whatever inheres in the ‘residual doubts’ that the regarding guilt, have had
may the State also lose whatever may ‘advantage’ inheres in the emotional that often surrounds the initial impact guilt A guilt substantial amount of the phase. evidence admitted in the initially sentencing nevertheless be admissible in the phase retrial of the may proceed- ing, for often issues relevant one are relevant to the other. (citations omitted).] N.J. at [106 A.2d 130 trial, Early in the the defense made a motion in limine to “lurid, any exclude graphic descriptions” of the two murders might prove be offered aggravat- State to the two ing prior murder, factors —the and the commission of the Peni- ston murder in the felony. course of a The trial court ruled that the produce State could showing evidence the “manner and mode” of the Alston murder but that it could not introduce all surrounding Also, circumstances her murder. the court ruled that the State could introduce robbery evidence of during sexual assault prove the Peniston murder aggravat- ing c(4)(g). factor The court also decided to rule on each item *32 proof as it was offered into evidence. support
In prior-murder factor, aggravating Dr. Beck- er, examiner, the medical Cheryl testified that Alston’s death had by asphyxia been caused strangulation. due to He also gave a detailed account of his medical examination of the victim, over the prior objections: defense’s penetrating The face revealed blunt trauma with wounds of the left multiple the nose, the left side of the eye, with fractures of the face, nasal palpable
bones. [********] large There was a laceration of the the center of the head. forehead, * * * Measuring exposing six centimeters two and a half centimeters by
the frontal bone of the skull. also showed a of its socket and out inward, The left eye pushed penetrating it. fractures around wound with encircling abrasions and neck revealed horizontal interior surface of the The in the neck. also posterior anterior surface and partially the entire [********] and clotted blood; hundred cc’s of liquid contained three The abdomen * * * a laceration of the liver
this was due to hemorrhage left at amount of apex There was also a small * * * major of the heart is the chamber which ventricle, abrasions and contusions were the lacerations and face, All the lesions of the and those were the main of the facial bones with fractures of all associated findings. were consistent the victim’s wounds Becker also noted that Dr. had inflicted theory injuries been the State’s with of the crime. two-by-four found at the scene murder, prior aggravating factor of proving In concerning “the manner of may offer evidence the State 2C:11-3c(2)(f), death,” it cannot use such evidence but N.J.S.A. into a second trial of the sentencing proceeding “tum[ ] 950 at Judiciary Statement to S. previous case.” Senate Comm. 29, 1984). Erazo, 594 A.2d (Nov. supra, 126 N.J. prior- autopsy report of a the admission of an we considered multiple wounds and that described the stab murder victim diagram depicting the location of the contained an anatomical autopsy the admission of the Although we held that wounds. error, emphasized the unnec report plain not constitute we did type of evidence: essarily prejudicial nature of that graphic prejudicial death and detailed account of the victim’s effect of a might will of the statute remand, exceed its value. On purposes probative as the manner of death is described if the evidence of [victim’s] be served lungs, heart. wounds to the chest, stab multiple 594 A.2d [Id. 232.] clear, description of the victim’s As makes the fact Erazo its presented terminology in clinical does obviate wounds is Because defendant’s resen- potentially prejudicial effect. Ibid. Erazo, Dr. tencing proceeding prior to our decision occurred condition in more permitted to describe the victim’s Becker was of death. Under necessary than to state manner detail *33 description manner of death should Erazo, Becker’s of the Dr. that death general, specifying no more than more have been strangulation, skull frac- caused a combination had been the liver. hemorrhage, and laceration of cerebral tures with specif- testimony significantly more Although Dr. Becker’s was testimony ic, that the difference between we are satisfied testimony not sufficient to permissible was elicited and the aggravating prior-murder jury’s focus from the divert unjust result. clearly capable producing an factor or proffered by the objects to the evidence Defendant also c(4)(g). again, Here Dr. aggravating factor support State inflicted on Ms. the wounds Becker testified detail about discolora the “marked reddish black He described Peniston. He also maggot infestation.” the skin of the face with tion of her imprint on the victim’s chest and sneaker described the force, ribs, ribs, you need a noting that “to fracture broken testimony points out that such simple step.” Defendant not a uncharged as evidence of an intended to serve may have been torture, factor, c(4)(c), murder “involved that the aggravating mind, On aggravated assault to victim.” depravity of or an testimony essential hand, Becker’s much of the other Dr. of the murder understanding of the circumstances jury’s relied on to relationship the felonies that the State its obligation c(4)(g). The State had the aggravating factor prove beyond that case, adduced went the evidence prove its but Nonetheless, we aggravating factor. required to establish the testimony, when of Dr. Becker’s that the admission conclude trial, seven-day did not have larger in the context placed unjust produce an result. capacity to in intro argues that the court erred also Defendant from the clothing recovered ducing of Ms. Peniston’s articles belt, hose, dress, brassiere, slip, panty pocketbook, crime scene: scarf, raincoat, buttons, and raincoat belt. shoes, loose dress scarf, found around which were The raincoat belt and raincoat, pocketbook and the neck, the semen-stained victim’s *34 598 defendant
constituted relevant evidence that the
committed the
during
rape
robbery.
murder
the course of a
and
The other
irrelevant,
clothing
largely
given
of
especially
articles
were
investigator’s testimony that the
had
victim
been found nude.
Thus,
articles,
the court
have
those
just
should
excluded
as it
eyeglasses,
excluded defendant’s sneakers and
victim’s
bowl,
plastic
grocery bag,
victim-impact-type
and
because
evi
always
jury
“inappropriately
dence
carries
risk that a
will
intertwine
irrelevant emotional considerations
relevant
with
[ ]
Williams,
393, 451,
evidence.” State v.
N.J.
113
Defendant also claims that the on each piece of presented, evidence it was as forced the defense to interrupt the in jury argue against trial and excuse the order to admissibility. The in holding court acted accordance with our Cary, State v. 343, 352, (1967), 230 A.2d that trial piece should a courts wait until evidence offered before on ruling admissibility. Although its we have noted that this rule if it might impair capital should be relaxed witness, Ramseur, supra, examination of a N.J. 262 n. alleges 524 A.2d defendant here no impairment. such procedure no We find error in the followed the trial court in on ruling admissibility of evidence. Adequacy Sentencing-Phase
F. Instructions 1. Court’s Sentencing Options Instruction About the argues Defendant that trial court’s refusal to instruct the jury that the true alternative to a death sentence would have period seventy-year parole-ineligibility a life term with a been deprived due-process right of his to a reliable him sentencinjg punishment. subjected trial him to cruel and unusual words, argues the court should have other defendant serving plus defendant a life term informed the parole-ineligibility period for the twenty forty-year with a years aggravated Cheryl Alston. The murder sexual assault information present trial refused to court *35 jury response request question. a and a Al- to both defense instances, in though hold that the trial court erred both the we jury already the had ruling was harmless error because court’s in a would result a adequately informed that life sentence been period parole ineligibility. seventy-year of request charge jury the The defense submitted a written serving prior carrying forty that defendant was sentences in this ineligibility, and that a life sentence case years parole of seventy a mean that defendant would serve total would parole. The refused years being eligible for court the before occasions, charge and, jury nine instructed the requested on lay sentencing defendant to death that its choice between addition, thirty years parole ineligibility. In life with thirty-year life posed choice as death or a sheet with verdict overruling objection to defense counsel’s parole disqualifier. instruction, Alston case “is on a the court noted that the that * * * getting always possibility a reversed appeal [sic] serving may any time on that conviction.” be [so he] deliberations, jury into Approximately two hours their question: following “Is Mr. court a note with the sent the trial seventy eligible years?” for in the next Some Bey parole ever counsel to discuss the the court met with elapsed time before discussion, During that defense counsel ar- jury’s question. that defendant would not gued jury should be informed that again parole seventy years. The court eligible for for be murder was on expressed concern that the Alston conviction Nearly one hour after the note appeal might be reversed. sent, interrupted by that discussion officer had been court announcing that me Foremen informed he has a “[t]he [sic] and they question.” verdict don’t need the to the answer When courtroom, jury brought into the the trial court en- following gaged colloquy: in the THE COURT: And before I answered advised the Court question, your you had a verdict and didn’t want this you answered, you question correct? THE FOREMAN: That’s correct.
Thereupon, jury’s the foreman announced verdict. question posed by capital this case is whether a defen- right dant prior has to have his sentence for a conviction presented to the At jury. glance, appears first that issue to be by Biegenwald, foreclosed our in recent decision State v. (1991) IV). case, (Biegenwald A.2d 172 In that we rejected attempt a prior to submit his life sentences mitigating murder as evidence under the catch-all factor c(5)(h). * * * raises the this [Defendant's] a case request be specter may influenced the determination of another made on unduly substantially sentencing different record. Because the determination is fact specific subject significant remains sentencer discretion, the sentence imposed probative has little value to the another case under different circumstances *36 jury’s sentencing jury decision. A in a present case properly-impanelled capital sentencing aware limited available in a defendant convicted options of argument eligible tke will be never murder. Furthermore, defendant for parole proceeding. can be made based on the current (emphasis added).]
[.Id.
at
594
49,
A.2d 172
Essentially, we decided that a sentence for a different crime is
not “relevant to the defendant’s character or record” under
c(5)(h).
State,
225,
But
637,
see Harris v.
312 Md.
539 A. 2d
(1988)(sentences
649-50
for
robbery
possession
armed
of a
handgun
factors);
State,
mitigating
are
Davis v.
512 So.2d
factor),
1291,
(sentence
(Miss.1987)
1293
mitigating
for assault is
denied,
913,
1088,
rt.
485 U.S.
108 S.Ct.
601 However, Biegenwald in two the instant case differs from IV First, here did seek to important respects. defendant as mitigating his sentence as a factor but rather prior introduce Second, sentencing options. charge the on part jury of the effectively argue that would defendant could not a life sentence prison adducing in of keep him for his lifetime without evidence prior his murder sentence. capital sentencing requires principle reliability of in determining responsibility jury fully a be informed its penalty. v. North appropriateness of the death Woodson 2978, 280, 804-05, 2991,
Carolina,
49 L.Ed.2d
96 S.Ct.
428 U.S.
162-63,
II,
944,
(1976);
supra, 112
at
carried a
informing jurors
prior
Not
specula
about a
sentence invites
capital
might
serving
tion that the
defendant
be released after
only
thirty-year mandatory
a
minimum. A death sentence
the “jury’s
judgement
should reflect
normative
death is
that
”
fitting
II,
and appropriate punishment,’ Bey
supra,
‘the
112
162,
Ramseur,
548
(quoting
N.J. at
A.2d 887
supra,
Our
long recognized
preclude specula
Court has
to
need
distorting
jury’s
tion about a defendant’s release from
a
deci
impose
White,
sion to
life or death.
In State
170-79,
(1958),
603
Following
courts
precedents,
those
we hold that
prior
the defendant’s
capital
juries
should inform
about
cases
request
of a
on the
or
the event
either
defendant’s
sentences
appealing
If
convictions
jury
the defendant is
those
inquiry.
sentences,
is
jury
informed that the sentence
the
should be
jury
instruct
that the court
The court should also
the
final.
is to be
present
in the
case
alone
decide whether a sentence
will
sentences.
concurrently
consecutively
any prior
or
served
should
the
instruct
that it
Finally,
court should
the
impose a life or
prior
in its decision to
not consider
sentences
statutory aggravating or
they
because
are not
death sentence
Act is
Capital Punishment
mitigating factors. The focus of the
sentencing, requiring
that the
determine
on individualized
punishment
on
appropriate
death is the
based
whether
mitigat
aggravating and
of the offense and
circumstances
pending
ing
permit
To
consideration
sentences
factors.
first-
might
incongruous result that
prior crimes
lead to the
than
likely
to death
would be more
to be sentenced
offenders
by in
is struck
repeat-offenders.
proper
The
balance
would
instructing
request,
forming jury
pending
sentences on
but
a
aggravat
only
its life
death decision
on
jury to base
ing
mitigating
presented
the evidence.
factors
Moreover,
foregoing jury
we
that the
instruction
note
when,
case,
necessary
in this
uses the
all
as
the State
the more
aggravating
an
factor
prior
as
murder conviction
of the defen
c(4)(a).
