*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW (I), BEY MARKO DEFENDANT-APPELLANT.
Argued September August 1987 Decided 1988. *5 Smith, Jr., Defender, Deputy K.
James Public and Judith L. Borman, Defender, Deputy argued Assistant Public the cause Slocum, appellant Defender, for attorney; A. Public {Alfred Smith, Jr., James K. Judith L. Borman Robert A. Seelen- freund, Deputy Defender, briefs). Public on the Assistant Prosecutor, Kenny, argued
Alton D. Assistant the cause for respondent Kaye, Prosecutor, County A. Monmouth at- {John torney; Kenney, Alton D. Kennedy James W. and Mark P. Prosecutors, counsel; Stalford, Assistant Joseph Oxley W. Boser, Prosecutors, briefs). and Peter J. Assistant on the Moczula, General, Deputy Attorney argued Boris the cause Attorney Edwards, for amicus curiae Cary General Attor- {W. ney Jersey, attorney; Turi, General of Dorothy New For- G. Deputy General, Menkin, mer Attorney Jeffrey Deputy L. General, Attorney brief). of counsel and on the Herbert I. Waldman submitted a brief on behalf of amicus curiae American Union {Podvey, CivilLiberties Sachs & Caten- acci, Waldman, attorneys; Herbert I. H. Richard Chattman *6 Karpatkin, counsel; Deborah I. and Herbert Waldman and of Chattman, brief). H. Richard on the opinion by was of Court delivered STEIN, J. case, (1988) II),
This and State Bey, (Bey N.J. 123 also today, both pre-jEamseur/Biegenwald capital pros- decided are ecutions. We address certain trial errors in this case and hold Additionally, that defendant must be retried. Legisla- since the punishment capital preclude ture has amended the to statute imposing juveniles, the death sentence on we conclude that resentencing capital this In II Bey barred case. defend- affirmed, ant’s are principles convictions but established in Ramseur, Biegenwald Ramseur and [State 123] v. Biegenwald, require sentencing 106 N.J. a new [State 13] proceeding. murder, Bey felony
Defendant Marko was convicted of mur- der, aggravated assault, assault, aggravated sexual and by County sentenced to jury. death Monmouth Defendant’s Court, 2:2-l(a)(3), appeal right challenges as of to this R. on statutory grounds both constitutional and the application of the penalty death statute due to his status a minor as time of convictions, the offense. Defendant also contests his four asserting primarily that the introduction of his confession at rights, trial violated fifth his amendment that his state and rights impartial jury federal constitutional to a fair and were jury’s potential exposure prejudicial violated to mid-trial publicity. We reverse defendant’s convictions both these grounds. Legislature We conclude that not also did intend provisions for penalty apply the Code’s death to defendants juveniles committed; were who when the crime was the Attor- reasons, ney agrees, General although for different that de- exposed fendant on penalty. retrial cannot be death If murder, again retried and convicted defendant can sen- ranging thirty years imprisonment tenced to a term from life mandatory thirty years. minimum term with a N.J.S.A. 2C:ll-3b.
I 2, 1983, morning April Patrolman Kenneth Early in the Department responded Police Neptune Whritenour directing adjacent him to a vacant lot to the board- radio call the nude in Ocean Grove. Whritenour discovered walk body young, subsequently of a black female identified battered Cheryl loosely Alston. A was around as bra knotted victim’s neck.
Investigators Monmouth County from the Prosecutor’s Office *7 up the victim’s called to the scene found clothes balled bathhouses, nearby, doorway along of one of four abandoned single items strewn A trail with various cosmetic about. footprints body, ran from the bathhouse the victim’s and body Spray “two-by-four” Avenue. A from the towards dented piece wood with on the end recovered as blood was well. night
Alston had last seen the she and been before when her Asbury Park approximately mother returned to their home at a.m., visiting 12:45 after local friends. Alston’s mother had outside, gone sitting while inside the victim remained front of Shortly the house on a concrete embankment. thereafter she disappeared. later, 6, 1983,
Slightly approxi- more on May than a month mately p.m., Neptune the Asbury 5:15 officers from Park and Departments at his Police arrested defendant mother’s Neptune incident, suspected home in for involvement in another briefly the murder of Carol Peniston.1 He was held warrant, police house executed a and while search then Bey suspected does whether 1The record not make clear was also arrest; argument Alston murder at the of his at oral the State acknowl time * * * edged afterthought * * *." that he was Alston as an at for the murder "Iook[ed] transported Asbury Department to the Park Police where he Investigator was turned over to Detective John Musiello and George Phillip County of the Monmouth Prosecutor’s Office. Musiello, rights by Defendant was read his Miranda signed acknowledging a “Miranda card” that he had so been advised. police began questioning Bey about Peniston matter dinner, bathroom, p.m.,
at 5:38 and after for use of breaks cell, gave and an hour of rest in his he confessed and a written commencing p.m. concluding shortly statement at 10:55 food, midnight. before After a second break for Detectives Neptune Edward Green and Robert Adams of the De- Police partment joined George. Musiello and Defendant read- was rights signed vised of his Miranda another “Miranda card” According George, at 12:07 a.m. to Green and defendant rights. indicated that he understood his He was informed that question the officers now wished to him about the murder of Cheryl trial, pretrial hearing, Alston. At the Miranda and at Investigator George initially testified that the defendant “indi- [Alston],” cated he did talk us not want to about it and said anything George “he know about it.” didn’t continued defendant, discuss the matter with and sometime after the room, Bey other detectives left the conceded he had known the night By victim and had seen her the of her death. 1:00 a.m. orally defendant had confessed to the Alston murder. After he Green, George rejoined by *8 and were Detectives Adams and statement, gave signed commencing defendant and a written at approximately concluding 1:15 a.m. and at 2:48 a.m. Prior to taking police again his this statement read defendant rights, signed page and defendant cover of the statement acknowledging rights that he understood his and that he give voluntary wished to waive them and statement. trial, confession, entirety
The read into the record in its at years disclosed that defendant had met Alston three earlier. beach, chance, in They again by night met near the on the question. Bey already smoked six or seven mari- said he had
juana cigarettes night, and had drunk least one forty- at smoking “joint” ounce bottle beer. After another Alston, agreed the two to have sex and walked over to the nearby part: The row bathhouses. statement reads (1) both off. We went inside of one and we took our clothes She her layed got jacket and laid Then I I down on of it. nut and wanted to start top my again just again kissing she didn’t. She we started and I and started [sic ] again hitting got and she wanted to and she started Then I me. dressed stop got and I down to the I I had sand and her the sand. know I beat dropped running. going it. her but I don’t remember how I did Then I remember I was home. I ran down the street behind the Palace and I went then home. I ran Avenue in and I down Lake Park turned down Fisher and I turned on Asbury night. and then to Avenue. Stratford Drummond I home all stayed morning got I woke next and I heard that someone killed. I didn’t know up
who it was that time. I didn’t know that until I saw in it was her it paper. Bey “high” The during statement also reveals claimed to be and encounter that his recollection of some was details flawed. He he had when angry said become Alston declined to have sex him, began a second time and hit did and that he not know * * why “the reason did it *.” [he] held, hearing A as waiver was defendant was seventeen when committed,2 was and the crime Juvenile Court waived jurisdiction pursuant (current 2A:4-48 N.J.S.A. version at 2A:4A-26) 5:9-5(b) (current N.J.S.A. R. version R. 5:22- 2) May Bey “knowing” on 1983. was indicted for (N.J.S.A. “purposeful” 2C:11-3a(1), (2)), felony murder murder (N.J.S.A. 2C:11-3a(3)),3 (N.J.S.A. aggravated assault 2C:12- (N.J.S.A. 1b(1)), aggravated 2C:14-2a(3). sexual assault prosecutor Aggravating served pur a “Notice Factors” c(2), suant notifying to section the defendant that if he were convicted, the penalty attempt State would seek the death was born 2Defendant on and thus was ten of his April days shy eighteenth when Alston was killed. birthday April murder, 3The death murder, and Criminal felony penalty provisions Code are "sec." or convenience, contained N.J.S.A. 2C:ll-3. For "section" a(3)). (e.g., will be used refer to this sec. statute *9 prove vile, murder outrageously wantonly that was or “[t]he torture, or inhuman in that it depravity horrible involved mind, aggravated victim,” c(4)(c), or an assault to the sec. offense was committed while the defendant was “[t]he of, engaged commit, attempt the commission or an * * * flight committing c(4)(g). after sexual assault.” Sec. plea guilty The defendant entered a of not to all counts. pretrial motions, Defendant made several two which are pertinent purposes appeal. for sought this One to bar the qualification” ground “death of the on application penalty the death to a of. defendant who was a minor at the time of the crime would constitute cruel punish- and unusual ment, proscribed by Jersey both the New and United States motion, rejected reasoning Constitutions. The trial court this then-recently-enacted penalty that the death statute “reflected [Legislature’s] perception present public of the state of opinion, as society’s decency.” well as current standard of expressly prohibit imposition Because the statute did not minors, death sentence for but instead made the defendant’s age a factor to in mitigation, be considered the court concluded operation that the statute’s in the case of a minor “would be in harmony society’s evolving decency” with standard of hence not cruel and unusual. sought suppress
Defendant also his confession based regarding various interrogation. assertions the conduct of the argue, point proceedings, He did not at this in the that he had right Investigator invoked his to remain silent George when began interrogating first him about the Alston case. After a Miranda lengthy hearing, testimony at which the of the State’s assertions, witnesses countered defendant’s the court denied disputed motion. The court resolved the factual issues adversely Bey, and ruled that he “was advised of his Mi- randa warnings, that he understood those Miranda warnings intelligently rights, and that he those waived the statement gave [voluntary] regard alleged that he was to the murder * * Cheryl Alston *10 ruling admissibility
The court’s on the of defendant’s confes- trial, range sion narrowed the of issues for as the defense was Bey’s forced to concede involvement in the crime. The State sought to establish that the victim did not consent to sexual time, any relations with defendant and that the defend- purposeful knowing ant in response committed and murder rejection. her The claimed defense there had been no sexual assault, and the defendant’s state of mind fell short of “knowingly” “purposely” because the crime had been com- passion,” marijuana mitted in the “heat of and because and capacity alcohol had reduced his to form an such intent. The jury aggravated court instructed the on the lesser offenses manslaughter passion” and manslaughter, “heat of N.J.S.A. 2C:ll-4, intoxication, on and the defense of but a verdict of guilty offenses, returned charged including was on all four felony murder and murder.