sentencing jury
If a
is informed
under
conviction,
imposed,
not the sentence
prior murder
but
dant’s
by uncertainty about
sentencing
may
its
decision
affected
be
punished adequately for the
defendant has
been
whether
Harris, supra,
could thorough have an result. Based on our record, review of the that fully we conclude practical informed consequences imposing of the sen a life dire, During tence in apprised this case. voir the trial all court jurors prior twelve final of defendant’s sentence for his murder posed then following question: conviction and Knowing previously the defendant has been convicted murder is serving years parole, may without in to whatever the addition sentence be case, you any aggravating mitigating in this would still be able to consider or may by factor that be submitted State the defendant? [Emphasis added.] dire, During prosecutor4 voir either or defense counsel5 ten jurors informed the final already that defendant was serv- ing forty years a sentence of parole. without In their both opening closing statements, prosecutor and defense counsel informed the already that the defendant was serving forty-year parole disqualifier a life sentence with a for 25; 3 Harrington: 17; T to 104-15 Olski: T 55-10 to 8/27/90 Grubb: 8/21/90 20; 24; Papierman: T 173-5 to T 8/22/90 157-13 to Jones: 8/23/90 8/21/90 15; 22; T 178-5 to Leonard: T 197-12 to T 8/21/90 Boileau: 8/22/90 25-13 to 16; 24; 25; Duyckinck: Luisi: T 99-5 to 42-11 T to Glick 8/23/90 8/27/90 96-4; 114-1; Schup man: T 95-18 to Hoffman 8/22/90 T 113-15 to 8/22/90 (Citations penhauer: transcripts T 36-14 24. to refer to the of the 8/28/90 date.) voir dire 19; 25; Papierman: T 4 Olski: 56-12 to 8/21/90 T 160-16 to Jones: 8/23/90 22; 24; T to 186-5 Leonard: T 199-18 to Boileau: T 8/21/90 8/21/90 8/22/90 14; 19; Duyckinck: 28-6 to T 44-12 to Hoffman T to 8/27/90 8/22/90 117-11 18. 5 Harrington: 117-1; 20; T 116-18 to Luisi: T 104-5 to 8/27/90 8/23/90 Schuppenhauer: T to 40-6 16. 8/28/90 statement, opening defense counsel her the Alston murder. argued: case, pay Bey judgment his life your is in this Marko will with No matter what long security prison lives in a maximum crimes. will live for as as he for his He years serving term of which never set free. He is a which will be from he Cheryl years Board murder of he see the for the before can includes Parole * * * imprisonment, that will add your a term of And if verdict here
*40 Alston. spend prison years [actually the term he must onto at least another 70 30] guarantee they no that will Board. And there’s he even sees Parole before let him out. ever summation: point this her' Defense counsel reiterated Bey is you going not Marko to decide is whether or are have [W]hat going imprisonment affectively before he can to be life to what’s [sic] sentenced Board, seventy years, not more. he serve least if the Parole must see get going out possibility case he’s earlier is no in this that There anything quote/unquote good like that. behavior or death, seventy closing, prosecutor argued In his crimes: punishment for defendant's years, appropriate was the verdict, you, you opening to return a her said to that were Counsel in remarks sentence, serving seventy thirty years, the Defendant would be life years parole; law. a true without and that’s statement sentence, say, by serving that that the Defendant she And went on forfeiting That is not true. his life for his crimes. would be [********] seventy years So, by serving parole. He his without he doesn’t forfeit life * * *. his freedom
forfeits informed, Thus, judge, prosecu- repeatedly the jury the was defense, thirty-year manda- tor, that life sentence with a a consecutively to defendant’s tory minimum served would be period Alston murder. parole-ineligibility for the forty-year jury the presented the with Although instructions the court’s years thirty or life sentencing to death with option of defendant placed specific in option the ineligibility, was parole statutory the in terms of murder and context of the Peniston requirements: Bey punishment imposed begin on shortly will be Marko to decide what
You will murder for his of Carol Penniston [sic]. [********] subject Jersey are to the death all murderers the New Under law of aggravating is listed in the law
penalty. of the factors Unless at least one satisfaction, to a reasonable doubt his proved your beyond unanimously sentence will be life with for no at least imprisonment parole thirty years. You decide whether the sentence should be life on the will imprisonment just terms I or described death. [Emphasis added.] deliberations,
During jury its judge the asked the the follow- ing question: Bey eligible parole “Is Mr. for in ever the next question seventy years?” The can in be understood two differ- ways: jury ent either length the was confused about the parole-ineligibility period, the jury asking was whether the paroled any completion defendant could be time before the seventy-year period. reading find the latter more We plausible phrasing question because the of the itself reveals jury aggregate parole-ineligibility knew the period seventy years. from two life impor- sentences would be More tantly, though, jury reached its waiting verdict without to question Thus, have its answered. we conclude that the trial court’s failure inform charge to in its that a life spend seventy sentence would cause the defendant in years prison parole without constituted harmless error because jury already practical knew effect of a life sentence and nevertheless chose return death sentence. Question. Delay Court’s in
2. Answering Jury The. Defendant contends that the trial court’s failure answer question the jury’s reversible error. The submitted a question regarding eligibility then, parole, defendant's approximately later, verdict, one hour its returned without the question having Only portion been answered. a small delay answering question court’s in its attributable to discussions with counsel over how to question. answer the reason, record does not any, reveal the if for the delay convening the court and counsel. jurisdictions
Several held delay have that a trial court’s *41 responding question to jury require a does not reversal of the State, conviction. In Ebens v. 1264, (Ala.Crim. 518 1268 So.2d App.1986), the trial court the jury had informed that the court
607
court had finished
question
its
until the
could not answer
case,
jury
in
and the
had later
conducting voir
another
dire
waiting
question
for its
to be an-
returned a verdict without
The
held:
appellate
swered.
court
a
jury
could
waited
short
court;
denied access to the
have
they
The
jury chose to
if
deemed it
The
necessary.
time for further
instructions
they
charge and was
able to reach a
under
the court’s prior
obviously
proceed
no
to address the
find
error in the trial court’s failure
unanimous verdict. We
*
**
light
to
jury’s
fact
chose
continue delibera-
in
they
question
unanimous verdict without additional
instructions.
tions and reached a
[Id.
at 1268.]
delay
no
of a
other
have found
error because
Similarly,
courts
See,
answering
jury question.
e.g.,
in
United States v.
(verdict
1052,
(5th Cir.1978)
Barnes,
returned
586
2d
1060
F.
discussing
were
how answer
judge
while
and defense counsel
289,
Sims,
116
Ill.App.3d
III.
jury’s question); People v.
166
720,
(1987)
706,
921,
(jury
its
N.E. 2d
935
announced
Dec.
counsel), ap
consult with defense
judge
verdict before
could
394,
denied,
571, 119
We conclude First, jury error. question did not constitute reversible eligibility parole for is best question regarding defendant’s implicate any legal that did not characterized as an issue of fact mitigating aggravating weighing over the concerns (finding Chandler, 2d at 889 no supra, N.Y.S. factors. See jury delay question, court noted that jury error in reversible law). delay than court’s of fact rather question was one inordinate, part to its deliberations with and was due was not though, importantly, counsel. Most answered reaching a continuing its question deliberations itself Indeed, foreman informed court verdict. unanimous required longer no an delivering verdict before question. its answer *42 Photograph on Court’s Instruction
3. Defendant contends that he was denied a reliable determina- mitigating tion of sentence full the and consideration of evi- due to regarding photograph dence the court’s instructions the of the victim that the State had into introduced evidence.
The trial court excluded all but one of State’s the proffered photographs. slides and photograph One 8 11-inch X of the victim as she was found at the murder was scene over objection. photograph admitted defense counsel’s depicts slightly chin, the victim from below the waist to the excluding thus In photograph, her battered face. the victim the supine, is nude and with a and scarf belt tied around her neck summation, imprint and left a shoe on her chest. the prosecutor jury’s directed the the photograph attention to and argued: This is the chest neck of and Carol G. Penniston This is the This force. [sic]. strangulation thing.
is the I and ask to recall one you other regarding I ask to you recall the of Doctor M. Becker the testimony Stanley to destruction Carol Penniston’s face in and the her around area of [sic] eyes looking at Marko Bey. Later, requested defense counsel the to court instruct the the photograph only was to considered be as it related to assault, defendant’s sexual and also a in- proposed submitted charging ignore proofs struction any of the State’s aggravating were relevant to the factors. The court rejected requests, both and charged jury: those instead Your decision is to be based consideration the evidence upon your present- aggravating mitigating ed as it relates to the and factors which find be you
present. charge, again requested, After that defense counsel was denied, again limiting photo- a instruction on use graph.
Penalty-phase proffered by evidence the State must rele- be aggravating vant or to factors the rebuttal II, Biegenwald mitigating 71-72, supra, N.J. factors. Here, depiction of the photograph’s 130. victim’s 524 A.2d body marginally on nudity the violence inflicted her had committed the murder relevant to the fact that defendant (aggravating robbery during course of sexual assault Also, photograph c(4)(g)). prosecutor referred to the factor *43 proving robbery and sexual context of in his summation the assault.
Nevertheless,
repeatedly expressed our con
have
we
photo
admissibility
autopsy
and
the
of crime-scene
cern about
“Although
general
a
rule the
capital
as
graphs in
cases.
victim rests in the trial
admissibility
photographs
of
of a crime
discretion,
to
the ostensible relevance
the need
balance
court’s
prejudice is
against
jury
the likelihood of
of such evidence
Pitts,
capital
a
case.”
especially
penalty phase
in the
of
critical
(citation omitted).
638-39, 562
supra, 116 N.J. at
1320
We
A.2d
photographs
appropriate
of
more
when
have found the use
such
torture,
trying
prove
to
that the murder involved
the State is
mind,
aggravated
or
assault
to the victim
depravity of
an
c(4)(c)). McDougald, supra, See
N.J.
(aggravating factor
(Samuel) Moore, supra, 580-83,
In
at
4. Defendant’s court delivered an argues that trial Defendant misleading the use of instruction about inaccurate trial, prior prosecution defendant's criminal At acts. both defense witnesses testified about defendant’s earlier crimes as juvenile request- and about his incarceration at Yardville. As counsel, following limiting by gave ed defense the court instruction: You have received evidence defense to offered witnesses prove mitigating during existence of a factor or factors. And course of on whether direct examination or cross examination or
testimony, rebuttal by there has been mention made of State, a criminal of the Defendant history juvenile. as a
[********] adding rebutting consider such evidence or as [Y]ou may testimony only mitigating affecting weight assign factors and chooses to thereby Jury mitigating to the factors. charge, explicitly the court instructed the history defendant’s criminal could adding not be “as considered weight assigned aggravating factors.” See State (Marie) Moore, 239, 276-77, (1988). 113 N.J. 550 A .2d *44 argues requested
Defendant now
that that
instruction was
plain error, claiming that
jury
the
should not have been
it
told
prior-crimes
could use the
mitigating
evidence to rebut
factors.
Although
present
defendant
that
contends
he did not
evidence
mitigation,
of
his character
record in
claim
that
is belied
particular,
the record.
In
Young
Dr.
testified that defendant’s
improved in
behavior had
the structured
prison,
environment of
enabling
complete
him to
high-school-equivalency
a
examina
testimony
tion. That
mitigating
constituted
evidence intended
persuade
to
jury
impose
the
to
reviewing
life sentence. After
record,
the entire
relatively
we are satisfied that
there was
testimony
little
prior
about defendant’s
criminal acts and that
prosecutor barely
the
adverted to that issue in his summation.
I, supra,
505-08,
(death
Rose
at
5. gave an incorrect and the trial court Defendant contends that mitigating regarding age the jury instruction unconstitutional factor, c(5)(c). closing argument, defense counsel In her emo- mitigating in terms of defendant’s age factor framed maturity: and intellectual tional age eighteen begin until why
The of doesn’t even really concept personality that? is maturing, changing. growing, are are are are they Because They they people developing if their are more will or style. They their personalities, you integrate the decisions to this kind of chaos of how they experience, susceptible judgment The that are able to exercise. are able to make. The they they to think out the their actions[.] and the really consequences maturity ability Defendant at the time these that the can find this case youth [Y]ou mitigates sense. committed in that crimes were judge? to [Wjhat his realize was his What was ability ability had he? How much life of his actions? How old was experience consequences eighteen guidance old, had he had? When barely years he had? How much this crime. he went out and committed remark instructing disregard prosecutor’s After relevant,” “age per just not se during is summation that mitigating charge age following on the gave the court later factor: controlling chronological age, that his is must consider not [Y]ou only mitigating but also his mental factor, as a on whether youthfulness present life bear on his level of maturity. as development experiences physical instructed argues should have been that
Defendant alone, standing sufficient age, constituted factor, reference mitigating and that the court’s evidence of the prejudiced defendant. physical development mitigating as age factor Penalty Death Act defines of the murder.” the time age the defendant at “[t]he Ramseur, interpreted supra, we 2C:ll-3c(5)(c). N.J.S.A. age be recognized as mandating provision as statutory *45 mitigating a factor young, is relatively is or when the defendant the defendant when relatively
only legislative recognize intent to our society’s in accordance with old, probable young as it and the old as severely punishes very reluctance very punish others. (citations omitted).] 188 295, N.J. at 524 A.2d [106 612 determining a youth, defendant’s “relative” must look
beyond chronological age to considerations defendant’s over- maturity. all Supreme United States Court has stated that “the back-
ground and mental development youthful and emotional of a Eddings duly defendant be in sentencing.” considered [must] Oklahoma, v. 455 U.S. 104, 116, 869, 877, S.Ct. 102 71 L.Ed.2d 1, (1982). observed, 12 As one court age justice, hard and fast rule as to would tend to defeat the ends of [a]ny so weighed the term must as youth be considered relative and this factor in the light varying young conditions and circumstances. It is well known that two greatly may vary in mental and
persons
physical
experience
development,
criminal
tendencies.
State,
v.
[Giles
denied,
S.W.2d
483 cert.
413,
261 Ark.
549
U.S.
479,
434
894,
98 S.
(1977).]
Ct.
54
272,
L.Ed.2d 180
The Maryland
Appeals
Court of
mitigating
has held that “the
youthful age
circumstance of
solely
not measured
chrono
State,
Stebbing
v.
299 Md.
logical age,”
381,
903,
2d A.
921,
473
denied,
cert.
900, 105
U.S.
S.Ct.
276,
469
(1984),
83
212
L.Ed.2d
encompasses
but rather
prior
conduct,
such factors as
criminal
State,
environment,
degree
Johnson v.
home
maturity,
denied,
303 Md.
487,
cert.
1,
(1985),
474 U.S.
495 A .2d
19
1093,
106 S.Ct.
868,
88 L.Ed.2d 907
Thompson
(1986);
see also
v.
State,
1286, 1297
542 So.2d
(Ala.Crim.App.1988)
(upholding trial
finding
twenty-year-old
court’s
defendant did not establish
age mitigating factor
he
enough
plot,
because
“was mature
activities”),
plan
before, during
and scheme
and after
the criminal
denied,
'd,
(Ala.),
493 U.S.
6. Court’s Instruction c(5)(h) Mitigating Factor all inadequate contends that the court’s Defendant also factor, c(5)(h), mitigating on the catch-all warrants instruction trial, At defense counsel sub of the death sentence. reversal including jury charges, proposed proposed mitted a set of mitigating factor. Those instruc instructions for the catch-all emotional and to consider defendant’s tions asked childhood, neglect, habitual use alcohol physical abused damage, exposure to organic and in útero drugs, possible brain pro rejected court alcoholism. The his mother’s space a on the declined to leave blank posed instructions and mitigating factors jurors list other form where could verdict following c(5)(h). gave jury instruction on The court under the catch-all factor: character or find relevant to the Defendant’s other factor which Any you single is not factor. to the circumstances the murder really
record or it consider the evidence received as Rather, all it relates to requires you his life, concerns Defendant’s his characteristics or record character, of the circumstances of the crimes. totality *47 You do have not to describe such evidence or factor in words on the Jury mitigating verdict form. This is a catchall factor. [sic] Thus, statutory the court’s instruction added little to the lan- c(5)(h) guage of the factor. II, supra, 169-70,
In Bey
887,
N.J.
548 A.
112
at
2d
we held
jury charges
mitigating
that
on the
merely
factors that
recite
statutory language generally
inadequate.
are
There
noted
we
requirement
that
capital sentencing
pre
that
must not
“[t]he
mitigating
clude consideration of relevant
would
circumstances
of how the evidence can
explanation
be hollow without an
mitigate
Id. at
imposition
169,
the
of
penalty.”
the death
548
added).
A. 887
(emphasis
2d
emphasized
Our decision also
the
jurors
give
need for
the defendant
individualized considera
Id. at
death-penalty
168,
887;
in
sentencing.
tion
548 A .2d
Clausell,
344-45,
supra,
accord
221;
121
N.J.
at
580 A .2d
Pennington,
supra,
119 N.J. at
595-97,
816;
575 A .2d
II,
supra,
456-57,
Williams
113 N.J. at
550 2dA.
1172;
State
Zola,
384, 432-33,
denied,
(1988),
112
548
.2d 1022
cert.
A
1022,
1146,
(1989); Rose,
U.S.
489
S.Ct.
103 L.Ed.2d
supra,
112 N.J. at
539-40,
Biegenwald IV,
To illogical consider that evidence as of one factor only but probative only mitigating also runs afoul circumstances receive requirement individualized consideration. N.J. at A.2d [126 172.] case, In that we found that by trial court also had erred refusing separate c(5)(h) to list the factors under on the verdict * * * “Any form: other factor that a defendant for submits consideration and by that could be established some reliable evidence should be on form.” Id. jury-verdict listed (citations omitted). jurors We noted that 2d 172 594 A. mitigating factors is not instructed that the list should be standards, the court’s instructions By those exclusive. Ibid. present mitigating inadequate they did not here were c(5)(h) the individual defendant or in terms related to factor give Nor did the court evidence of this case. particular it could types mitigating factors that any examples of the consider.
Nevertheless, faulty held that instructions we have not grounds reversing a alone, c(5)(h), standing constitute on IV, See, supra, 126 N.J. at e.g., Biegenwald death sentence. 141-48, Marshall, 45-49, 172. In 123 N.J. 594 A.2d State v. summation, (1991), defense counsel’s .2d 85 we found 586 A evidence coupled to consider all the with the court’s instruction case, c(5)(h), jury. In that assessing adequate to inform the arguments of counsel can no “[although stated that we *48 court, by the the for instructions means serve as substitute instruction must be evaluated of an omitted prejudicial effect including all the totality of of the light ‘in the circumstances— ” arguments of counsel.’ jury, the to the instructions [and] 145, Marshall, (quoting 586 Ken 123 A.2d 85 supra, 2089, 789, 2088, Whorton, 99 S.Ct. tucky v. U.S. omitted). (1979)) (citation L.Ed. 2d mitigating case, on inadequate instruction In the court’s this by expla- c(5)(h) partially remedied defense counsel’s factor factors in her summation: mitigating of the nation only you pigeonhole heard information that have to all of the You don’t have put weight you category. assign it it it think has You can what in one having you as been established. factors strikes under whatever drinking say, testimony necessary you example, is the about his Not background. only to his relevant else, you something it and you can allocate its relevant If find that [sic] * * * extremely you weight appropriate this is give find it whatever system. really keystone important the is the of because this the that all the it clear to Thus, counsel made defense background could presented at trial about defendant’s evidence part mitigating c(5)(h). be viewed as of the catch-all factor well, point court made that as but clarity. not with sufficient assessing significance In the of on the court’s instruction the factor, mitigating catch-all note six we members the jury found compari- that that factor had been established. In son, only jurors mitigating two found that the factor ex- disturbance, c(5)(a), proved, treme mental or emotional had been jurors age factor, and none of mitigating the found that the c(5)(c), significant or impairment factor, of moral faculties c(5)(d),had jurors been established. Much of the evidence that might have considered relevant the catch-all factor was also germane to jurors the factors that most of the specifically rejected. strength view of defendant’s evidence of factors, mitigating jury’s mitigating reluctance to find that factors —other than the catch-all factor—had been established jury’s qualitative reflects the despite determination that its credibility, testimony mitigation on was insufficient to di- minish culpability for his crimes. We consider extremely unlikely possibility that the court’s instruction on mitigating capacity catch-all factor had materially jury’s produce affect unjust deliberations an result. G. Other Issues Constitutionality c(4)(a)
1.
Aggravating Factor
argues
2C:ll-3c(4)(a)
Defendant
prior-mur-
N.J.S.A.
(the
aggravating factor),
der
as
Legislature
amended
Legislature’s
unconstitutional because it contradicts the
intent,
clauses,
statement of
post
violates the ex
facto
*49
constitutes
bill
attainder.
Biegenwald,
State v.
96 N.J.
630, 634-40,
(1984)
I),
617
prior
statute to allow the use of
murder convic-
amended the
1985,
appeal.
c.
still on
L.
178.
tions
After we had
defendant’s first conviction
reversed
I,
again
Bey
defendant was retried and
Alston murder
Appellate
Division affirmed that
convicted murder.
403,
conviction,
N.J.Super.
and we denied
258
610 A.2d
sentencing proceed-
Prior to
certification.
defendant’s second
case,
c(4)(a)
in the
defendant moved to strike the
ing
Peniston
statute,
factor, arguing
originally
enacted and
as
I,
interpreted by
Bey
Biegenwald
Court in
would not
this
allege
to
that factor for a murder
have allowed the State
motion,
appeal.
on
The trial court denied
conviction still
c(4)(a)
based on
ruling that the
could submit the
factor
State
for the Alston murder.
defendant’s second conviction
c(4)(a)
argues
now
Defendant
submission
resentencing
aggravating factor in that
trial contradicted the
Judiciary
to
Legislature’s intent. The
Committee Statements
following
enacting
preamble: “In
L.
c. 178 contain the
bill,
Legislature
in this
the intent of the
amendments contained
changes.
are
only prospective
effect
The amendments
is to
now on
apply retrospectively
to
or to affect cases
intended
S.950, supra
Judiciary
at
appeal.” Senate
Comm.Statement
1
Assembly Judiciary
also
Comm.Statement to S.950 at
1. See
4, 1985). However,
(Feb.
have held that that statement of
we
amendments
legislative
dispositive
intent is not
on whether the
the amendments
given
be
retroactive effect because
should
II,
pre-existing
Biegenwald
supra,
law.
106
merely clarify a
Indeed,
64-66,
many of the amendments
at
63-65,
part
Defendant use of the Alston mur aggravating der as an factor violates the state and federal prohibitions post constitutional on ex laws defen because facto dant committed both murders our in Bey before decisions I, 1; 10, Biegenwald I. Const. art. See U.S. cl. N.J. Const. § ¶ IV, 7, purpose art. 3. post of the ex clauses is to § facto “give warning ensure criminal statutes fair of their effect permit rely meaning individuals to on their explicitly until changed.” Graham, 24, 28-29, Weaver v. 450 U.S. 101 S.Ct. 964, (1981). 67 post L.Ed.2d To ex violate the facto clauses, the retrospective law at issue must be “both and more onerous than the effect law on the date Id. offense.” 30-31, added). at at 24 (emphasis S.Ct. at L.Ed.2d Here, murders, c(4)(a) on dates of defendant’s factor stated simply that “the defendant previously has been convicted Therefore, of another murder.” defendant notice was on conviction, any not, murder potentially final or could be used to c(4)(a) support the aggravating factor. The subsequent Court’s c(4)(a) interpretation of in Bey Biegenwald I, factor Legislature, later controlling overridden was not law Thus, the time of the incongruous murders. it would be to find amendment, this merely which clarified Legislature’s *51 effect, reinstated, statutory and the interpretation Court’s post to plain meaning of the as enacted be ex statute facto. a of that the amendment is bill Defendant contends of legislative it determination because substitutes attainder Const, I, 10, cl. judicial art. guilt his for a decision. See U.S. § IV, Brown, ¶ 1; 7, 3; 381 art. States v. United N.J. Const. § 1713-15, 484, 446-49, 1707, 14 490- 437, 85 L.Ed.2d U.S. S.Ct. (1965). Although response was a to deci 92 the amendment Biegenwald, changed affecting Bey and it of this Court sions legislative capital and did not effect for all defendants the law group guilt particular defendant or of any of determinations of amendment is not a bill We conclude the defendants. attainder.
2. Misconduct Prosecutorial prosecutorial contends that several instances of Defendant Here, we of his death sentence. misconduct warrant reversal important only allegations those that we believe raise address legal issues. prosecutor’s primary duty justice is to serve rather
The 104, Farrell, 99, 61 293 convictions. v. N.J. than to win State all (1972). prosecutorial fairness is principle of A. 2d 176 capital of cases because imperative in the context the more Consequently, this Court ultimate death is the punishment. prosecutorial miscon review to apply will a stricter standard of 324, Ramseur, 524 supra, cases. 106 at capital N.J. duct in Ramseur: We set forth that standard review A.2d 188. determining prejudicial and denied whether misconduct In prosecutorial we defense counsel made a timely a fair consider whether trial, defendant objection, and whether was withdrawn whether the remark promptly, proper record from the and instructed court ordered remarks stricken disregard them. 524 A.2d 322-23, at
[Id. 188.] 509, 1058; I, supra, 112 at 548 A.2d State N.J. See Rose denied, (1988), Koedatich, 225, 338, 939 112 548 A.2d cert. N.J. 620 1017, 813, (1989). U.S. L.Ed.2d 803 More S.Ct.
recently,
prosecutorial
we observed that
the assessment of
misconduct “must take into account the
tenor
trial and
degree
responsiveness
both counsel
the court
Marshall,
they
supra,
when
occurred.”
improprieties
153,
586 A .2d
85.
case,
alleged
primarily
this
misconduct occurred
dur
ing
prosecutor’s
prosecu
We
summation.
have held that a
closing argument
tor’s
must be limited to
facts in
evidence
reasonably
inferences
be drawn
therefrom. See State v.
Carter,
(1982); Farrell,
91 N.J.
(a) Mitigating Mischaracterization of Factors statement, closing
In his prosecutor improperly possible mitigating characterized a factor as an excuse: “Child * * * horrible, thing abuse is a horrible its but not an [sic] he excuse and wasn’t a when child he killed Carol Penniston explained, As we have purpose the mitigating [sic].” conduct, to justify factors is “not or excuse defendant’s but to present extenuating regarding facts the defendant’s life or character or the surrounding circumstances the murder that justify II, would a sentence than death.” Bey supra, less 170, 548 .2d N.J. at A 887. The trial prosecu court remedied the by instructing tor’s mitigating error factors are extenuating purposes punishment, circumstances for Therefore, excuses for murder. prosecutor’s misstatement did not capacity have the unjust to cause an result.
(b) Age Miseharacterization of Mitigating Factor
At the murder, time of the Peniston just defendant had eighteen years age. turned prosecutor, closing his statement, argued that the age mitigat should not find the ing factor. * * * eighteen As we sit here performing there are olds today year every- I sitting where. dare thousand say fifty who are in Saudi people Arabia eighteen. in our of them are military, many age per just se not relevant and in growing So, and in this up immaturity guy is a guy whose out on the street at thirteen. This is [sic] whose [sic] from the evil influences of his away mother the time he’s fourteen.
[Emphasis added.]
Penalty
Both the Death
Act and our decisions make clear that
age should
mitigating
be considered a
factor when the defen
Ramseur,
young.
dant is
supra, 106
atN.J.
factor to consider *. you Thus, the prosecutorial court’s instruction rendered the error harmless.