During
course of
trial potentially prejudicial
news
published
articles
in the Asbury
were
Park Press and Red
Register,
County papers,
gave
Bank
local Monmouth
rise
defense
jury
began
several
motions. Before
selection
de-
sequestration
fendant moved for
jury,
impaneled,
once
anticipation of
publicity during
unfavorable
the trial. The court
29, 1983,
Jury
began
denied the motion.
selection
on November
days
and the trial commenced nine
later on December 8. On
the afternoon of
December
near the close
trial testimony,
produced
appeared
defense counsel
articles
six
that had
in the
day
local papers
jury
since the first
selection. Four of these
covering
were articles
the trial proceedings, each of which
pending
mentioned defendant's
trial for the murder of Carol
Peniston,
prior
and one of which also mentioned his
convictions
for robbery
aggravated
Offering
assault.
these articles in
support,
mistrial,
defense counsel moved for a
or in the alterna-
tive for a
dire
inquire
any potential
voir
into
exposure
coverage.
to the
news
trial court denied both
motions,
assumption
jurors
complied
based
its
that the
had
cautionary
with the
regarding publicity
instructions
issued to
court was
impaneled. The
they
since
had been
repeatedly
them
to excite
dire threatened
proposed
that the
voir
also concerned
read the arti-
might prompt them to
curiosity and
jurors’
day,
later that
sequestration motions
Subsequent
cles.
day, were also denied.
guilty verdict the next
following the
sought
prove the two
penalty phase,
In
the State
54-55,
trial,
supra at
cited before
see
aggravating factors
mitigat-
statutory
four
attempted to establish
and the defense
of ex-
under the influence
ing
“The defendant was
factors:
to constitute
disturbance insufficient
treme mental or emotional
*11
c(5)(a);
age
“The
of the defend-
prosecution,” sec.
a defense to
murder,”
c(5)(c);
sec.
“The defendant’s
the time of the
ant at
conduct or
wrongfulness of his
capacity
appreciate
the
law was
requirements
to the
of the
conform his conduct
* * * intoxication, but
impaired as the result of
significantly
prosecu-
the
to constitute a defense to
degree
sufficient
not to
tion,”
c(5)(d);
is relevant to the
“Any other factor which
sec.
record or to the circumstances
defendant’s character or
testimony,
offense,”
c(5)(h).
penalty-phase
At the close of
sec.
any
jury
preclude
“to
sequestration of
the court ordered
* * *
might prejudice
or indirect communication
direct
denied a
The Court also
the defendant or the State.”
either
publicity appearing
prejudicial
mistrial motion based
second
following day
jury re-
first such motion.
since the
aggravating factors and three of
finding both
turned a verdict
factors,4
neither
finding further that
mitigating
the four
mitigating factors.
outweighed by the
aggravating factor was
defendant to death.5
Accordingly, the court sentenced
capacity
involving
jury rejected
mitigating
due to
factor
reduced
4The
c(5)(c).
Sec.
intoxication.
c(3)(a)
the court
mandated that
trial section
5At the time of defendant’s
aggravating
jury
or more
found one
a defendant
to death if the
sentence
mitigating
outweighed
one or more
not
factors and found that it was
c(3)(a)
require
court
Subsequently
that the
was amended
factors.
section
that the
determines
unless
sentence the defendant to incarceration
II
Defendant contended in
pretrial suppression
his
motion that
(1) his waiver of
rights
Miranda
knowing
was neither
nor
(2)
voluntary,
police
right
had violated his
to cut off
questioning
they
when
requests
speak
denied his
Ed-
Johnson,
ward
family
a friend of the
charge
left in
of defendant
and his brother while their
town,
(3)
mother was out of
statements themselves were involuntary. The
reject-
trial court
arguments.
ed each of these
The court refused to credit
testimony
defendant’s
concerning alleged requests to contact
Johnson, and ruled that his waiver
rights
of Miranda
was
knowing
voluntary
and that
the confession itself was
voluntary
appeal
as well. On
challenges
defendant
the latter
rulings,
two
and in addition contends the evidence establishes
that he
right
invoked his
to remain silent
during
twice
course of the Peniston and
interrogations
Alston
at 8:30
—once
p.m.,
go
when he asked to
lie down and think about what
happened, and a
a.m.,
second time at 12:08
when he refused to
discuss the Alston
police
murder —but that the
failed to “scru-
pulously
right,
honor” such
required
as
by Michigan v. Mosley,
(1975).
U.S.
Defendant’s concerning the police conduct of the during the phase Peniston interrogation (roughly 5:40 p.m. midnight) until are dealt with in State v. Bey, 112 N.J. (1988) II). 133-43 (Bey The trial findings court’s and the record police demonstrate that complied prophylac- tic dictates of Miranda. Defendant twice right waived his to remain silent and to attorney present, have an and defendant’s factor(s) aggravating outweigh factor(s) mitigating beyond a reasonable £.1985, Biegenwald, doubt. (1987). c. 178. See State v. 106 N.J. 53-67 Michigan Mosley, rights were not violated. under II, supra, 112 N.J. at 143. Bey State v. phase Alston the interro- regarding claims
Defendant’s however, gation, giving are matter. After a written another case, fed and read- in the Peniston defendant was statement Musiello, Adams, rights. vised of his Present were Detectives Investigator George. At the Miranda Green, hearing, and ensuing Investigator George described the situation and events examination: direct read the card to Mr. [Miranda] Who Q. Bey?
A. I did. rights? he understood his Did Mr. indicate that constitutional Q. Bey A. he did. Yes, sign he that card? Did Q. he did. Yes,
A.
[********] him him at it was that to advise time, Did tell that what wanted you Q. you about? Yes. A. What was that?
Q. The murder of Alston in A. Cheryl Neptune Township. crime? Mr. indicated he to about that you Q. Bey [would talk] A. he did. Yes, involvement in that offense? Did he indicate time
Q. any A. he did. Yes, 12:07, this is 12:08? him, when to
Q. Initially you spoke A. Yes. about it. him at indicated he would to time, You this speak you Q. spoke in the room?
Who was rights, advised him of his Detective 12:08, when we 12:07, A. Initially were in the room. We Detective Adams from myself Green and Neptune Cheryl speak him murder we about the advised him that wanted time, it at not want talk to us about he he did Alston. At indicated 12:08 anything about he know it? He indicated didn’t Q. is correct. A. That doing doing? eating just there? he he Was he Was What was Q. anything at that time? smoking throughout He our whole conversation. He was A. continually finishing having might his I don’t recall. sandwich. have been soda *13 a time when left the room other than and Mr. Was there Q. everybody you Bey? A. Yes. What time was that? Q. advising rights.
A. About 10 or 12 minutes after our initial Did there come a time when he indicated to his involvement in the Q. you murder of Alston? Cheryl A. Yes. that? When was Q. A. 12:55 he indicated me his involvement of the homicide Approximately Alston. Cheryl talking preceding brought in the moments, Had been to him or what Q. you this about? talking A. He indicated he had known about his involvement Cheryl and he told me how he walked to the boardwalk and Cheryl previously, up talking saw her there. At that we started about her death. point, Prior to he had admitted that he knew Miss Alston and he had seen Q. this, night? her that A. Yes. at the Miranda testifying hearing
Also were Detective Green defendant, and the who George’s more less corroborated significant version of the events. Green testified he was present rights signed when defendant was read his acknowledgment. Continuing, he testified: Was Mr. at that time about the death of Alston? Q. Bey questioned Cheryl A. Yes, sir. any Did he indicate at that time involvement in that crime? Q. No, sir, ke did not.
A. Did there come a time when left that office? Q. you A. Yes. Who remained in the office with Mr. Q. Bey? Investigator George.
A. The defendant testified as follows: giving other conversation with the about Q. the statement? Any police A. I don’t know if would call it a but it conversation, mean before you you given? was given. Before it was Q. George, A. The said we know the answers to the Prosecutor, Philip already before we ask them. So don’t come on tell us what we questions why you want to know. *14 What did to that? Q. you say nothing. talking A. I didn’t That when started Mr. Green about say Johnson. At a time when is back. Green Q.