(c) *53 Experts Prosecutor’s Attack on Defense Throughout summation, prosecutor his criticized experts: the defendant’s medical diagnosis
You heard the from he’s an antisocial everybody. Everybody [says] ‘ person. disagree now Oh, we can as to how it came but ever about, [sic] responsible doctor in this case tells antisocial Pincus. you personality, except [********] suggest Dr. Pincus’ science. I to should you, you question going got and choose facts to make the first and he’s pick [H]e’s theory work.
theory
[********] damage got left brain to be in the And well [defendant’s has] [Dr. Kay says], * * * I can’t show on a but it has to be there. machine, lobe. you temporal it Because know that that’s what controls does have to be there? we Why self-fulfilling. behavior. Its [sic] It has to be there its to be there. because [sic] suppose [sic] comments, prosecutor only impugned not In those experts, integrity of the defense he also characterized their being predetermined by their theories. scientific conclusions as 3-5.8(a), the ABA Standards Criminal Justice § “It Under unprofessional prosecutor intentionally to conduct for the misstate the or mislead the as to the inferences it evidence I, 518-24, supra, Rose N.J. A. 2d may draw.” prosecutorial the death sentence for miscon we reversed implied, among things, prosecutor duct where the other that the expert’s testimony urging was fabricated or contrived at the of contrast, By prosecutor here defense counsel. did part imply any impropriety on the of defense counsel. More over, the trial court issued a curative instruction: during made summation, references the Prosecutor his of the [A]ny any making diagnosis
defense Doctors were a certain of the Defen- predisposed disregarded Marko should be dant, Bey, by you. weight given to be to the both for the Doctors, expert testimony defense and for the is for evaluation and determination. Prosecution, your Overall, any prosecutorial we conclude that misconduct record, summation, when viewed in the context of the entire harmless. Assistance Counsel 3. Ineffective of argues rulings prohibit Defendant that the trial court’s court, ing addressing prosecutor, defense co-counsel from him denied effective assistance of counsel. cases, complexity capital inherent Given the the Office assigns attorneys represent every the Public Defender two trial, capital At the client. outset court made it clear
623 only one permitted Public Defender would be to examine on, and cross-examine witnesses. Later the court refused to listen' attempted to co-counsel when he participate in a motion ruling, in limine. As a result of the trial court’s lead repeatedly request counsel had to conferences her co- whenever sought point, counsel to make thereby occasioning a needless delays. point, during conference, At one a sidebar co-counsel attempted object prosecutor’s to the cross-examination of Dr. him, Young. stopped The court reminding him that it would only listen to lead counsel: introducing through He’s bad acts [CO-COUNSEL]: back door. prior THE COURT: I’ll listen to her. saying, What were [LEAD COUNSEL]: Whatever he’s you [co-counsel]?
said. I concur with. trying He’s [CO-COUNSEL]: to introduce characters— listening. THE COURT: I’m not —characters not [CO-COUNSEL]: issue. recess,
The court then ordered following colloquy a and the occurred: having following THE COURT: I not [Co-counsel], hope you’re difficulty my handling I instructions. told is the one who is this case. you [lead counsel] If want to consult with you [lead wants to consult counsel] [lead counsel] regard objections
with with to the you fine. [sic] any or'statements, going I’m not to listen to both of at sidebar nor Court. you open ******** threatening chilling Your Honor [CO-COUNSEL]: the Defense. THE COURT: This is not a debate. You can talk to and she [lead counsel] objections can make her notes and she can on the record. I’m put your only
going objections, to listen to or her [lead counsel] yours. thereupon Defense counsel thirty-five consulted for minutes. Although rulings the trial court’s strike us as unwise and restrictive, unnecessarily proposition we reaffirm the generally possesses trial court broad discretion over the con- Smith, 128, 132-33, N.J.Super. duct of trial. Smith v. 17 85 denied, (App.Div.1951), A.2d 523 A.2d certif. (1952). showing requires
A of ineffective assistance that coun “performed sel competence” below a level of reasonable that, probability for counsel’s is a but
“that ‘there reasonable *55 errors, proceeding would have unprofessional the result ” 42, 60-61, Fritz, 105 519 A.2d different.’ State v. N.J. been 668, (1987) (quoting Washington, 466 U.S. 336 Strickland v. 2068, 674, (1984)). 694, 2052, 698 Defen- 104 80 L.Ed.2d S.Ct. co-cpunsel aspects in of the involved all dant concedes that was Additionally, addressing jury. the court and case other than not claim that lead counsel was overburdened. defendant does certainly Although ruling trial court’s occasioned some inconvenience, counsel to confer on the court allowed defense any time limits on those request, apparently did not set inability Defendant cannot show that co-counsel’s discussions. performance the defense’s or that speak court undermined probability of the sen- it created a reasonable that result tencing been different. would have
4.
Error
Cumulative
if the individual errors
Defendant contends that even
harmless,
requires
their cumulative effect
reversal
are deemed
acknowledged
of defendant’s death sentence. We have
that
during
penalty
the course of the
several errors were committed
trial,
phase
although none of those constitutes reversible error.
to discuss the issue of cumulative error
We had occasion
169-70,
Marshall,
85. There we
supra,
The fact capital protracted, legal difficult issues assures that in the course subtle and virtually ly implicate judges, be Trial of each trial some errors and will imperfections apparent. judges, rulings make their in the heat of without trial, unlike appellate and not the most for deliberative even review, experienced opportunity judges conscientious trial can be perfect. at 586 A .2d [Id. 85.]
Nevertheless, qualitative make “a determi- we are still bound to case, considers, in the context of the entire whether nation that affecting the verdict or the clearly capable the error was I, 94-95, Bey supra, 548 A. 2d 846. sentence.” standard, carefully reviewed each of the Under that we have review, opinion. conducting we errors identified this significantly by poignant presenta are influenced mitigating attempted to relate tion of substantial evidence criminality he suffered as a child. his adulthood to the abuse factor, any mitigating and the jurors The failure of some to find mitigating jury’s unanimous conclusion that the evidence factors, aggravating reflects substantially outweighed by the strength mitigating jury’s despite conclusion that evidence, appropriate punishment. death was the during the errors committed fully
We are satisfied that cumulatively, phase, individually and penalty considered both *56 clearly capable affecting the sentence. were not Capital Act Constitutionality Punishment 5. Penalty argues Jersey’s that New Death Defendant against cruel Eighth prohibition Amendment’s Act violates punishment. rejected We that constitutional chal and unusual Ramseur, supra, 524 A. 2d 182-90, N.J. lenge and consistently subsequent that decision in our we have reaffirmed cases, capital today. as we do Proportionality Review
6. disproportion- death sentence is Defendant contends that his cases, points penalty imposed in similar and to two ate to the retreat its initial will- factors: the Prosecutor’s Office’s from mental ingness plea bargain to enter into a and defendant’s childhood. N.J.S.A. 2C:ll-3e mandates that illness and abused proportionality on a this undertake a determination Court However, request. proportionality defer review we argument can be full record has been established and until a with of the Court after consultation scheduled the Clerk counsel.
IV.
Conclusion murder of Carol for the defendant’s conviction We affirm sentence of death. and affirm the Peniston we HANDLER, J., dissenting. II), (1988) (Bey 548 A .2d Bey, State the murder of Bey’s conviction for affirmed Marko
this Court Peniston, death and remanded his sentence of but vacated Carol proceeding. A second capital-sentencing for a second the case Peniston murder. death for the sentenced defendant to jury has sentence. affirms that death The Court reasoning of analysis and disagree with the emphatically I enable it to reach critical issues that the Court on certain in this case is sustainable. that the death sentence conclusion application Further, exception I take to the Court’s cases, it to capital which allows judicial of review standard cumulatively singly under- errors that discount serious trial disposition of this validity of the death sentence. mine the irrationality inconsistency, illogic, exemplifies the appeal I adhere to the capital-murder prosecutions. surround unconstitutional as Capital Murder Act is position that enacted, applied. interpreted,
I
*57
appear in
Peniston
of defendant’s murder
Carol
The facts
131-33,
and are
II,
548 A .2d
supra, 112 N.J. at
Bey
568-569,
A .2d
Ante at
sufficiently recounted
the Court.
murder convic
defendant’s antecedent
at 819. I conclude that
defining capital
jury instruction
on an erroneous
tion was based
on a
considered to be founded
and therefore cannot be
murder
murder.
I therefore would
of intentional
valid determination
(1988),
Gerald,
.2d792
113 N.J.
549 A
under
reverse
State
join
I
in
dissenting opinion
and on that issue
of Justice
O’Hern. Post
Portions of the trial court’s in were framed terms of killed, knowingly purposely whether defendant or without men- serious-bodily-injury. jury interrog- tion of intent to inflict atory knowing purposeful also was framed in terms of or murder, with no mention of serious-bodily-injury murder. How- ever, instructions, at the outset of jury its court told the charged that the indictment that defendant “did commit the crime in Bey purposely of murder that the said Marko did or injury cause the death of or knowingly bodily serious result- ing in the death of Carol Peniston.” The court’s explanation killing of murder also included references to a either with purpose causing only or an awareness of homicidal acts “seri- bodily injury resulting ous in death.” trial, In denying defendant’s motion for a the trial new court acknowledged parts charge referred to serious- murder, bodily-injury insignificant but dismissed them as be- charge entirety on, cause its instructed the “[t]he consider, required they pur- whether the defendant [sic] posely knowingly or caused death.” The trial court also rea- arguments only soned that the of both counsel framed the issue knowingly purpose- terms of whether defendant had killed or ly- way jury, having
There is no to know whether the heard including knowing several times that murder is defined as purposeful resulting in bodily injury infliction of serious death, Moreover, continued to think of murder in those terms. regardless argument, jury may of how counsel framed the disregarded prosecution, have theories the defense and reaching theory concerning guilt its instead own murder, which, theory charge, because of the court’s murder. See encompassed serious-bodily-injury could have Green, 281, 288, (1981)(observing State v. 86 430 A .2d914 “[appropriate proper charges to a are essential *58 560, 595, trial”); Butler, 143A.2d 530 v. 27 N.J. for a fair State (1958) (stating criminal law cannot be administered that “[t]he speculate as if is allowed to justly efficiently specified proscribe by a conduct the law intended to what 478, 488, crime”); Taylor Kentucky, 436 U.S. see also (1978) 1930, 1936, (holding that 56 L.Ed.2d S.Ct. by for instructions “arguments by counsel cannot substitute court”). Hence, on this question the sole before the Court in the record from issue is whether there is a rational basis may that defendant have could have concluded which bodily injury. There is such a basis. intended to inflict serious state of mind relating Much of the evidence to defendant’s reasonably juryA could have consisted of his own statements. a loss of self-control rather inferred from those statements told an intent to kill. After his arrest defendant than an investigator: got just bugged I saw out of the I robbed the I she saw out, face, her, lady, my just it was dark, car on walked found where Avenue, around, Sewall someplace light just bugged going through There was a and I out. her pocketbook. just building, side of Avenue, Somewhere across the tracks past Asbury by just going through building, building bugged I her out, inside the purse, looking was at me. into her coat I turned around and she went pocket, confession, jury during guilt
In his written read to the rummaging through phase, that he had defendant stated been looking” purse he noticed that she “was Peniston’s when her, “got hitting scared” started and hit him. He said he “four, five, times,” indicating that he did not use her or six During anything striking his hands when her. his direct but gave testimony, defendant a similar account. On cross-exami- prosecutor, defendant that he had killed nation denied keep identifying her from him. Accord- the victim order to examiner, ing strangulation the cause of to the medical death, strangling defendant never mentioned the victim. but incorrectly defendant had men- The trial court indicated that defendant, belt, person prosecutor, was the tioned a but weapon strangle used to who characterized the belt as the sum, necessarily defendant’s statements do not victim. *59 indicate an intent to kill.
Moreover,
totality
inescapably
lead
to
the facts do not
defendant
intended to kill. Defendant’s
the conclusion that
died
he had choked her. The trial court reasoned
victim
after
head, is meant to
“strangulation,
like bullet wounds to the
majority
accept
seems to
cause the death of
victim.” The
According
choking
“com-
reasoning.
majority,
to the
monly
designed
likely
as a form of
to
understood
violence
victim,
by
ordinarily
kill a
and hence would
not be used
one
only
purpose
bodily injury.”
to inflict
Ante at 579-
whose
580,
experience, ignores
possibility
that defendant meant
to
momentarily,
choke the victim
and that her death was uninten-
Breakiron,
tional. As this Court stated in
v.
108 N.J.
State
591, 605-06,
(1987):
[O]ne put a that he or she did not with that death know, convince practical certainty, in would result. On the other one who throws a at someone a bar hand, punch resulting convince a death from the victim’s fall was be able to may The much more case not the certain result of the practically punch. difficult reaching anger out in is one in which someone like admits to [the defendant] choking purpose? the victim mtk a towel: was death his at another and practically he certain the victim would die? Was [(emphasis added).] 128, 190-92, 124 590 2d 624 Perry, also v. A.
See
State
N.J.
(1991) (Handler, J., concurring
dissenting
part)
part
death,
strangled
to
death-
(arguing that where defendant
victim
Gerald);
Vujosev
eligibility was not established under
State
435,
ic,
(App.Div.) (affirming
N.J.Super.
Common as reflected in judgments the criminal handed state, negates down across the the majority’s position. Jury prosecutorial verdicts and charging suggest decisions that New Jerseyans often strangulation believe that deaths are unintend- ed. Data collected the Administrative Office of the Court Baldus, Special Professor David Proportion- Master of our ality Project, following: Review indicate the eighty strangulation homicide occurring cases over last decade in there leading cause of death and strangulation was the which person had commit- identity of the who no about the was doubt homicide, in convictions for only forty-four resulted ted the Thirty- serious-bodily-injury murder. knowing purposeful or crimes; those lesser five of in convictions for six resulted aggra- for manslaughter, twenty-five in convictions for resulted Admin- eight felony murder. See manslaughter, and vated 1992, Memo, Courts, June istrative Office of the Interoffice statistics, conclusion that a majority’s at 2. Given those Bey did not intend to could not have found that jury reasonable patently unsupportable. kill is defendant committed this agree majority
I
with
case
brutality.
compares
The State
this
particular
murder with
(1990), cert.
Given the violence
have
jury would
impossible, that
unlikely, but not
it is
murder had it
serious-bodily-injury
guilty only of
him
found
given
been
the chance. Because the issue is close and there is
doubt,
room
the issue must be resolved in favor of defen
“
only
‘minimally adequate’
dant. The evidence need be
provide a rational
basis for the
to find that defendant
intended
bodily injury.”
to cause serious
Pennington,
State v.
547, 561,
(1990)
Pitts,
(quoting
II
prosecution
Cooke,
The
retained Dr. Gerald
a clinical and
psychologist,
forensic
to examine and evaluate defendant. Dr.
prepared
report
However,
Cooke
testify
but did not
at trial.
report
by
prosecution
his
experts
reviewed
and defense
testify.
sought
who did
unsuccessfully
Defendant
to introduce
report
the Cooke
report
into evidence and to use the
in cross-
examining
expert
a State’s
witness. The Court now concludes
rulings foreclosing
that the trial court’s
presentation by
the.
defendant of
mitigating
relevant and reliable
evidence consist
ing
report
of Dr. Cooke’s
did not constitute reversible error.
590-591,
Ante at
A
Gary Kay,
presented
expert
three
witnesses: Dr.
The defense
Young,
psychi-
a forensic
neuropsychologist;
a clinical
Dr. John
Pincus,
atrist;
neurologist. Their testimo-
and Dr. Jonathan
c(5)(a),
prove mitigating factors
ny was offered to
“[t]he
of extreme mental or emo-
defendant was under the influence
prose-
a defense to
tional disturbance insufficient to constitute
cution,”
c(5)(d),
capacity
appreci-
and
that “[t]he
wrongfulness
or to conform his conduct
ate the
of his conduct
requirements
significantly impaired as the
to the
of the law was
intoxication,
not to a
of mental disease or defect or
but
result
prosecution.”
defense to
Their
degree sufficient to constitute a
c(5)(h): “[a]ny
mitigating
also relevant to
factor
testimony was
is relevant to the defendant’s character
other factor which
or to the circumstances of the offense.”
record
experts
emphasis
Although the defense
differed somewhat
detail,
agreed
physio-
they essentially
that a combination
damage inflicted on defendant as a
logical
psychological
maintaining control in
incapable
rendered him
child had
experts
described the alcohol abuse
certain situations.
him;
pregnant
with
defendant’s mother when she
child, result-
injuries
sustained
defendant as a
serious head
accident;
beatings
bicycle
ing
his mother’s
as well as a
from
during
pre-adolescent
his
own substance abuse
and defendant’s
factors, in addi-
teenage years. They testified that those
*63
variety
defendant,
tion to a
of tests administered to
indicated
brain-damaged.
that he was
experts
The defense
also testified
to the cruel and unstable
in
circumstances which defendant had
been raised: his mother
him severely
frequently,
beat
and
often
apparent reason;
for no
he and his brothers often were left
food,
in
apartment
water;
alone
an
electricity,
without
or hot
family
frequently
his
moved
figure.
and had no father
experts
physical
concluded that defendant’s
psycho-
logical injuries rendered him unable to maintain self-control and
him
caused
to strike out violently and irrationally especially
—
against
Kay
women. Dr.
“likely
testified that defendant is
to
control,
lose
get
to not be able to
the cork back on the bottle
genie
and let the
appears
out---- He
to be an individual who
difficulty controlling
has
intensity
respons-
his emotional
es.”
Young
Dr.
testified that certain
“trigger”
stimuli
n defendant a violent reaction that
place
would not take
in a
person,”
“normal
and that the
damage,
combination of his brain
the fact that he
alcohol,
was under the
drugs
influence of
right stimuli,
and the
made him lose control “when his crimes
place.”
took
along
Dr. Pincus testified
similar lines:
I think
have a
there who
...
you
person
abused,
was
has a model of behavior of
striking
savagely
angry
angry
out
when
and also is
you’re
himself because of
he was treated
his
way
by women,
mother.
I think that he was out of control at that
time when he did that, when he
committed the homicide.
control____
has these
which he finds it
[H]e
difficult
impulses
What
very
controlling
doing
him from
it is he
most of
has,
some tenuous
time,
marijuana,
control over these
Or when he drinks or
impulses.
when he uses
he
something
challenges
loses it. And then if
during
that he feels
happens
him,
gets
fight.
the course of that
going
he
loses control,
into a
completely
He’s
fight until he either kills or is killed. He can’t control
it.
rebuttal,
presented
Michals,
State
Dr. Timothy
psychiatrist.
forensic
Dr. Michals testified that defendant
merely suffered
disorder,”
from “an antisocial personality
that
is,
throughout
“that
life
his
his behavior towards others hasn’t
noth-
the rules.” He testified further
followed
“[t]here’s
organically that we know of that
ing wrong with the brain
Reviewing the facts
person to become antisocial.”
causes a
murder,
surrounding the
Dr. Michals believed
Peniston
“intact,”
there
thinking
clear and
“triggers” that made defendant murder.
no “stressors” or
were
simply
suggested
had killed Peniston
be-
He
that defendant
caught.”
emphasized that
get
He
cause he did not “want
by the defense
performed
tests
on defendant
none of the
signs
damage.
conclusively showed
of brain
experts
report was
decision to exclude Dr. Cooke’s
The trial court’s
defendant was
large part
on the court’s conclusion that
based
unavailability as a witness.
responsible for Dr. Cooke’s
partly
*64
subpoena
the
to the defendant’s failure
majority
The
refers
by the trial court’s
discounting
in
the harm caused
doctor
However,
it is fair to
Ante ruling.
63.6 prosecutor argued
The if the defense wanted to use evidence, testimony mitigating Cooke’s as then the defense subpoenaed nevertheless, should prosecutor, have him. The implicitly conceded its reliability. He stated: “[u]nder circumstances of this only thing go case the should pages through one quite frankly, seven. And I would move pages through one seven expert my expert because their made unavailable.” clearly adequate
There was no reason attributable to attor- ney justify dereliction to the exclusion or limitation of Dr. report. leading Cooke’s The events report, to the need for that however, importance reveal both its reliability, reliability and its implicitly attorneys assumed and the The witnesses. sensibly Court cannot fairly predicate its determination concerning procedural grounds harmfulness of error on involv- ing the actions of defense counsel.
B probative worth and reliability report cannot be ignored. pages In the first report, seven of his Dr. Cooke essentially rejected experts’ the defense findings of brain dam- age. However, pages report the last two largely are experts’ corroborative of the defense psychological profile: that history abuse, drug use, of child his and alcohol feelings his hostile toward women as a result of his mother’s mistreatment of him have resulted in behavior in which defen- *65 dant loses control. Dr. Cooke wrote: neglect beatings is no that there was a [T]here of and cruel question pattern of Mr. his mother. Bey this led to antisocial by my opinion features above and group anger those of his and also caused beyond peer intense toward wom- drug en— The other which is part history that his use important marijuana consisted of which he used mostly all with day, every day, only experimenting drugs occasional with other such as cocaine and L.S.D. He also
indicates he drank two to three 40 ounce bottles of beer. theOn per day smoking marijuana of the offense he indicates that he had been day all and day beer____ believes he had at least two 40 ounce bottles of
637 child, anxious, insecure, depressed, helpless, frightened, he and due to As a was older, cruelty got neglect As he and the combination of and from his mother. milieu, in structures deal with under dissocial influences his his to defensive feelings attempt compensate for them them. those involved an and undo system developed personality into a which encour- This defensive disorder also expression anger neglect cruelty. aged the of he to the the felt due and feeling Dr. also on toward wom- Cooke elaborated en: women, hand, fantasy perhaps of the one he tends to idealize because the of On hand, hoped angry for
the mother he never had. On other he has both and women____ derogatory feelings rage tremendous toward He has a toward and, opinion, rage my in it is this that is the reason for his brutal women aggression, demeaning, his of and sexual attacks toward victims. The level aggression necessary purpose robbery. certainly not if he was Even police, prevent identifying kill him from to the level wanted to them to him aggression brutality unnecessary. Dr. Cooke concluded that rob, history, persons he
as one looks back over his almost all of the has tried to attacked, and, exception, physically and also has have with one all been women literally enough have old his of them been been to have been mother. The dynamics regarding personality the evidence combination his physical do brutal and sexual attack on Ms. Penniston indicate that [sic] point rage. he control and acted in a some lost [(emphasis added).]
It is of
...
have before it all
course “essential
the individual defendant
possible relevant
information about
Texas,
262,
428
fate it must determine.”
v.
U.S.
whose
Jurek
276,
2958,
929,
(1976).
2950,
941
96 S.Ct.
L.Ed.2d
“[A]
may
precluded
considering,
may not
sentencer
from
be
consider,
any
mitigating
relevant
evidence offered
refuse to
less
death.”
the defendant as the basis
a sentence
than
2934,
302, 318,
2946, 106
Penry
Lynaugh,
492 U.S.
S.Ct.
(1989) (citing
Oklahoma,
Eddings v.
455 U.S.
L.Ed.2d
(1982)).
In Eddings,
resulting emotional
455
102
disturbance.
U.S. at
S.Ct.
876-77,
at
does
a
not
that
trial court must allow the
any
to consider
and all information a defendant seeks to
present
“[Rjelaxed
the
mitigating
form of
evidence.
stan
admissibility
not
equated
dards for
are
to be
with automatic
admissibility.”
Davis,
611, 623,
State
96
v.
N.J.
N.J.S.A. part: relevant “The defen offer, may regard dant governing without to the rules trials, admission of evidence at criminal reliable evidence rele any vant mitigating factors.” This Court has con proffered sidered on several occasions the admissibility of miti gation provision. evidence under that In Savage, State v. 637-38, (1990), A. 2d the trial court excluded mitigation evidence it “double-hearsay.” characterized as This Court, noting concerning reliability that doubts should be re defendant, solved in favor of the stated on retrial if evidence should be found any admitted “to be relevant to mitigating factor.” Davis, supra, In State Ibid. 96 N.J. (decided (c)(2)(b) 2d 308 477 A. before section was added to foreshadowing approach statute but nonetheless section), the Court found trial court had erred in excluding testimony expert sociologist of an that the defen demographic dant certain shared features with offenders hav ing. Pitts, rate of supra, low recidivism. State v. 116 N.J. 621-35, 562 A. 2d the Court found no error in the *67 testimony part in of based in guilt phase the of trial exclusion under the influ with defendant when he was on an interview means not considered a reliable amytal, of sodium which is ence Nevertheless, the court acknowl ascertaining of the truth. penalty phase. edged that evidence could be used in the such 502, (1990), 439, the 119 .2d 435 Long, 575 A State the defendant’s letters written on trial court ruled inadmissible “[although technical rules of The stated that the Court behalf. penalty phase, any proofs in the do not defendant evidence bind by subject to cross-examination the State.” should be submitted light availability the The Ibid. Court concluded “[i]n testified, witnesses, actually the of whom character thirteen excluding did in the letters.” Ibid. court not err prosecutor nor defense argues that the the The State neither question methodology analysis opportunity to the had the Cooke, reliability report of the by so the used Dr. however, circumstances, reli- the never established. Under the That the ability report considered validated. could be strong is a indication of the had retained Dr. prosecutor Cooke point of reliability report’s findings. From defendant’s of the Moreover, prose- view, witness. Cooke was a disinterested sufficiently- use his cross- report found reliable to cutor of defense witnesses. examination 2150, 95, 99 60 L.Ed.2d 442 Georgia,
In Green v.
U.S.
S.Ct.
separately for
(1979),
his
were tried
co-defendant
738
Green
guilty
death.
and sentenced to
rape and murder and were found
present
sought
to
sentencing proceeding,
his
Green
At
Pasby,
for the
at
testimony
had testified
State
of one
who
had admitted
the co-defendant
co-defendant’s trial that
Green’s
court
being
victim. The trial
excluded
the one who shot the
argued
hearsay.
prosecutor then
The
the evidence as
evidence of the circumstances
the absence of direct
had
crime,
it was
defendant who
it could infer that
2151,
at
L.Ed.2d at 740.
at
shot the victim. Id.
S.Ct.
sentence,
death
Supreme
vacated the defendant’s
Court
Id.
finding
testimony
both relevant
reliable.
proffered
at
S.Ct.