A. Yes. Q. Okay. saying nothing. just sitting crying I wasn't I was there or whatever I A. doing. They asking questions. saying nothing. was was me I wasn’t I was just saying and after I said Mr. call, Green, know, Johnson’s my phone you he said that he had talked to him when he was at the he name, house when had talked to him on the That I would be able to talk to him after phone. everything was over. George just Did have conversation before that with Detective Q. you any gave before the statement? you A. No. What about Detective Adams?
Q.
A. Which one was Detective Adams? The third one was when the statement was taken. Q. present
A. Police? No. Neptune Investigator George pretrial confirmed his narrative events on direct examination at trial: begin Did Mr. at that time about the death Q. you initially question Bey Alston? Cheryl A. I did. Yes, anything, And if what, did he Q. say? initially myself A. When we and Detective him he knew Green —asked — if death, anything Cheryl about Alston’s he did not want to discuss it. Did there come a time when the other officers left the room? Q.
A. Yes. And who were the officers who left the room?
Q. A. Detective and Detective Adams of the me—the Green Asbury —excuse Police Neptune Township Department. And what time would that it that he Q. was left— approximately you say left? they rights A. We advised him of his 12:08 a.m. approximately
About 10 15 minutes left. minutes, later, they Q. Okay. A. Ten I would minutes, say. During doing? the next what was Mr. Q. time, portion Bey eating A. Mr. are in office. He’s still his Bey myself Captain Wheary’s smoking cigarette, having something And we talked in to drink. sandwich,
generalities concerning Miss Alston. point And he indicated to me at a later in time that he was involved in
Miss Alston’s death. you say ultimately says you What time it would is that he Q. he’s involved in Miss Alston’s death? 12:55, initially Cheryl A. At he indicated his involvement in the Alston homicide. reportedly agreed give statement, Defendant a written George quickly retrieved Green and Adams. Detective Green him rights, readvised of his and defendant executed a written police waiver.6 The then elicited the written confession subse- *15 supra quently at Seе introduced trial. at 53. argument concerning
Defendant’s these events is basic straightforward. George began He asserts that when question incident, him about the Alston immediately he invoked silent, right his right guaranteed remain a suspect under going interrogation by custodial both the fifth amendment of the United States Constitution and the common law New See, Arizona, e.g., Jersey. supra, Miranda v. 389 U.S. at 460-61, 467, 1624, 86 S.Ct. at 1620-21, 715-16, 16 L.Ed.2d at 719; Michigan v. Mosley, at 96 S.Ct at 321; 46 L.Ed.2d at Hartley, supra, State v. N.J. at 260, 262-63, Further, 284-86. defendant contends that inas police much as question continued to him rather than interrogation, terminate subsequent his inculpatory state ments unconstitutionally compelled law, were as a matter of re-reading 6The "waiver’’ consisted of Detective Green the full Miranda warnings, answering “yes" following questions: you and defendant to the "Do your rights just you?” "Having rights understand that I have read to these mind, you give up rights give voluntary do wish to waive and those questions?” you statement and answer certain and "Do understand that this completely voluntary your part, your statement must be on and be made of reward, promise hope own free will without without fear or threat of harm, addition, physical and without coercion or duress?” In defendant signed responses his name on the form next to his affirmative to the latter two questions. apparently The trial court found defendant's waiver valid. Given 68-70, holding, police scrupulously Bey’s our that the failed to honor infra right questioning, exercise of his to cut off we do not reach the waiver issue ruling. and intimate no view the trial court's See, e.g., Hartley, supra, v. and hence inadmissible. State outset, note that as defendant raises 271-78. At the we N.J. for the first objection admissibility to the of his confession this exacting “plain appeal, satisfy claim must the more time on Macon, appellate review.7 57 N.J. error” standard of State Melton, (1971); N.J.Super. 333-41 State v. standard, (App.Div.1975). This as summarized Cza- chor, (1980), only permits reversal when “under 82 N.J. possessed capacity a clear for the circumstances ‘the error * * * is, result,’ sufficient to producing unjust an ‘one doubt as to whether the error led the cause a reasonable ” (citations might reached’ omit- a result it otherwise not have ted). 2:10-2. See R. requires us to Bey’s self-incrimination claim
Resolution of
(1)
following
Did the defendant suffi-
address the
three issues:
(2)
so,
If
did the
ciently
right
invoke his
to remain silent?
right
questioning
police
scrupulously to honor his
to cut off
fail
(3) Assuming
police
continuing
interrogation? and
silent,
right to remain
scrupulously
did not
honor defendant’s
confes-
subsequent express
his
waiver render the written
did
analysis
our
Hartley, supra,
As in
we base
sion admissible?
and our State
on both federal constitutional law
and conclusions
privilege against self-incrimination.
common-law
*16
Stever,
543,
free
284;
(“right
to be
see
107 N.J.
*
* *
firmly established
compelled
from
self incrimination
[is]
court,
argue
theory
no
this
to the trial
7Because the defendant failed to
right
findings
respect
asserted invocation of the
were made with
to his
However, given
subsequent
police.
silent and the
conduct of
remain
record,
peculiar
adеquacy
clarity
the crucial
and the
source of
and
plain
testimony,
operative
would
facts are
and that a remand
we feel that the
151,
1987) (Sugar
Sugar,
159-60
wasteful. See State v.
be useless and
(remand
credibility
III)
necessary
"pose
if evidence does not
issues
not
court");
require
subjective
Brown v.
and intuitive evaluations of
trial
416,
590, 604,
2254, 2262,
(1975) (court
Illinois,
45 L.Ed.2d
422 U.S.
admissibility
findings
original
of confession where
to determine
would make
remand);
(original appellate
ample
R. 2:10-5
was
rather than
record
cf.
jurisdiction).
—
cert,
part
law”),
denied,
U.S.-,
as
of our state common
348,
(1987).8
108 S.Ct.
Miranda itself stated that an accused could indicate his manner, desire to remain silent in “any any prior time to or during questioning.” 473-74, 1627, atU.S. 86 S.Ct. at (emphasis at 723 supplied). Although L.Ed.2d the three ver- interrogation identical, sions of perfectly defendant’s are not they portray picture respect a consistent to the substance police of the crucial moments. topic Cheryl raised the Alston, Bey nothing effect told them he would have say.9 clearly His actions were trigger sufficient to the relevant protections suspect constitutional afforded a undergo- criminal ing interrogation. custodial
We have held
request
interroga
that a
to terminate an
ambiguous.”
tion must be honored “however
State v. Kenne
Bey
right
8Wenote that
makes no claim that he invoked his fifth amendment
Arizona,
present,
to have counsel
and thus the rules set out in Edwards v.
477,
378,
denied,
reh’g
101 S.Ct.
68 L.Ed.2d
452 U.S.
101 S.Ct.
(1981),
Bradshaw,
Oregon
65 278, (1984); Wright, 97 N.J. see also State v. 288 dy, 97 N.J. must (1984) right invocation of to counsel 113, 119-20 (equivocal defendant”); light most favorable to in the “interpreted 18, (1982)(same); at 1 id. 90 26 n. McCloskey, N.J. v. State cf. advantage of basic seek the (courts defendants assume 25 silent, “indulge and will right to remain such as the protections waiver”). The over against presumption every reasonable “any declaration agreed that whelming majority of courts have * * * inquiry should the contact or to terminate of a desire 6.9(e) Israel, Procedure LaFave J. Criminal W. & § suffice.” 836, Florida, 2d 841 (1985); 824 F. Christopher v. 310 accord conviction) Cir.1987) (“equivocal indica (reversing murder (11th unequivo effect as remain silent” has same of a desire to tion interrоga indication; ‘clearly ask that the “suspect need not cal 918, n. 6 ”); 770 F. 2d 924 Wainwright, v. stop’ Martin tion Cir.1985) words” need not “use talismanic (11th (suspect 307, 909, denied, 93 107 479 U.S. S.Ct. rights), cert. invoke (Del. 603, State, 605 (1986); 411 A .2d v. 281 Tucker L.Ed.2d declined to make 1980) suspect when (right silence invoked 1023, 1025, 621 P. 2d Or.App. statement); Bishop, 49 v. State it” to talk about 1196, (1980) (statement “I don’t want 1198 silent”); v. remain wanted to clear that defendant “made (1976)(same); 394, 395, 96 Toms, 221 S.E.2d N.C.App. cf. 83 L.Ed.2d Illinois, v. Smith interroga responses to further (1984) (“accused’s post-request clarity doubt on retrospective cast may not be used to tion express required not Defendant was request”). of the initial legal precision.10 the utmost his desire with equivocal, and the as are treated conduct and remarks 10Evenif defendant’s wishes, subsequent ex their police reasonably were unsure of defendant’s clarifying narrowly restricted changes him would have been 4; Wright,supra, 120 & n. see 97 N.J. at meaning v. See State of his statements. 923-24; Lopez- United States Wainwright, supra, 70 F.2d also Martin v. Cir.1980); Riggs, Diaz, (9th F.2d United States F.2d (4th Cir.1976). suggestion the State that has been no There *18 66
Having found that
right
defendant did invoke his
to remain
during
silent
interrogation,
a custodial
question
we turn to the
right
whether his exercise of
“fully honored,”
that
was
Mi-
Arizona,
467,
supra,
1624,
randa v.