Green controls this case. Cooke’s profile of largely defendant was corroborated those of the defense expert Further, witnesses. Cooke would have had no ulterior *68 preparing in report And, motive a to favorable defendant. as notes, prosecutor defendant report found the sufficiently reliable to use his cross-examination of defense witnesses. distinguishable This case is from Long, supra, State v. 119 N.J. 439, 435, 575 A. 2d sought which defendant to introduce behalf, letters written on his report because here the to be introduced into product expert evidence was the anof witness by retained the State. defendant offers evidence “[W]hen [the] factor, of mitigating a any concerning doubts admissibility must be resolved in favor the defendant.” Savage, State v. supra, 638, (citing Davis, N.J. at 577 2d supra, A. 455 308). Thus, N.J. at 477 2d concedes, A. as even the Court ante at 610 A. 2d at Dr. report indisput Cooke’s was ably probative. relevant and
Augmenting the harm by caused the exclusion of Dr. Cooke’s report is the trial ruling court’s additional report that the could not be used the defense to cross-examine expert the State’s witnesses. The State itself used Dr. report Cooke’s to cross- experts examine defense about Dr. Cooke’s Bey conclusion that did not organic syndrome, suffer from brain but the defense corresponding was denied a opportunity. Why defendant was not allowed to expert, Michals, cross-examine the State’s Dr. about Dr. Bey’s Cooke’s conclusion that personality develop- to attack tendency to to lose control and ment contributed his mother-figures is difficult to understand. agrees rulings on the use majority
The that the trial court’s evenhanded, report been more but declines of the could have basis, was not finding on that that defendant’s case reverse A. 2d at 831- 592-593, by the error. Ante disadvantaged having majority disparate treatment as explains The 832. testify. on belief that Cooke would based the trial court’s been belief, however, explain why does not the State That theory report support its of defendant’s allowed to use the using it condition, prevented from while defendant was mental present his view of evidence. experts all who testified report The was circulated to Cooke first expert he had it. The and each testified that reviewed during prosecutor’s cross- report of the came mention witness, expert Kay. Dr. examination defense’s Kay questions based Cooke’s prosecutor asked number on to defendant did not indicate conclusion that tests administered re-direct, explored Kay’s damage. defense counsel On brain findings, Kay not discuss knowledge of the other but did re-cross, prosecutor profile. On psychological Cooke’s disagreement Kay and Cooke again emphasized between re-redirect, brain-damaged. On whether defendant was over Kay: counsel asked defense reading Dr. familiar with or recollect from that portion Are your Q. you he his of Mr. Bey’s describes as conceptualization person- Cooke’s which report *69 criminal as well as the of his behavior? development explanation
ality pages of the was in the the latter report? Do recall that [sic] you objection his when prosecutor objected, but The then withdrew silently only Kay have she intended to counsel said defense. testify report and then portion relevant of the Cooke read the agreed disagreed with it. Defense counsel he about whether report, asked him Kay pages two and directed last conceptualizations by Dr. Cooke agreed he with “those whether they portion gave you?” Kay responded that I just seemed “reasonable.” Dr. expert Young,
Defendant’s next witness was who testi- report. Young he fied that had reviewed Cooke’s testified objection agreed that he Dr. without with Cooke to extent might that defendant from “a personality suffer disorder of Later, however, might have antisocial features.” when Young began to discuss Cooke’s observation that the victim enough was a old and woman be defendant’s mother Cooke’s hypothesis anger concerning defendant’s and resentment to- mother, prosecutor’s ward his objection. the court sustained witness, Michals, briefly The State’s rebuttal Dr. referred to findings by Kay some arguably both Drs. and Cooke that were neurological impairment, indicative of but characterized those findings “really cross-examination, as soft.” On defense coun- sel report, asked Michals whether he had reviewed Cooke responded affirmatively. prevent- which he But the trial court ed questioning defense counsel from Michals about Cooke report. no principled
There was reason to allow cross-examination of Kay report. but not Michals Kay with Cooke Both report, Michals had reviewed the neither but had ruled on it in forming respective diagnoses. their The prosecutor cross-ex- Kay report though amined with the Cooke even the witness had Michals, least, referred to it in direct his examination. report during had made brief to the reference Cooke his direct examination. Yet trial court still did not allow defense counsel to use the report cross-examining him. report certainly
The case, Cooke was relevant to defendant’s sufficiently clearly reliable. The trial court erred in evidence, excluding it from limiting and erred further in its use purposes of cross-examination.
C The Court’s that the report conclusion exclusion of the placed the limitations on its use prejudice did not defendant is perplexing. most majority concludes that the error was
643
produc
because,
clearly capable of
says, it
not
it
was
harmless
591,
The
In Brennan Appeals Oklahoma Court Criminal (Okla.Crim.App.1988),the reversible error at the trial court had committed held that the by failing to consider sentencing proceeding capital hospital psychiatrist report by a State prepared a released, pose continuing defendant, probably would if report cumu- argued that the society. The State threat to along similar expert testified own had the defendant’s lative as argument: rejected the The court lines. *71 Characterizing mitigating harmless, excluded evidence as cumulative and thus where the the evidence defendant was allowed to was implausible present self-serving, such the sentencer would discount it as the and naturally was excluded evidence from a more disinterested witness who would naturally given greater weight. Arguably, sentencing judge be the have may perceived gun defendant’s as a hired [the toward expert] favorably predisposed appellant, while Dr. as a State have been as Garcia, may more employee, perceived objective and thus more of belief. We cannot conclude that worthy confidently mitigating the excluded evidence would have had no improperly appreciable
effect
the
the
and therefore
sentence of death is invalid.
upon
sentencer,
(citation omitted).]
[Id.
at
majority
testimony
The
Dr.
dismisses
Cooke’s
as cumulative
recognizing
evidence.
Although
Ante
aggression was not to the of Even if certainly necessary purpose robbery. identifying he to kill wanted them them from him to the prevent police, aggression level of was brutality unnecessary. generalized psychological profiles Unlike the other de- experts report fense Dr. explicitly Cooke’s linked defendant’s particular crime. of women to abused childhood and hatred the, report in the was not Although information contained report con- flattering, recognized that the and defense counsel information, “good directly probative it is and bad” tained both Moreover, mitigating factor. as the emotional disturbance observes, prosecu- opinion Dr. refutes the Cooke’s defendant prevent suggestion killed the victim to that defendant had tion’s police. reporting her from him the by keeping the favor- Another indication of the harm created opinion witness from the able of a disinterested argument de- closing prosecutor’s characterization *72 guns.” argued dur- prosecutor The fense witnesses as “hired diagnosis his to fit ing that Dr. Pincus had tailored summation on the “hired prosecution’s reliance defendant’s case. The a importance of disinterested gun” theme underscores the greater weight to jurors likely given have The would witness. by gave nonetheless similar expert procured the State who an Skipper, expert testimony of witnesses. to that defendant’s 9; at supra, 476 U.S. at S.Ct. at L.Ed.2d Brennan, potency supra, The of both the at 1386-87. P.2d messenger be dismissed as message excluded cannot majori- The impact jury’s no on the deliberations. having had merely report cumulative the excluded as ty’s description of background groundless unjusti- of defendant’s evidence sentencing right was to a reliable decision fied. Defendant’s undeniably its by thwarted exclusion. concerning Bey’s testimony Patricia
Nor would
given that the
report
Dr.
cumulative
upbringing render
Cooke’s
eliciting
testimony.
effectively
her
precluded from
defense was
too,
finds error in
trial court’s restriction
majority
Here
evidence,
mitigating
admissibility of
and reliable
on the
relevant
Ante
prejudice.
defendant suffered no
concludes that
but
permit leading
court’s
The
refusal
Consistent with the ethos that the mitigating admission of permissive, evidence should be leading questions flexible and Bey permitted Ms. should have been responses because her yielded have would reliable and mitigating relevant evidence. purpose mitigation defendant’s case in capital in a sentencing hearing supply is to complete with as picture possible as of defendant so that it can fully make as possible. informed a decision as purpose That was frustrated by rulings here restrictive questions on the form of posed to an eyewitness participant to and in defendant’s troubled childhood. error, prejudiced
That defendant and that it was *73 clearly capable sentence, of affecting plain is when that analyzed error is proper under the of standard review.
D presented strong mitigation. defense a case in In addi- members, family presented tion to experts it three who testified at length about difficult circumstances of defendant’s child- resulting hood and his despite mental Yet disturbance. all that testimony, only jurors mitigating c(5)(a)(that two found factor defendant was under influence of extreme mental or emo- disturbance), tional jurors c(5)(d) and no mitigating found factor
647
intoxication).
(defendant’s
One or
mental disease or defect
weight to the
jurors might
given greater
of
have
more
clearly
its source to be a
mitigating
they
evidence had
believed
only
expert,
expert
by the State.
objective
an
retained
Because
a
verdict for
had to reach
different
juror
one
would have
spared
penalty, such doubts
the death
defendant
have been
in favor of defendant.
must be resolved
report
of the
court’s exclusion
evaluating
whether the trial
error,
sight
of the
has
of the nature
harmful
the Court
lost
permit
court to
the defense
The refusal
the trial
core issue.
evidentiary
report
collides
any
use
Cooke
to make
sentencing
must be
directly
principle that the
decision
with the
information. Such
based on the full breadth
available
teachings:
that follow its
mandate of
and the cases
Lockett
302,
2934,
109
Penry
Lynaugh, supra,
v.
492 U.S.
S.Ct.
e.g.,
393,
256;
481
107
Dugger,
v.
U.S.
S.Ct.
106 L.Ed.2d
Hitchcock
Oklahoma,
(1987);
1821,
Eddings
supra,
v.
455
Ill
permitted
Defendant contends
that
court
the introduction
supported
proffered
none
aggravating
evidence
supported
aggravating
factors but
several
factors that had not
charged
been
and could
charged.
not have been
The admission
evidence,
continues,
of that
he
“diluted the constitutionally
required narrowing
charged
function of the
aggravating
subjected
punish-
factors and
cruel
and unusual
[defendant]
majority
ment.” The
agrees with defendant
insofar as he
admitted,
claims that the evidence at issue should not have been
but it then concludes
erroneous admission of that
596-598,
was
evidence
harmless. Ante at
At sought the defense to limit the evidence that would be used in support proffered State of the two aggravat- factors, ing c(4)(a) c(4)(g). Specifically, sought counsel “lurid, graphic descriptions” exclude of the two murders. The trial piece court decided to rule each on as it was offered into evidence. The language legisla- court then discussed the history 2C:ll-3c(2)(f), tive ruling N.J.S.A. the State could Cheryl adduce more than Alston’s death certificate or “the mere cause of her showing death” in “the manner and mode of death” but could “not introduce all the circumstances surrounding Cheryl Alston’s murder.” The court then held *75 the Defendant “jury must determine anew whether the during of assault the course robbery committed and/or sexual Finally, ruled of Carol Peniston.” the court the murder assault and judgments the of conviction sexual because binding jury, the introduce robbery were not on the State could attempt commission of or commit evidence of defendant’s robbery Peni- during the murder of Ms. sexual assault and/or ston. examiner, Becker, in detail his the described
Dr. medical Alston, Cheryl prior to which defense counsel of examination registered objections: twice penetrating of the left face blunt trauma with wounds The revealed multiple fractures of the nasal the left side of the with nose, face, the eye, palpable
bones. and the the around the the maxilla or cheek bones The orbits or bones eyes, jaw the mandible or bone. large of the the center the head. forehead, There was a laceration of Measuring or about two and a two and a half centimeters six centimeters by exposing the of the skull. one inch and frontal bone half by the and the left also showed a diamond The route of nose also showed eye * * * penetrating at its base. lacerated wound with fractures ... shaped ' * * * * * * * * its also showed a out of socket and inward, The left was eye pushed penetrating it. wound with fractures around encircling and of neck revealed horizontal abrasions The interior surface the in neck. surface and also the the entire anterior partially posterior also of the linear contusions chest, The —there was—there were lesions centimeters two of the them measured twenty-seven anterior chest. One [sic] one and a half That’s about ten inches three four centimeters. by by point large another similar contusion mea- contusion, and beneath this inches; eight length suring in width. and centimeters four centimeters #*$$$$** blood; and clotted abdomen contained three hundred cc’s liquid right involving both the and left to a laceration of the liver both
this was due of the liver. lobes hemorrhage of the left small amount of apex There was also a through- major blood which heart, which chamber ventricle, pumps out the body. contusions were lacerations and abrasions and All the lesions of the face, were the main all the facial bones and those with fractures of associated findings. Dr. Becker also testified that wounds were consistent with being two-by-four, struck awith which had been found at the scene, body hospital that Ms. Alston’s was received except Finally, nude for a brassiere tied around neck. he opinion testified that cause of death his had been “as- addition, strangulation.” said, phyxia due to he “there were hemorrhage skull fractures with cerebral laceration of the hemoperitoneum peritoneal liver with or blood in the or abdom- cavity.” inal *76 2C:ll-3c(2)(f) provides part:
N.J.S.A. in relevant “Evidence by regard offered the with State the establishment of ... c(4)(a) [aggravating may identity age factor include the and of ] victim, the the manner of and if relationship, any, death the the victim to Judiciary the The Senate Committee defendant.” provision explains c(2)(f) Statement to that “to seeks avoid turning sentencing proceeding the a into second trial the previous case and at the provide same time to the with prior some information about the conviction.” Senate Judiciary Committee Statement to Senate Bill No. at 2. Erazo, (1991),
In
State
594 2d 232
A.
defense
stipulated
had
admission
penalty-phase
counsel
to the
of a
report
redacted autopsy
prior-murder
of a
autopsy
victim. The
report
only
multiple
“described not
the
stab wounds as the
death,
wound,”
cause of
but also the details
each
and
human-body
contained a
“diagram showing the location of the
appeal,
wounds.” Id. at
653 had maggots patently become infested with irrelevant and improper. depictions
The State’s vivid
of the two murders almost cer
tainly
designed
impassion”
were
to “confuse or
jury,
plainly
irrelevant emotional considerations with
“intertwine[d]
Williams,
393, 447,
relevant evidence.” State v.
113 N.J.
(1988) (Williams II) (discussing victim-impact
A.2d 1172
evi
dence);
Pennington, supra,
see also
IV incorrectly The Court believes that the trial court instructed jury respect sentencing options with to its for the Peniston murder, arguments but it also concludes that counsel suf jury options. According ficed to make the aware of those Court, defendant, given if life understood that sentence, imposed would serve a sentence to that consecutive ineligible parole for the Alston murder and would until be eighties. I he reached his late Ante at 610 A .2dat 835. agree improperly, disagree I that the was instructed but *79 arguments
with the Court’s conclusion that of counsel sufficed to render the error harmless. dire, determining
At voir the court instructed the that in murder, jurors’ the sentence for the Peniston alternatives thirty years parole ineligibility. were death or life with of The jurors they imposed were told that the sentence in would be prior addition to defendant’s sentence for murder. With no court, by the prosecutor intervention either the or defense juror counsel further mentioned to each that if sentenced life imprisonment, seventy defendant would face a minimum of years prison in for the possibility two murders before the of parole. jurors during
Certain the voir dire had indicated forty-year additional consecutive term would influence their instance, juror Harrington decisions. For when Robert asked if he could if jurors vote for life even the other eleven death, could, for replied voted he that he “because the alterna- years imprisonment parole tive is 70 of possible. with no So punishment demonstrate, is severe.” The record does not however, jurors that all were aware of that alternative sentenc- ing possibility nor does it demonstrate that those who were they aware of it understood how could consider it. day
The jury, before the case was submitted to the defendant request regarding made a written charge. Defendant’s proposed charge explained serving would have that he was prior carrying forty years parole sentences ineligibility, of that a life term in returned this case would be added to sentences, “meaning other that defendant will have spend years prison at least eligible before he is for parole.” The request, court refused that telling instead jury on several occasions that its alternatives were death or life parole with no thirty years respect at least with to the murder of Carol Peniston. The verdict sheet reiterated the court’s instruction. charge, arguing objected
Defense counsel to the court’s effectively life the court should have instructed that a sentence yield seventy years parole ineligibility. at least of would stating retrospect it objection, court overruled the possibility period parole extended believed that the an jurors ineligibility conveyed should not have been to the “be- always appeal cause Alston-murder is on [the case] possibility getting may So that is—that not be reversed. *80 serving any on that time conviction.” capital-murder jurisprudence
It is axiomatic in
that the sen
adequately
respect
with
fully
tencer be
aware and
instructed
625,
Alabama,
sentencing options.
447
100
See Beck v.
U.S.
2382,
(1980). Reliability
392
demands that a
65 L.Ed.2d
S.Ct.
Ramos,
v.
jury not be misled about
law. See California
992, 103
3446,
(1983);
77
1171
v.
463 US.
L.Ed.2d
Stewart
S.Ct.
1486,
Cir.1988),
(11th
Dugger, 847 F.2d
1491
vacated on other
Cir.1989),
denied,
(11th
The Court
error in the trial
and finds
requested instruction
giving the
that the
goes on to state
ruling,
then
but
Court
court’s
presented to the
light
information
error was harmless
arguments by
today,
have never said
by counsel. Until
we
argu
Lawyers’
instructions.
proper
counsel can substitute
accept
are free to
arguments.
Jurors
precisely that:
ments are
contrast,
By
a court’s
they wish.
reject arguments as
inherent differ
Because of the
are authoritative.
instructions
“arguments by
lawyers
judges,
played by
roles
ence in the
Tay
court.”
by
instructions
substitute for
counsel cannot
1936,
488,
at
at
98 S.Ct.
Kentucky, supra,
U.S.
lor v.
Butler,
noted in
v.
477. As
Francis
State
at
Justice
L.Ed.2d
“The criminal law cannot
143 A. 2d
supra, 27 N.J. at
jury is
efficiently if the
allowed
justly or
be administered
proscribe
a
conduct the law intended
speculate as to what
by the rule reflected
all
I continue to abide
specified crime.”
performance of the court’s
previous cases: the “faithful
of our
jury’s guidance and instruc
expounding the law for the
duty of
issues.”
plain
exposition
clear
State
requires
tion
II,
914;
supra
Green,
Bey
430 A.2d
see
supra, 86
169-70,
Moreover,
sought
defendant
purposes
to use the evidence for
very
proposed by
different from those
the defense in Biegen
IV,
wald
in which the trial court
using
barred defendant from
his other less-than-death sentences for murder to show that
juries
given
other
had
the opportunity
impose
been
the death
penalty
imposed
1, 49,
but had not
it. 126 N.J.
658
“
887).
168,
.2d
Constitution
supra,
N.J. at
A
‘[T]he
require specific and detailed instructions ... with
does not
circumstances,
long
mitigating
aggravating
so
as
respect
possibility
jury
no
that the
misunderstands
there is
reasonable
sentencing
capital
procedure
role in the
or misunderstands
its
”
mitigating circumstances.’
meaning
and function of
Id.
141-42,
II,
(quoting Bey
supra,
asking following question: Bey “Is Mr. ever [sic] years?” Apparently, for Parole in the next 70 some time (how clear) elapsed much is not before the court met with question. argued counsel to discuss the Defense counsel that should be informed defendant would be eligible parole seventy years. responded for The court accurate, necessarily as convic- that would not be appeal. During murder still on tion for the Alston *83 colloquy (spanning pages), three-and-a-half the court officer jury informed the trial court that they “has a verdict and don’t need an jury brought answer.” The into the court- room, following and the court colloquy jury had the with the foreperson: Harrington, THE COURT: Mr. a submitted for me to answer. you question eligible “Is Mr. ever in the next Bey parole seventy years.” That was the correct? question,
THE FOREMAN: sir. Yes, THE And I COURT: before answered advised the Court your question, you had a verdict and didn’t want this is that you answered, you question correct? THE FOREMAN: That’s correct.
THE COURT: well. Very foreperson
The then jury’s announced the verdict. verdict, Following following colloquy ensued between the court and defense counsel: MR. McCAULEY: The record reflect knocked should Jury initially
indicating had a around two o’clock. The did come on Court they question the bench until three sat there for an hour and a thirty. They half, essentially ignored. The was never question answered. going The had to do with whether he was to have a question seventy year ineligibility. period parole significant significant I think that was I think that’s a factor question [sic]. and in their deliberations as to what an is. appropriate penalty To let them sit there for an hour and a half— THE COURT: Just a minute. 2:37.
MR. McCAULEY: Then
watch was off. An hour.
my
THE COURT: Less than an hour.
coming
Less than an hour because between then and
on the
I also
bench,
my
got message
depending
from the Court Officer that
had a verdict
they
upon—
had a verdict.
they
saying
MR. McCAULEY:
close
Well,
minutes,
to an
what I’m
fifty-six
hour,
significant.
and I think that’s
That that
was not answered.
question
slightly
Thus
elapsed
less than an hour
between the time the
jury
question
asked the
and the time it delivered its verdict.
apparently
jury’s
The trial court itself
believed that the
verdict
depended
question.
on its answer to the
State,
(1977),
Ga.App.
about The court bailiff 2:05. conducting in another trial would that he was voir dire but breaking point. question it reached a suitable answer when p.m. The at 2:30 At no time did the jury returned a verdict judge provide with additional instructions. Id. appeals 667. court of held that the trial court S.E.2d jury requests the had committed reversible error: “When the recharge any point, duty them it is the court's to do court on *84 recharge as he judge so.” Ibid. That “the intended to as soon change jury “the returned a verdict could” did not the fact that upon incomplete understanding an of the presumably based relevant law.” Ibid. us, question
In the case the fact that the was asked before confused, clearly jurors they may and that indicates were weighed aggravating mitigating differently have factors eligible parole on defendant would be for after based whether thirty seventy years. The trial court’s failure to instruct the jury eligible parole on defendant be was when would error, respond jury’s question to the reversible but its failure entirely was inexcusable. recognize
I
reached
that several courts have
conclusions
Barnes,
opposite
E.g.,
to the one I advocate.
United States v.
(5th Cir.1978);
State,
I jury’s impressions conclude of the overall respect sentencing consequences, with to alternative it did not have a clear authoritative instruction from the trial court. We had a correct jury on speculate therefore cannot whether Those considera- understanding of the relevant considerations. sentencing judg- vitally directly on the ultimate tions bear sure that deserve to die. We cannot be ment: does defendant had it responded with the death sentence jury would have court. accurately correctly by instructed been V way a sentence again has once found a to sustain The Court capital dismay even the staunchest friends of death. It must reasoning by the the maze of followed punishment to witness Court, understandably shocked Court to reach that result. The princi- killing, objectivity and brutality abandons has sentence. The Court ple to defendant’s death sanction super-jury. unmistakably, come to act like a subtly, but sentence, arrogated to itself the confirming it has this death Thus, community. it right express the conscience of the necessarily have determined that the would concludes victim, though kill his even defendant intended to charged. properly equate only jury’s verdict can with The conclusion that the *85 indistinguishable from the Court’s finding kill is an intent to Moreover, de- intended to kill. judgment that defendant own in admonitions uttered premonitions and spite the Court’s own in and fairness concerning the need for balance other cases excessively evidence, disregards the the Court presentation of relating to defen- gory evidence inflammatory nature of passes off the Additionally, the Court murders. dant’s two court’s by the trial the defense occasioned patent unfairness to to elicit critical evidence opportunity fair refusal to allow it a for evidence was the basis mother. That from defendant’s own concerning mental experts opinions of all the The Court condition, his defense. the core of and emotional defendant effec- in the refusal to allow nothing harmful finds report mitiga- use of the State’s in expert own witness’s tive report by tion—a the State and validated was vouched through prosecutor’s own use of it on cross-examination. Finally, despite repeated warnings juries fully must be and adequately sentencing, informed on all factors relevant to anything Court does not find harmful in the lower court’s likely spend failure to inform the that defendant would seventy years prison next in of his life were he not sentenced to death. required
I have too often been to state that the tensions capital-murder prosecutions inherent in of dual constitu- —borne tional juries prosecutors objectively mandates that and be firmly guided in capital the exercise of their discretion and that fairly light be sentenced defendants the individual charac- present give unpredictable teristics their cases rise to — typifies inconsistencies. This irreconcilable case those manifold posed by inconsistencies. It confirms the insoluble dilemmas capital-murder cases and the inevitable arbitrariness of their experience end results. The here failings confirms that those palliated by judicial supervision cannot be by overcome appellate review.
Justice opinion. O’HERN concurs Point II of this O’HERN, J., dissenting. explained Gerald,
As the Court in State v. 113 N.J. (1988), penalty A.2d 792 when the superimposed death on the Code of Criminal Justice in specific no reference was made to which of the forms of murder two embraced eligible. However, legisla N.J.S.A. 2C:ll-3 would be death history tive of the Act and constitutional concerns convinced the only killing Court that an eligible. intentional was death As the sponsor stated, “using of the bill the familiar forms known to lawyers Jersey, common-law in New a defendant faces death- penalty proceedings only after he has guilty been ‘found unani mously beyond degree murder, a reasonable doubt of first ” willful, premeditated Dixon, murder.’ State v. 125 N.J.
663
Act:
(1991)
Capital Punishment
(quoting
A.2d 266
at
Judiciary Committee
the Senate
Hearings on
S.
Before
capital
in a
trial the
Hence,
ruled that
(1982)).
in
we
Gerald
knowingly or
had
the defendant
determine whether
jury must
murder). 113 N.J.