723.]
445,
1612,
See also
at
(if
id.
at
S.Ct.
In Mosley, supra,
Supreme
required
Court was
to inter-
pret
apply
and
foregoing
passages.
Miranda
423 U.S. at
There,
police ceased the resumed here provision significant period passage and the of a fresh set after of a of time the interrogation had warnings, to crime that not of and restricted the second a interrogation. 105-06, subject at been a of the earlier [Id. L.Ed.2d at 322.] Mosley and Hartley, State v. In we focused its N.J. subsequent in state federal treatment the and courts. Hartley police initially respected defend- The in at 265-67.11 make that he did not want to a statement and ant’s assertion later, hours questions, roughly one-and-a-half asked him no but was without a fresh Miranda warning, interrogation an com- Id. at 258-59. The produced menced an oral confession. oral to a subsequently gave a second confession defendant ques- officers, him before who did re-Mirandize different set of Mosley the Id. at 259.12 tioning entirely Not sure how him. facts, we to different set responded have a Court would reasoned respect: Mosley a in at this the decision of no room for doubt least [left] (1) police suspect “scrupulously not when the do remain silent is honored” (3) hours, (2) warnings, approach he is he receives fresh Miranda him for two officer, respect (4) questioned in of an questioned by he is a different retroactively apply Hartley suggestion that does not 11There been no has (federal Stever, supra, at 550-52 the facts of this case. State Cf. effect). given procedure must be retroactive criminal decisions constitutional investigation by 12Hartley authorities. federal The had been under FBI, by group the second Atlantic was obtained first confession County, City, York State authorities. and New Atlantic offense different from one for which he is in 103 N.J. custody. [Hartley, 266.] addressing present Without Mosley, other factors we scrupulously rights held that in order to honor the of a defend- attempted questioning, ant who has to cut off “the furnishing warnings” “indispensable” fresh Miranda would be before questioning Accordingly, could be resumed. Id. at 267-76. police in Hartley scrupulously were found not to have honored rights the defendant’s interrogation since initial de- after fendant preceded by declined to make a statement was not warning. fresh at 278. Id. question today before easier posed us than that indeed,
Hartley; literally it answers itself. The record demon right strates that when ques defendant invoked his to cut off tioning, interrogation nothing continued as if had happened. by Investigator George, Bey As related knowledge denied incident, present room, the other officers left the and the generalities two concerning “talked Miss Alston.” It was forty forty-five not until minutes after defendant invoked his right George to cut off questioning procured oral his confession.
The legal error here is
attempted
clear. The defendant
*20
right
exercise his constitutional
to remain silent and
off
cut
questioning.
police
ignore
The
could not
officers
thereafter
his
interrogate
wishes and continue to
him about the same inci-
dent.13
ground
holding
We break no
new
that defendant’s
13The record does not establish the
or comment
precise question
himself,
defendant
to
but we have no hesitation in con
prompted
inculpate
cluding
"interrogation,"
it came in
to some form of
as defined
response
by
(1980).
Rhode
v. Innis,
291,
1682,
island
446 U.S.
100 S.Ct.
Through
he can
of
to terminate
the exercise
[a
discussed,
occurs,
subjects
questioning
the
and the
the
at which
control
time
interrogation.
requirement
that law enforcement authori-
duration
the
of
option
respect
person’s
the coercive
exercise of that
counteracts
must
a
ties
103-04,
setting.
pressures
the
of
custodial
[423
(emphasis supplied).]
at 322
L.Ed.2d
564-70,
(2d Cir.1984);
Coles, supra, Wash.App. at
State v.
751 F.2d
by
made
the
that defendant's confession
at 715-17. No claim is
P.2d
interrogation.
spontaneous
than the result of
was
rather
eventually give an oral confession has no
14The fact that defendant did
Hartley,
inquiry
bearing
"scrupulously
this
In State v.
honor"
case.
the
opinion disagreed
supra,
that no
with the Court's conclusion
the author
this
given
posed
the
The dissent reasoned that
waiver issue was
dissented.
presented (1)
specific
the defendant received two
of facts there
confluence
—
(2)
respected
right
police initially
warnings,
defendant's
to
full Miranda
the
conduct,
silent,
(3)
challenged
consisting simply
police
remain
the
agreement
provide
warnings,
to talk occurred
to
and defendant’s
failure
fresh
right
simultaneously
recognizing
a valid waiver of
criteria for
—"the
right
necessarily encompass
factors that determine whether
silence
Hartley,
scrupulously
Investigator George’s
scrupulously
failure
to honor
right
defendant’s
questioning
cut off
an
soon resulted in
oral
Bey
signed
guilt.
purported
admission of
then
of his
waiver
rights,
supra
gave
confession,
see
at 62
n.
a written
at
introduced
full
defendant’s trial.
in Hartley, supra,
As
admissibility
103 N.J. at
of defendant’s second confes
sion turns on the constitutional or non-constitutional nature
Hartley,
go
15As
"we need
no further” than the facts now before us. 103
regarding
long
required
N.J. at 267. We
no
intimate
view
how
a cessation is
resumed,
questioning may
concerning
change
before
whether a
subject-matter
required
location
and/or
as well. We note however the
Mosley
"permit
Court's observation that to
the continuation of custodial inter
rogation
momentary
clearly
purposes
after a
would
cessation
frustrate the
repeated
allowing
questioning
Miranda
rounds
will
undermine the
person being questioned."
423 U.S.
96 S.Ct.
71
illegally
is
illegality. Where a confession
preceding
procedural
“prophy-
or
only
of Miranda's
obtained
violation
confession),
inadmissible
(e.g.,
unwarned
it is
lactic” dictates
an
case-in-chief,
consequences
the
but the
of
prosecution’s
in the
Elstad, 470
Oregon v.
illegality are not “irremediable.”
initial
222,
1285, 1293,
(1985);
232
298, 309,
84
105
L.Ed.2d
S.Ct.
US.
Subsequent
Hartley, supra,
ant’s reasoning supra. Hartley held by Hartley, our controlled right scrupulously suspect’s honor the failure a that where of fresh Mi questioning off results from the absence cut resuming questioning, illegality warnings before randa subsequent inculpatory statement uncon suspect’s renders 271. stitutionally compelled a of law. 103 N.J. at as matter We reasoned that there warnings in the first a failure to administer Miranda place,
difference between
rights
the constitutional
asserted,
have been
honor,
and a failure to
after they
designed
warnings
instance
secure.
In the former
the police
that
those
are
standing
acts of coercion
alone and
conduct,
oppressive
unaccompanied
any
undermining of
in-custo-
an
does not
demonstrate
intimidation,
inevitably
or
* * *
his
if after a
to exercise
free will.
[But],
suspect
suspect’s ability
dy
right
has
violate
that
himself of the Constitution’s
police
avails
protections
magnitude.
is of constitutional
definition,
invoked,
violation, by
been
N.J.
at
[Hartley, supra,
272-73.]
explained
We noted that Miranda itself had
“any
state-
person
ment taken
privilege
after
invokes his
remain
[a]
[to
product
cannot
than
compulsion,
be other
subtle
silent]
Arizona,
otherwise.”
Miranda v.
quoted
L.Ed.2d at
v. Hartley,
in State
supra, 103
at 273.
it
“surpassing
We also found
*23
importance”
Court,
holding
that the
Elstad
a defendant’s
notwithstanding
second confession admissible
an earlier breach
rules,
prophylactic
pains
of Miranda’s
“took
distinguish
to
from cases ‘concerning suspects whose invocation
[those facts]
rights
of their
to remain silent and to
present
have counsel
flatly ignored
police subjected
were
while
them to continued
'”
interrogation.’
supra,
State v. Hartley,
103 N.J.
276
at
Elstad,
(quoting Oregon
supra,
3,
v.
In defendant’s Hartley, police unlike the failed even respect to initially right his to off questioning. They cut simply interrogation. continued the prin- We announce no new ciple of in holding law that this violated defendant’s constitu- rights tional and ensuing common-law the rendered oral compelled confession aas matter of law. v. Hartley, State supra, (“the 103 N.J. at 278 to previously-in- failure honor a right voked to silence so inherently compulsion smacks any following statement that failure is involuntary by defini- tion”).
Mosley observed that the critical interrogation-related compo-
nent of the self-incrimination privilege
right
is the
off
cut
questioning.
103,
326,
423
at
96
U.S.
at
L.Ed.2d at
321. But where the police fail to halt
questioning
even
temporarily,
ensuing danger
compulsion
of coercion and
great,
confess is
suspect perceives
for the
their conduct
an
as
rights
indication that
just
he
been
nothing,
has
read mean
he going
is
subjected
ongoing interrogation
police
102,
until he
325,
talks. See id. at
at
96 S.Ct.
(momentary
L.Ed.2d at 320
of questioning
cessation
after invo-
cation can
person being
“undermine
will of the
ques-
tioned”);
Arizona,
474,
supra, 384
at
Miranda v.
see also
1628, 16
(post-invocation statement “can
L.Ed.2d 723
86 S.Ct.
compulsion”);
product
v.
be other than
Martin
not
(any
2d at 929 n. 14
confession
Wainwright, supra,
F.
flatly
suspect’s
police
ignore a
invocation “is
obtained after
likely
involuntary”);
Hartley, supra,
v.
to be
State
cases);
2d
(collecting
Hartwig,
123 Wis.
284-
(1985)(failure
scrupulously to
366 N
870-71
honor
W.2d
confession);
right to silence was coercive and tainted
State v.
(same);
(Haw.1985)
Autry v.
702 P.2d
Uganiza,
(en
banc)
Texas,
(Tex.Ct.App.1982)
764-65
S.W.2d
violation).
Mosley
test to
But see Martin v.
(applying “fruits”
(statement made
Wainwright, supra,
Finally, we
clearly poisoned
oral
the written
lying defendant’s
confession
Elstad,
Oregon
instructed that
confession as well.
*24
coerced,
passes
actually
“a
is
the time
where
statement
confessions,
interrogations,
change
place
the
and
between
interrogators
change
identity of
all bear whether
into the second confession.” 470
the coercion has carried over
232-33;
310,
1293,
see
time between interrogation identity interrogators: the record establish a.m., George at 12:55 orally confessed to es that defendant detectives and a by George had the other 1:15 a.m. retrieved defend police typist, Detective Green re-Mirandize instructed ant, waiver, begun to take defendant’s procured a written In the two confessions were written statement. effect interrogation, and thus the product single, continuing of a as constitutional second “burdened the same infirmities[ ]” putative first, intervening warnings and irrespective of (citing 103 at 279-80 Hartley, supra, N.J. waiver. State v. 74 States, 436, 1602,
Westover v. United
384 U.S.
86 S.Ct.
16
(1966);
Denno,
Leyra
556,
L.Ed.2d 694
716,
347 U.S.
74 S.Ct.
(1954)).
98
948
way,
L.Ed.
Put another
where the second
first,
confession is so intertwined with the
it inevitably must be
product
seen as the
of the first and
wholly
by
thus
tainted
preceding constitutional violation.
Hartley, supra,
State v.
(second
at 284
coming
statement
“on the heels” of com-
pelled
tainted”);
statement
is “unavoidably
accord State v.
Hartwig, supra,
283-87,
2d at
Wis.
To
by failing
scrupulously
honor defendant’s
request to
interrogation
terminate the
police
violated his
federal constitutional and state
rights,
common-law
and his oral
and written confessions
erroneously
were
introduced at trial.
Such
being clearly
error
“sufficient to cause a reasonable doubt
* * *
as to whether
led the
to a result it
[it]
otherwise
might
reached,”
not have
Czachor, supra,
State v.
Ill Defendant challenges also ground his convictions on the that prejudicial publicity mid-trial right undermined his by to trial a
75 right guaranteed criminal impartial jury, squarely fair and a and constitutions. Const. by defendants State federal U.S. ¶I, See, VI, XIV; e.g., art. 10. amends. Const. N.J. 1947 of Williams, 39, (1983). explained v. 93 59-62 We have N.J. State impartial jury goes securing preservation and of an that “[t]he * * * right] is of a fair trial. of very essence [This * * * of be exceptional significance. fact must as [T]riers ” nearly impartial humanity ‘as the lot of will admit.’ Id. 60 339, omitted); Corsaro, (citation v. accord State 107 N.J. 348 (1987) integrity jury and of (sanctity jury of role deliberations aspects prosecution”); Bieg of a criminal v. “are crucial State enwald, 13, (1987)(“[i]t 32 axiomatic a criminal 106 N.J. is right to a trial that he tried requires defendant’s fair before Dowd, panel prejudice.”); by not tainted see Irvin v. 717, 1639, 1642, 751, (1961) 722, 81 S.Ct. 6 L.Ed.2d (“failure hearing even to accord an accused fair violates process”). of minimal standards due aspect particular significance impartiality here of
Of evidence re mandating jury’s “that the verdict be based on court, Sheppard from sources.” v. open ceived not outside 1507, 1516, Maxwell, 333, 351, 86 16 L.Ed.2d 384 U.S. Holmes, theory (1966). expressed by As Justice “[t]he in a case system is that the conclusions to be reached will
our court, only by argument open be induced evidence influence, public private talk or any not outside whether Colorado, 454, 462, S. Ct. print.” Patterson 205 U.S. (1907). recently long noted the We L.Ed. “[preserva
standing commitment nature this Court's judicial jury’s independence extraneous —even tion from Corsaro, at 350. The —influences.” N.J. required protect courts to both consistently trial Court has illegitimate from influences that jurors and their deliberations Kozlov, See, re e.g., In threaten to taint verdict. (trial expose (1979) “seek out and judges 239-40 must of action and impinging upon jury’s freedom
outside factors Duyne, integrity”); State v. Van impartiality its essential *26 76 (1964)(trial
43
“analyze
N.J.
386
courts must
and evaluate
words,
carefully
juror
attitude and demeanor of a
he
when
an impartial
prejudice
asserts
mind and one which
free
is
from
* * *
regardless
[exposure
improper
publicity”),
newspaper
to]
denied,
rt.
85
14
US.
S.Ct.
L.Ed.2d 279
ce
Jackson,
(1965);
(1964) (reversing
State v.
N.J. 148
convic
juror
friendly
tion where trial court refused tо excuse
who was
police
despite juror’s
witnesses
statement of its irrelevance
credibility),
cert.
Jersey,
denied sub nom. Ravenell v. New
(1965);
Wright
L.Ed.2d 572
Bernstein,
(1957)(where juror sitting
We have
prejudicial pub-
addressed the
licity
capital
Williams,
the context of
cases in State v.
supra.
and
v. Biegenwald,
In State v. Williams
capital
two
impartial
defendants asserted that their “fair and
rights
jury”
required
public
that the trial courts exclude the
press
pretrial
proceedings
from certain
because of the
likely adverse publicity.
rejected
at 47. We
their
requests
recognized
right
a constitutional
of access to
pretrial proceedings
criminal
public
press.
behalf
However,
59.
Id. at
proceedings
we did state that such
could
certain
participants.
circumstances be closed to all but the
Id.
at 61.16
responsibility
We declared that “the trial court’s
under
16Specifically,
pretrial proceeding
the Court held that a
could
closed "in
clearly
pretrial
instances
which the trial court
is
satisfied that
if the
proceeding
open
preju
is conducted in
court
there
a realistic likelihood of
and,
impartial jury
publicity,
dice
ato
fair
an
trial
as
result of adverse
integri-
preserve
federal and
both the
State Constitutions
danger
prejudice
and minimize the
will
ty of
adjudicatory process
peak
infiltrate the
is at its
in cases involv-
*27
68-69;
63;
61-62,
ing
penalty.”
death
at
at
Id.
see id.
158;
Mount,
Jackson, supra,
v.
43
at
State v.
30
State
N.J.
noted,
(1959).
responsibility,
This
we
runs
N.J.
“throughout
process,” extending
pretrial
the trial
to “the
during
stages
prosecution
of the
as well as
trial.” State v.
Williams, supra,
In
v.
focused on the
State
publicity
relation to defendant’s claim that the trial court
change
denying
erred in
his
of venue motion. The Court noted
change
“necessary
appropriate
while a venue
is
when
prejudice
pretrial
from
overcome the realistic likelihood of
(quoting
publicity,”
Biegenwald, supra,
v.