(capital/first-degree
caused death
purposely
evidence,
by the
69-70,
required
If
That killed knowingly purposely or had defendant terms of whether inflict murder) of intent to mention without (capital/first-degree murder) is correct. (SBI/second-degree bodily injury serious jury: the court told the example, For charge regard to the to make in for essential determination you killing or committed purposely is whether Marko Bey in this case murder to find In order knowingly you these terms to as I have defined you. guilty a reasonable must establish beyond of murder the State Marko Bey killing committed Marko Bey Peniston was of Carol one: That doubt knowingly terms I have defined those as done that it was two, purposely and, for you. *87 (cid:127)664 addition, jury sheet was in terms of
In the verdict framed murder, knowing purposeful with no mention of serious- or bodily-injury murder: charge Marko 1. How do find as to the that on Question you April knowingly causing murder or the death of Carol committed by purposely
Bey Peniston his own conduct? However, charge jury: the told the at the outset of its court charged In the First Count of the Indictment the defendant is with murder. in the reads follows: And the of the First Count Indictment as pertinent part on the 26th of 1983 in the of Park did That Marko Bey, day April, City Asbury commit the crime of murder in that the said Marko did or Bey purposely bodily injury resulting knowingly cause the death of or serious in the death Peniston in that the said Marko committed the homicidal act of his of Carol Bey own conduct. killing Murder is the unlawful of one another or person by purposely knowingly. killing A who commits a does so when it is his person purposely bodily injury resulting object to cause death or serious in death. conscious A killing knowingly who commits a does when he is aware that he so what person bodily injury resulting doing will cause death or serious in death. In is killing knowingly, either whether the is committed or case, is, purposely bodily injury, causing design or serious the death it must the or be within of the defendant. contemplation [Emphasis added.] proceeded bodily injury,” specifi-
The court to define “serious cally relating killing the definition of Carol Peniston: injury injury Serious means which creates serious risk of death. bodily bodily knowingly. You will note that I have used the words The nature purposely knowledge or which defendant Marko acted toward purpose Bey with jury, Carol fact for to decide. decedent, Peniston, question you, knowledge are conditions the mind which cannot be seen and Purpose can determined from from or It conduct, be inferences words acts. is not only for the or State a witness witnesses who could necessary produce testify
the defendant that his was to cause the death or stated, example, purpose death, bodily injury resulting serious or that he knew that what he was doing would kill death or Peniston or certain to cause her Carol practically bodily injury resulting serious in death. [Emphasis added.] jury, if way having
There is no to determine heard times several that the definition of murder includes the know- ing purposeful injury bodily infliction of serious that results death, capital understood that to be definition of murder portion or whether its limited to the deliberations were correct addition, to conclude if the Court were charge. even adequately conveyed to the conflicting instructions that those first-de defendant of it convict requirement jury instructed murder, to have the he was entitled gree/capital has murder. This Court of SBI the lesser-included offense on entitled to a lesser-includ that a defendant is consistently held any on which charge if there is evidence ed offense offense. of the lesser-included rationally a conviction could base *88 a trial court should Ramseur, stated that the Court In State v. “ possible offenses ‘all of the charge jury regarding ” 123, 271 facts.’ 106 N.J. reasonably found from the might be Choice, (1987) 98 N.J. (quoting State n. 524 A. 2d (1985)). .2d 833 486 A were of both counsel arguments that the The State contends knowingly or defendant had only in of whether framed terms killed defendant theory was that killed. The State’s purposely identify him. The would unable victim so that she be large defense, however, defendant had consumed stressed that killing occurred drugs and that quantities of alcohol and robbery and sexual of a design during the course without killing was argued that the Although defense counsel assault. offense, theory her lesser homicide felony murder or some a event, any regardless of SBI murder. consistent with was followed argument, jury could have counsel framed how of defendant it to convict that entitled court’s instructions was, as purpose if defendant’s the indictment murder under injury bodily court, death or serious to “cause by the stated resulting in death.” enough more than there was emphasizes that
The State murder. knowing purposeful of to convict defendant evidence undoubtedly shows that of the record argues that a review It to a He took her Peniston. to kill Carol intended defendant he to undress before he forced her where secluded shack chest, break- stomped on her Then he sexually her. assaulted Also, defendant damaging her heart. ing of her ribs four Finally, he gum. lower plate in his victim’s the dental broke used Ms. Peniston’s strangle scarf or belt to her from behind. Thus, the State jury contends that no rationally would have concluded that defendant’s only actions were intended to cause bodily serious injury. problem argument with that is that presupposes we, it appellate as judges, should decide the guilt or innocence capital However, of defendants. under our system law, a must decide the difference between the two forms of murder and whether the defendant only intended to cause bodily serious harm. case,
In this that there enough was more than evidence to charge submit the SBI to the is regrettably self-evident. According to the testimony Investigator Phillip George of County the Monmouth Office, Prosecutor’s after his arrest defendant told him: just bugged I robbed the I got she lady, out, saw I face, saw out of the my her, just car on Sewall walked Avenue, found around, where it was someplace dark, going through light just her bugged There pocketbook. was a and I out. just Somewhere across building, the tracks past Avenue, side Asbury building, building just bugged going through inside the I out, her purse,
went into her coat looking I turned around and she pocket, at me. confession, In his written read to the jury during guilt phase, defendant stated: *89 going through I went in and I started her Then there was pocketbook. one more wallet that I didn’t look at. I it and checked around and picked up I was looking
turned got around and she hitting was at me. I scared and I started moving making her. She fell down. She wasn’t anything. sound or any I had sex with her and left. In his confession defendant stated further that he hit the victim “[f]our, five, know,” or six I times. don’t and that he did not anything use but his hands to strike gave her. Defendant a similar account during his testimony: direct Going through standing her she was pocketbook, her back was door, facing the going through door and I had bent I down, was her pocketbook. I looking
When looked got towards the door she up at me and I scared and hitting I started her struggled and I had sex with her and then I with I her, * * grabbed building her and left pocketbook *. cross-examination, On defendant denied that he had killed the prevent victim to her from identifying him:
667 fact, Bey, you she had seen that woman because killed it a Mr. Isn’t Q. identified, fact? you isn’t that a your to be didn’t want face Now, her, hitting okay? face, No, my I started she seen that’s when A. when far, something her, hitting just shouldn’t on too it I started after went on. have went cross-examination defendant’s Admittedly there is evidence strangle Ms. Peniston: he the belt testimony that used belt, you? don’t You recall the Q.
A. Yes. strangle you Mrs. Peniston? used to The belt Q. A. Yes. deny an intent sum, admit and statements both capital/first-de- Thus, committed defendant kill. whether for the SBI/second-degree murder was gree murder or decide.1 meant strangulation can be emphasizes that majority bodily injury. Ante 579- kill, serious not to inflict
only to Yet, strangulation cases the A. 2d at 824-825. 580, in other 610 Gerald entitled to defendants were has held that Court (1991); 590 A. 128, 2d 624 Perry, 124 N.J. analysis. See State v. 341, (1989). Davis, .2d 1082 116 561 A v. State murder the SBI to submit a rational basis That there was by the fact conclusively established charge is almost here second-degree 1 exists for Examples no rational basis of cases in which dissenting opinion in to Justice Powell’s forth in a footnote murder are set 969, 7, 73, 7, Johnson, L.Ed.2d n. 74 n. 103 S.Ct. 983 460 U.S. 99 Connecticut v. following 823, (1983). pointed cases: White v. to the the Court n. 7 There 842 719, (Fla.) (motorcycle-gang woman State, members stabbed 720 415 So.2d 1055, denied, twice), 103 S.Ct. 459 U.S. cert. and slit her throat fourteen times 172, (Fla.) (defen State, 474, (1982); Arango 175 411 So.2d v. 622 74 L.Ed.2d instrument, wrapped his electric cord around an a blunt dant beat with victim head), mouth, cert. neck, in the shot him twice into his stuffed a towel Mercer, (1982); 1140, 2973, denied, State v. L.Ed.2d 1360 102 S.Ct. 73 457 U.S. companion 1, (Mo.) (defendant strangled rape until his victim S. W.2d 4 denied, pulse), 102 S.Ct. longer 454 U.S. cert. no detect could (1981). explained: no concession "There was Justice Powell L.Ed.2d beyond a any in each is clear cases. Yet intent of these intent to kill in Johnson, S.Ct. supra, at 99 n. 460 U.S. doubt.” Connecticut reasonable *90 7, 7. at 842 n. n. 74 L.Ed.2d at 983 668 aggravated manslaughter
the court the offenses of submitted By definition, manslaughter jury. jury and reckless to the charged could not those homicide offenses if had be with there jury not been evidence from which the could have concluded kill. the defendant did not intend to Because the evidence presented jury plausible at least two with bases conviction, bodily murder the intentional infliction of serious injury resulting (SBI/second-degree), in death or the intentional killing by strangulation (capital/first-degree), the court did not charge capital on an essential element of murder when it failed jury only to inform the the latter form of murder was eligible. jury death When a verdict can rest on one of two bases, presume available no court can which basis it is. Bollen States, 607, 613-14, 402, bach v. 326 United U.S. 66 S.Ct. 405- 06, 350, (1946). case, 90 L.Ed. 354-55 In this the error could not be considered harmless because there was evidence that SBI/second-degree would have sustained an murder verdict. 1023, (3d Cir.1988) Vujosevic Rafferty, See v. 844 2dF. (failure jury aggravated to instruct on assault when there was support evidence to such an instruction and the instruction was error). requested was not harmless
II
majority
disagree
charge
does
did not
adequately
capi
relate to the
the difference between
tal/first-degree
SBI/second-degree
Rather,
murder.
it rea
sons that the error is
harmless
the circumstances of this
581,
case. Ante at
We
not wish to see a second retrial of this
but
may
there
no
ifway
be
other
the sentence of death is to be
Despite
carried out.
much recent debate about the harmless-
doctrine,
Clark,
3101,
error
see Rose v.
U.S.
S.Ct.
(1986);
Illinois,
Pope
L.Ed.2d 460
481 U.S.
107 S.Ct.
(1987),
Supreme
669
v. Illi
Pope
In
is harmless..
element of an offense
essential
nois,
suggested
prior to
that cases
members of
Court
five
Rose,
if
never
that a
can
stand
“indicate
conviction
which
require it
find each
provided
jury
do not
to
instructions
e.g.,
proof,”
of
proper
of the crime under the
standard
element
384,
696,
Bullock,
376,
689,
474 U.S.
S.Ct.
106
88
Cabana v.
704,
longer
(1986),
good authority after
715
are no
L.Ed.2d
7,
95 L.Ed.2d at
7, 107
481 U.S. at 503
S.Ct.
n.
at
n.
Rose.
1922
v.
concurring
in
Carella
opinion
n.
447
7.
Justice Scalia’s
105 L.Ed.2d 218
263,
2419,
California,
109 S.Ct.
491
U.S.
Bullock,
for Cabana v.
vitality
(1989),
partial
a
reflects
least
at
Carella,
689,
supra,
88 L.Ed.2d 704.
376, 106
474 U.S.
S.Ct.
mandato
auto-theft conviction because a
the Court reversed an
charged
jury.
ry
presumption
incorrectly
to the
conclusive
265-66,
2420,
105 L.Ed.2d
at
at
Id.
S.Ct.
491
at
109
222.
U.S.
analysis
permitted
in
The
would have
harmless-error
Court
mandatory
presumption.
assessing
of a
conclusive
the effect
266-67, 109
2421,
Justice
Id.
S.Ct.
105 L.Ed.2d
at
at
at 222-23.
majority’s assessment
expressed
Scalia
his discontent with the
mandatory
a
con
of the
doctrine in relation to
harmless-error
stating:
presumption,
clusive
That
Louisiana,
over the life
Id,,
about the
198
430
against
require express
its officers’ participation
whelming
said:
assuredly
direct verdict
Court did
Carpenters
way
US
(1968).
at
constitutional
is why
156,
564, 572-573,
him is so
in which law should be enforced
the evidence that authorization
insist
exercise
20 LEd2d
391 US
It is a structural
the Court has found
treat
authorization
upon
overwhelming
United
liberty
right
the State.
of official power
145,
51
as harmless a
491,
observance
LEd2d
155,
States,
in an antitrust conspiracy
88 SCt
a
20
guarantee
See
642,
as to establish
citizen
LEd2d
330 US
ratification
it
1444,
trial
of this
constitutionally impermissible
United
97 SCt
—a
to one
491,
embodies “a
that “reflects]
45 Ohio
reluctance
instruction that
States v. Martin Linen
1349
guarantee even when the evidence
or ratification
88
justice
judge
guilt
hold a union criminally
SCt
LEd
[1355]
Ops2d
beyond
1444,
Duncan v.
administered.” to entrust
profound
or
—
(1977).
regardless
198. A defendant
a fundamental decision
to a
the crime.” US 689 [696] cannot cure but whether defendant standards In other concurring).] [Id. verdict was based on facts within the condemned instructions authorization or LaGuardia tion’s conclusive the evidence. There is no agents. charge “No matter how 607, 614, SCt 491 words, participation to the atU.S. (1986). resulting appropriate For a deficiencies 90 LEd Act, guilt [782-83] jury setting “the 268-69,109 47 Stat judge ratification has been found strong from the court’s failure to instruct it to find an element of question 350, 66 SCt through Bollenbach v. United for criminal trials.” (footnotes omitted). Bullock, may 70,] the evidence out S.Ct. at is not whether of such association or jury’s findings not direct a verdict of its correctly 402 474 US such agents by 2421-22,105 [406] way acts____” Id., a may jury according the limited 376, 384-385, in the (1946). “Findings be of an association’s or *92 guilt as to the knowing conspiracy, may L.Ed.2d at 223-24 organization liability be here 88 LEd2d guilt guilty to the 408-409, spelt under whether or innocence of a there must be a made no matter how out of a record, ... procedure for acts of its 704, 91 LEd [the or on actual States, by (Scalia, organiza- 106 a Norris- jury’s judge SCt 326 J., analysis Supreme In a recent of the Court’s harmless-error instructions, respect jury doctrine with Chief Justice Rehn- quist wrote:
we have declined to choose between
a
theory
tional
Leary v. United
(1969);
convict a defendant on an
whether various
submitted to the
the theories
1312
conviction.
California,
Our
proper
L.Ed.2d
[Boyde California,
cases,
(1970).
ground,” Bachellar,
or theories.
see also Bachellar v.
basis,
v.
316,
understandably,
That instruction this preserved under capital element of murder can be an essential I unlikely. Supreme harmless-error doctrine Court’s disposition from the Court’s Gerald therefore dissent issue. opinion. in Part this HANDLER concurs I of
Justice WILENTZ Justices For Justice affirmance —Chief POLLOCK, CLIFFORD, and STEIN—5. GARIBALDI HANDLER and O’HERN—2. For reversal—Justices *93 A.2d 874 FOSTER, RICHARD H. IN THE MATTER OF AN AT ATTORNEY LAW.
August 1992. ORDER having petition Attorney filed a with The Office of Ethics recommending that H. Supreme RICHARD FOSTER Court suspended from HACKENSACK, immediately temporarily be law, appearing; cause practice good temporarily H. FOSTER It is ORDERED that RICHARD law, immediately, and practice effective suspended from the Court; it is further of this until further Order