The fair trial issue before us involves not publicity, publicity highly prejudicial but mid-trial of a nature. prosecution participants From the outset defendant’s likely were aware of the media interest in the case. As above, unsuccessfully mentioned defendant moved the trial sequestration prior court for an order of months two to the selection. At the Miranda hearing commencement of court, counsel, spoke concerning and witnesses in “code” cer- aspects interrogation explicit tain of defendant’s so as to avoid voir dire the court During references to the Peniston murder. *28 questioned prospective jurors concerning exposure pretrial to publicity, eight and excused for cause seventy-one of the venire- exposure.17 Further, man on account of such the court re- peatedly prospective jurors: admonished the might suggest you you your family peruse your I to that have some member of newspaper you get home, you anything before before read it. If there is in the newspaper case, they newspaper about this that should extract that from the you anything and it for save until the case is concluded. You are not to read strictly you about case. You this are to decide the case on the evidence as hear you it in the courtroom and as evaluate it. anything newspaper, Should accident someone read about this case in the anybody, bring my you don’t discuss it with but it to attention as soon as can. length may case, I think with the of the trial that we be confronted with in this weeks, you
three or four the better course will be —I don’t want to ask or tell you newspapers, suggest you not to read the local but I would that have some family peruse newspapers you get member of the those that at home. Should eight jurors grounds, publicity 17In addition to the excused on fourteen varying degrees exposure during others revealed voir dire. Two of these grounds, prelimi- fourteen were excused for cause on other and the rest were narily qualified. jurors eventually impaneled, Four of these twelve were two sitting and two as alternates. all, anything paper there in the be about this case at that that of the be cut out paper perhaps you completed. and saved for until this case has been At which meantime, you you prohibited be time able to read it. In the will are from reading anything listening any newspaper in the radio or television broadcast, any there if about this case. protective These instructions were in substance issued individu- ally juror court,18 preliminarily qualified by to each and repeated trial, day each twice once before lunch and once at the close of the afternoon session.19
Jury selection on commenced November 1983. Counsel published noted that articles and the day next Asbury Park Press and Register Red Bank mentioned defend- ant’s pending indictment and trial for the murder of Carol Peniston, as well as prior robbery his and assault convictions. prospective jurors articles; reported reading Five these three of Jury those were excused for cause. selection continued until 7th, began December and morning trial the next an with unsequestered jury. Coverage continued, proceedings Press, in the Asbury Park primarily appearing with articles 6th, 9th, 10th, 11th; December each these articles referred to the Peniston indictment.20 The Asbury Park Press court, 18TypicaIIy jurors report court instructed when to back to added: meantime, my In the Do not remember admonitions. discuss case anybody. anyone attempts you If it with know discuss let me any newspaper any about Don't read it. accounts or listen to radio any. point, any accounts should there be At this there has not been might suggestions Maybe you television accounts. follow the I made about articles, somebody cutting you at home out don’t read them. That any problems. would avoid apart fact 19Defendant makes much of the from the court’s instructions veniremen, jurors panel specifically to the first were not admonished *29 bring any exposure publicity. to the court's attention This omission not however, practice material to our resolution of the issue. The in a better trial, high-profile daily would be to include such an admonition in the court's protective instructions. B5, Continues, Press, 6, 1983, 3; Asbury 20Jury Park col. Selection Dec. at Murder, Press, Lawyer Asbury Jury, Heat Led to Tells Park Dec. Passion strongly commentary criticizing also contained a worded recent overly in sentences murder cases as lenient.21 jury brought in Before the was for the afternoon produced session on December defendant’s counsel these mistrial, articles and moved the court to declare a or in the poll jury concerning any exposure alternative to the sequestration. publicity and to order Each of defendant’s re quests was denied.22 court reasoned: Now, regard appeared newspapers, with to those articles that have trial, regard specific jurors to this I have admonished from the first selection, day jury Tuesday, which we started was on November to the time, present any newspaper cautioned them not to read articles. fact, suggested encouraged As a matter of I went sо far as to them and them practice they family to follow that where would have some other member of the paper they got any regard' it. scour before And if there are materials with trial, they kept particular juror, to this be excised and from that until such jury completed. time as their service has been sitting many jury I am satisfied from cases that the follows the Court’s something may instructions. And those instances where have come to their something happened they thought they bringing attention or should be attention, only capital the Court’s that has been done. Not cases but in other considering cases as well. And in this case and the extensive examination of all prospective jurors, counsel, by both the Court and I am satisfied and that, anything they thought certain if came to their attention which would prejudice any way they they any way them in felt that violated their oath in they bring would it to the Court’s attention. or — hearing anything jurors, they And not from the I’m satisfied that haven’t any read of these articles. Now, me, suggesting, inquire jury they for as counsel is if read papers gbing through might these would be another voir dire of the 1983, A1, 1; Woman, Says Savage Beating Asbury at col. Examiner Killed Park Press, 10, 1983, A1, 1; Press, 11, 1983, Asbury Dec. col. Park Dec. at C5. Punishment, Press, 21Strange Asbury Notions Crime and Park Dec. 1983, C5, col. 3. challenges only poll 22Before this Court defendant the court's refusal to jury, and thus we have no cause to assess the court's denial of his mistrial and sequestration motions. *30 go excite a little bit of interest for them to look for these articles or read them. I don’t know whether it would or wouldn’t. relying erred in protective We believe the court on its instruc- alone, highly prejudicial tions and conclude that due to the articles, nature of the information contained in these and the possibility may realistic that it have reached one or more of the jurors, poll jury the court’s refusal to violated defendant’s rights requires fair trial that his convictions be reversed. presumption jurors that faithfully will adhere to the trial regarding court’s instructions all facets of their role is not Supreme recog- inviolate. As the United States recently Court Phillips, supra, safeguards nized in juror Smith “[t]he impartiality, protective such as voir dire and instructions from infallible; judge, virtually impossible the trial are not it jurors every might shield from contact or influence that theo- retically affect their vote.” 455 S. Ct. problem:
Hence, notwithstanding general presumption jurors good comply act in faith and seek to with the court’s instruc tions, in certain circumstances a criminal defendant whose life liberty might reasonably question efficacy is at stake repeated agreed publicity-relat admonitions. Courts have warnings may inadequtae inherently prejudicial ed when during published information has been released or a trial in likely such a it manner as to render that one or more of the jurors exposed. Trap could have E.g., been United States v. (7th nell, Cir.1980)(searching pretrial 638 F. 2d voir read or listen to accounts repeated “not to dire admonitions * * * protect jury from sufficient to the trial not] [the] [were *31 Lord, 565 F. 2d publicity”); United States v. prejudicial trial (2d Cir.1977)(“district relying solely erred in on 831, court 838 * * * United coverage”); to avoid news repetitive admonitions 1099, (5th Cir.1978) (prelimi Herring, 568 F.2d 1104 States v. cautioning disregard publicity not jurors to nary instructions Pomponio, 517 United States v. trial); ensure fair sufficient to 460, (4th Cir.) (though presumed to follow jury 463 is F. 2d instructions, relying in on its admonitions district court erred exposed highly prejudicial jury may the have been where denied, 1015, 448, 96 S.Ct. 46 reports), cert. U.S. 423 L.Ed.2d (4th Gray, 788 F.2d United States v. (1975); 1033 386 cf. ex Cir.1986) (repetition publicity potential admonition after Allen, supra, v. 73 N.J. at “insufficient”); posure was (Pashman, J., (cautionary may concurring) instructions 164 coverage widespread, is not the informa relied on “where news testimony reports does not conflict with tion contained in the court, in in it is factual rather than emotional proven nature”). trial, possibility nonseques highly publicized
In the that a a juror might inadvertently observe a news article or head tered report hardly or radio remote. line or overhear a television Phillips, supra, v. 455 See Smith shielding jurors from (noting impossibility at 86 L.Ed.2d Perrotta, United v. influences); States 553 F.2d all contacts (1st Cir.1977) (where “prominently dis article was juror played have hard for even a conscientious would been [it] suppose [it]”). Similarly, it is less than fanciful to to overlook trial, might on context of such a human nature that concerning press reports to juror’s curiosity occasion allow sense. See United States get good of his the better Williams, (5th Cir.1978) (mid-trial publicity 568 F.2d prejudice” pretrial pub “greater opportunities for than creates seek this licity jurors “may be more inclined to out because case”); [they personally involved information where are] (where United F.2A at Herring, States photographs page article appeared jury on front was sequestered, defy not “it suppose would common sense to single glanced not a member of the had at least at the Indeed, photograph”). during headline and defendant’s trial murder, trial, for the nine Peniston months after the Alston it through was polling procedure discovered had juror despite repeated read an entire article about case instruc newspapers; tions read the juror reading not to had been it, defendant, noticing article аbove and after one about curiosity.” Transcript read it as matter of of proceedings, “a 26, 1984, 73-14, Sept. Bey II), 69-21 (Bey State v. 112 N.J. (1988). The article contained two references to defendant’s murder case. conviction this Id. at 60-20 to 63-1.
If, however, rely exclusively a trial court chooses to *32 instructions, cautionary go its such likely incidents would un mentioned, we certain empanelling jurors unless can be of who would volunteer their infractions to the court and counsel.23 Accordingly, presented post-impan when a trial court is with a question elment to the jury exposure' motion to trial about examples alleged juror irregularities 23We three note here other of actual or case, appeals: (1) death-penalty culled from Court’s this disclosed this In it was despite that voir dire twice the court’s admonitions to the venire not to case, prospective jurors discussing jury discuss the were the case in the room. Selection, 30, 1983, 152-5, 1, 1983, 72-3; Jury (2) Nov. 151-21 to Dec. 70-19 to Koedatich, (N.J., 28, 1987), argued Sept. reported In State v. A-1 it was in the Daily according Record after defendant's conviction and death sentence that to jurors, they jurors perhaps two of the and other had been aware of defendant's pending Appeal, Daily other Wins Juror murder trial. Koedatich Defense Record, 10, 1985, 5; 1, (3) Williams, (N.J., argued March at col. In State v. A-4 10, 1987), juror jurors alleging prospective Nov. a was told of articles investigated by Jury Project. had been on defendant’s behalf the National 17, Record, 1984, Trial to of did the Jan. 143-12 -18. In none these cases juror(s) irregularity. voluntarily respective involved inform court of the Indeed, Williams, II, supra, Bey supra, irregularity was discovered only granted jury request polled. after the Trial court counsel’s Record, 1984, 24-12, 143-2, 17, Williams; Transcript Jan. 142-16 9-15 to to 26, 65-10, 1984, Proceedings, Sept. Bey to 63-6 II. 84 the merits counsel’s analyze court should
publicity, the
Maxwell,
two-part
Sheppard v.
proffer through
inquiry.
a
Cf.
362,
1522, 16
620
supra,
86
at
L.Ed.2d at
384 U.S.
S.Ct.
(“trial
strong
to
that ac
must take
measures
ensure”
courts
“by
impartial jury
an
free from
influ
cused is tried
outside
Williams,
(trial
ences”);
supra,
L.Ed. 2d
v.
593 2d
United States
F.
(8th Cir.1979);
Perrotta, supra, 553 F. 2d at
United States v.
timing of
250. One court has identified “the
the media cover
age
possible
legal
effects on
defenses” as factors to be
its
Manzella, supra,
2d at 542.
considered. United States
782 F.
Obviously, reports
inculpatory
a confession
physical
suppressed,
that the
ordered
or of
evidence
court has
jury,
give
rise
proceedings
presence
held outside
can
potential prejudice.
Virgin
Dowling,
See
Islands
(“[e]xtra-record
Likewise, referring pending prior indictment or publicity to a rights a fair gravely prejudice defendant’s conviction could States, See, Marshall v. United e.g., trial. 1171, 1172-73, (1959)
312-13,
1251-52
3 L.Ed.2d
79 S.Ct.
convictions);
prior
(reversing
jurors
where
learned of
conviction
Kociolek,
knowledge of
(juror
at 96
supra,
v.
trial
phase
of murder
pending assault
indictment
death
disparage the
in the minds of
calculated to
defendant
“would be
supra, 814 F. 2d at
jurors”);
Dowling,
Islands v.
Virgin
criminal activities
(publicity referring
prior
convictions or
prejudice);
Gray,
v.
great potential” for
United States
“carries
(article charging that defendant had
2d at 1032-33
supra, 788 F.
“masterminding a
million
previously
acquitted
$30
been
preju
ring” satisfied
York heroin
dollar Amsterdam-to-New
threshold);
517 F. 2d at
Pomponio, supra,
dice
United States
(article disclosing
current trial was for ten counts
462-63
prejudicial).25
113 count indictment was
prejudicial
allegedly
its substantive
information, or
equivalent,
25When the
danger
prejudice
of actual
evidence,
into
has been or will be admitted
greatly
Hood,
lessened. See United States
the accused
may
(where
offense the
to defendant's arrest for an
articles referred
F. 2d at 297
arrests for
testified about
but defendant had
of,
already
prior
had not learned
finding
kidnapping,
trial court did not err
and armed
murder,
robbery,
satisfied). Mere admission of
prejudice
had not been
threshold
requirement
negate
not, however,
does
into the trial record
the evidence or its equivalent
of certain evidence
since the admission
the need for trial court analysis,
*34
If the court
published
is satisfied that the
information
capacity
defendant,
has the
to prejudice the
it should determine
if there is a realistic possibility that such
may
information
have
reached
jurors.
one or more of the
Manzella,
United States v.
supra,
Where the court concludes
possi
there is a realistic
bility that
capacity
information with the
prejudice
defend
right
ant’s
may
to a fair trial
have reached
jury,
members of
it
should conduct a voir
any
dire
determine whether
exposure
has
any
occurred.26 If there is
indication of
exposure
such
accompanied by cautionary limiting
often
obviously
instructions
not contained
report.
States,
312-13,
in the media
supra,
See Marshall v. United
89 See, Dowling, supra, v. Virgin Islands 139; e.g., 814 F.2d at United States Gaggi, supra, 51; v. United States 811 F. 2d at Williams, United States v. 1091-92; v. F. 809 2d at Hood, Trapnell, supra, 638 F. States v. 1022; United 2d at Perrotta, supra, 553 supra, 593 F. 2d at United States v. 296; Pomponio, supra, 517 F.2d at States v. 249-50; United F.2d at State, v. 150, v. (Ind.1986); Micinski 463; 487 155 N.E.2d Jasuilewicz, N.J.Super. 558, (App.Div.1985), 568 205 certif. Sundaresh, Ill.App. denied, People v. 103 N.J. 467 (1986); 153 106 Ill.Dec. 506 N.E.2d 935-38, 872, 875-76, 672, 930, 675-76 3d dismissed, appeal 116 Ill.2d 113 Ill.Dec. 515 (Ill.App.), State, Kruse (Fla.Dist.Ct. (1987); 483 1383 122 N.E.2d So.2d dismissed, State v. (1987); cause App.1986), 507 So.2d But Allen, supra, see J., (Pashman, concurring). Metzger, 778 F. (6th Cir.1985), United States v. 2d denied, cert. 477 L.Ed.2d 568 (1986). impaneled jury when procedure questioning an integrity the fairness and
prejudicial publicity threatens begrudingly. not invoked While we defendant’s trial should be any publicity relating to the suggest mean do not automatically proceedings require defendant or the will Lord, supra, F. 2d see United States polled, required if disseminated was (polling not information possibility jury exposure was “re “clearly innocuous” or mote”), might err on the side of properly a court choose to Williams, State v. ruling on such motions. caution when Cf *37 supra, 93 N.J. at 68 (to guarantee impartial may an courts cause). excusing jurors of in for resolve doubts in favor accused nature, designed in to uncover procedure prophylactic rights significant potential prejudice extremely constitutional undetected, at go and to do so a might wholly that otherwise is, possible, remain that before time measures when corrective only option. Hence the ordering a new trial has become safeguard rights of the ac operates polling procedure interests in the fair and efficient vindicate societal cused and justice Further, system. administration the criminal con- in publicity-related trast to the in measures discussed v. venue), Biegenwald, supra, (change N.J. at and State Williams, (closure pretrial at pro- 63-67 ceedings), the imposes mid-trial voir dire minimal burden on system. the court
In Sheppard Maxwell, supra,
Supreme
Court instruct-
ed
resolving
that in
conflicts between
defendant’s fair trial
rights and the first
press guarantees,
amendment free
courts
“must
strong
take
measures to ensure that the balance is never
weighed against
the accused.” 384
at
US.
time,
In this as publicity the midtrial brought to the court’s attention disclosed that defendant going was to be tried for a second murder after the completion of the first trial. exposed publicity Jurors to this could have discovered second murder was committed close in time a similar manner to the imagine Alston murder. It is hard to publicity greater with a capacity prejudice a defendant’s case. The much, trial court itself during jury concluded as as selection it excused any juror for cause who knew the second indict finding ment. The respect court made no to the likelihood jury’s exposure publicity, to this but subsequently did grant sequestration motion, 14th, defendant’s on December part preclude “to any direct or indirect communication with [the jury] might prejudice either the defendant or the State.” We repeated coverage believe the press the local created a realistic possibility motion, that at time of defendant’s may information have reached jurors. one or more of the
91 questioned jurors Had the trial court accordance with steps request, counsel’s it could have taken whatever defense necessary proceed to ensure that defendant’s trial would were impartial jury. inquiry might have a fair Such an exposure publicity that to the had at all. revealed no occurred However, case, or, if some we cannot assume that this was occur, juror’s impar did that it had on the exposure no effect Trapnell, supra, v. tiality. See United States 2d at 638 F. Perrotta, 1023; 251; v. United at United States 553 F.2d New (3rd Jersey, ex rel Greene v. F. 2d States Cir. supra, 814 F.2d at Dowling, v. Virgin Islands 1975); cf. (where question, poll jury inadequate court but used court did have responses would “speculate jurors’ not what would appropriate inquiry”) (emphasis supplied). hold to an We been poll timely, properly supported where a midtrial motion to refused, is jury concerning prejudicial publicity is and there possibility capacity information with the a realistic may reached one or more mem prejudice defendant have See, jury, given defendant a new trial. bers of must be Williams, supra, 1093; e.g., United States v. at F.2d 1033; supra, Gray, States v. 788 F. 2d United States at United Sundaresh, 463; People Pomponio, supra, 517 F.2d at v. 875-76, 106 Ill.Dec. at 935-38, supra, Ill.App.3d State, supra, 675-76; N.E.2d Kruse v. at 1388. So.2d this Accordingly, convictions must be reversed on defendant’s ground as well. concurring Handler, thoughtful provocative in his
Justice suggests opinion, that the Court’s resolution the confession “application of an publicity and mid-trial issues reflects an cases.” Post capital appellate enhanced standard of review disagree with that assessment. Our reversal at 105. We on well-established this case based defendant’s convictions noted, regarding contentions legal principles. As defendant’s doctrine, and his confession are on familiar constitutional based of Mi- application straightforward our decision constitutes Arizona, Michigan Mosley, supra, randa v. *39 Further, respect Ante at 68-74. with to the trial court’s poll exposure failure to the reports, about to media we gone than adopt approach accepted have no further majority of states that have considered the matter for capital noncapital and cases alike. Ante at 86-89. Neverthe- less, concerning we offer these observations Justice Handler’s proposed capital standard of in review cases in order illumi- perceive distinct, nate what we as a although qualitatively narrow, difference between that standard and the one we apply Bey in this case and in II. concurring colleague
Our proposes two-pronged a standard of appellate capital in review cases. The step first is that “the reviewing heightened scrutiny court must exercise of the record independence in making findings and its respect own rulings trial court and determinations.” Post at 117. This heightened scrutiny applies phases of record to “all of capital prosecution, including murder accusatory, pretrial, stages,” and trial id. at enabling has the virtue of an appellate whole,” “to court see the case aas and to evaluate any error identified “both for its individual effect on delibera- tions for its effect structure the entire case.” Id. at 118-19. significant
We find no distinction between our metic comprehensive procedure ulous and reviewing capital for cases espoused and that by Justice step Handler as the first of the proposes. acknowledge standard review he We that capital death proceedings sentence differ in several re spects noncapital from prosecutions. See, incarceration and e.g., Ramos, 992, 998-99, 103 463 U.S. S. Ct. California 3451-52, 1171, 1179(1983) (“qualitative L.Ed.2d difference of * * * requires death correspondingly greater degree of scru tiny capital sentencing determination”); State v. Williams, supra, (importance at 61 oí fair require trial heightened cases). ments in death We believe that in death subject the record to appellate court must penalty cases an litigant’s life is at stake scrutiny. The stark fact that a intense not Accordingly, obligation judicial review. intensifies the step of Handler’s agree with the first Justice only do we scope appellate review describing required formulation cases, very meticulous and engaged have capital we every capital case that has searching review of the record us. come before process by Justice step in the review advocated
The second determining test for when consists of a substantive Handler requires reversal of either the conviction capital error in a case suggests if the concurring opinion or the sentence. *40 dimension, is reversible constitutional such error error is of impose the it had “no effect” on the determination unless sentence, citing Mississippi, 472 U.S. death Caldwell (1985). In the case Post at 116. 86 L.Ed.2d error, require re- Handler would of non-constitutional Justice “there was no could demonstrate that versal unless the State error.” Id. at prejudice arising from the realistic likelihood of 116. nor in neither this case initially that our decision
We observe II, prong of Justice be affected the second Bey supra, would suggests Although the concurrence Handler’s formulation. implicitly reflects an reversal of defendant’s conviction that our review,” 105, reversal in this post of “enhanced standard straightforward application of Rule by a case is mandated defendant’s coerced confession 2:10-2. Both the admission of exposure poll the about and the trial court’s failure producing “clearly capable of publicity were errors to mid-trial ascertaining result,” rigorous test for and no more unjust an required justify reversal prejudicial error is was whether opinion challenges Additionally, concurring the convictions. failing apply an allegedly for Bey decision in II the Court’s 105-106. But on of review. Post at enhanced standard admissibility confession that of the of the question critical concludes, a meticulous case, opinion after majority record, review it was not error for the trial court to II, Bey have admitted the confession into evidence. State v. supra, Hence, N.J. at 140-43. proposed Justice Handler’s determining standard for when error is reversible would not majority’s have affected the admissibility conclusion on the the confession.
Substantively, espoused by the test Justice Handler for deter- mining capital reversible, whether error in a case is stated simply, is a test somewhat less tolerant of the effect of error than is the analysis apply. harmless-error that we The differ- appears ence degree to be one of concept. rather than Under formulation, either inquiry concerns whether the error contributed to the verdict or the sentence. We are reminded of Chief Justice commentary purpoted Weintraub’s on the distinc- tion between the federal and California tests for harmless error: Chapman, Fahy, guidance It seems to us like offers no real as to the degree “possibility” require Chapman says, which will a new trial. As itself Fahy required finding it intended no more than a restatement of when it “beyond a reasonable doubt” that the error did not contribute to the verdict. Chapman
The “reasonable doubt” of
is no more concrete than the “reasonable
possibility”
Fahy.
doubt,” by
A “reasonable
its historic definition in the
fact-finding,
any
doubt,
area of
does not mean
conceivable
and it can mean
nоthing else here.
affirmatively,
proposition
Stated
is that a new trial shall be ordered if
there is a reasonable doubt as to whether the constitutional error contributed to
way judges
always
the verdict.
approached
It seems to us that this is the
have
subject
error,
of “harmless”
whatever the verbal framework within which
subject
judge
error,
hardly
has been cast. A
*41
would
insist an
“constitution-
other,
al” or
was “harmless” if he found a “reasonable” doubt as to whether
defy
the error contributed to the result. What continues to
articulation is the
process
judge
say
which leads a
there is a doubt and that the doubt is or is
appellate
not a reasonable one. The circumstances are too infinite and the
judgment
Macon,
formulary
too laden with discretion to admit of
aid.
[State
(1971).]
N.J.
Thus, in assessing
impact
the
in
guilt
of error
either the
penalty phase
case,
capital
of a
we shall continue to deter
mine reversibility on the
qualitative
basis of a
determination
considers,
case,
in the context of the entire
whether
the
clearly capable
error was
affecting
of
either the verdict or the
only exception
involves “constitutional violations
sentence.
* *
*
very
their
nature cast so much doubt on
[that]
law,
that,
process
they
of
trial
as a matter of
can
fairness
—Texas,
harmless.”
never be considered
Satterwhite
(1988).
1792, 1795,
Although
-,
We are also confident case, sentencing phase capital of a jury’s determination highly discretionary jury’s nature of the can accommodate mitigating duty statutory aggravating balance clearly foresee that the identification of error factors. We capable affecting jury’s weighing process the sentenc- pecu- ing phase appreciation occur with a full of both the will subjective jury’s function and the conse- liarly nature of the quences of its verdict.
IV re-tried, may defendant Because the issue arise should that the ad judicial economy considerations of dictate Court the death pertaining applicability to the dress his claims time of the given juvenile his status at the penalty statute (1985) (Sugar 235-36 Sugar, offense. State v. Cf. II) apply suppression (instructing court on law to at new lower above, conviction). hearing reversing As indicated we after applied to defendant for the may hold that the statute not be Cheryl Alston. murder 2C:11—3
At the time of defendant’s trial late N.J.S.A. penalty provi- propriety applying silent on the its death was *42 juveniles knowing sions to tried as of adults convicted or c, purposeful qualification, governed murder. without Section sentencing “[a]ny person of a(l) the convicted under subsection (2).”29 County Office, or The Monmouth Prosecutor’s assum ing c, could juveniles properly sentenced section under prosecution its against capital commenced a defendant as case. supra inception prosecution at 54-55. From See of his as adult, strenuously challenged an defendant has the constitution ality exposure penalty. gravamen of his to the death The of defendant’s contention is that the execution juvenile of offend ers so arbitrary “has become and freakish” it constitutes a punishment prohibited cruel and unusual by federal and state guarantees. VIII, XIV; constitutional Const. amends. I, paras. art. N.J. Const. & 12. The trial court of rejected defendant’s Supra constitutional claims. at 55. complex
We not address need and controversial constitu- question tional In posed.30 April subsequent thus conviction, Russo, sponsor defendant’s Senator of the reinstating penalty, Act the death introduced bill amend- ing preclude toAct the execution of defendants such as Bey juvenile offenders as proposed tried adults. bill — subject juvenile instead to offenders convicted of murder to the b, sentencing provisions of section term mandating thirty of portion 29The relevant in full section c reads: Any (1) (2) person convicted under subsection a. or who committed the accomplice procured homicidal act his own or who as an conduct by payment promise payment, anything commission of the offense * * * pecuniary provided value shall be sentenced as hereafter — Oklahoma, U.S.-, Thompson 30In L.Ed.2d 702 (1988), Court, Supreme opinion, plurality eighth in a ruled that any younger sixteen-years- amendment bars execution of defendant than Although reasoning old at the time offense. some of the Court’s case, holding relevant to this its has no effect on he was defendant as seventeen at the time of the offense. *43 The years parole ineligibility.31 life 30 of amend- years to 1985, 17, on Assembly June the passed the Senate on ment 13, 1986, signed by law the Governor January and was into N.J.S.A. 17, 1985, (codified 478 at 2C:11- January A. c. 1986. 3g). It reads: juvenile be adult convicted of murder shall not
A who has been tried as an and pursuant provisions c. be to the but shall sentenced sentenced subsection pursuant provisions to of section b. of this section. the [/A] Senate, sending Judiciary the Committee In the bill to the full stated: clarify juvenile adopted that a The an amendment which would committee may adult not be sentenced to death. With and convicted of murder as an tried amendment,
regard to that it not the to this the committee wished stress was juveniles eligible capital punishment Legislature to for intent of have Judiciary applied pending this should be to cases. [Senate that clarification Committee, (April 1985).] to Statement S-2652 be in full: 31Section reads degree person first but a conviсted of murder Murder is a crime section, sentenced, by provided except c. of this be as in subsection shall person years, during which the shall not the court to a term 30 years eligible parole specific shall be for or to a term of which between years person years imprisonment serve of which the shall life eligible parole. being for before capital- apparently prompted initiative had been 32Senator Russo's Smith, Smith, County. prosecution in Essex See State murder of Willie Smith, Div.1985). (Law Bey, N.J.Super. like was seventeen the time introducing to bill Russo wrote the Essex Id. at 581. Before the offense. Prosecutor, years leading fight stating to County [of “never once all these suggested juvenile subject capital punishment] would be was it reinstate * * * best, legislature, myself, punishment. like did not the entire [A]t to this worst, juveniles. simply apply not to At it was considered.” the law to intend 26, 1985). Star-Ledger George (April A to Schneider from John Russo Letter claiming quoted detailing progress, April Russo as the bill’s article of juveniles legislation penalty apply this to to was never meant "The death Juveniles, Exemption Penalty Gains Death will ensure that it never does.” for 30, 1985, Star-Ledger, April also stated that col. 1. The article Attorney suggested by Deputy General Boris had committee statement been exemption juveniles intended for in order to "make it clear Moczula anyone already time apply Id. At the and sentenced death.” convicted Jersey juvenile Bey only who offender in New events was the of these Marko and sentenced to death. had been convicted Legislature It is clear to us that the never had intended subject juvenile capital punishment, offenders to and did intend that its ameliorative apply amendment would retroac tively post-enactment to defendant’s case. We are mindful that legislative activity normally and statements should not inform statute, application precedent the construction and of a and that long general our courts “have followed a of statutory rule prospective construction application that favors of statutes.” Gibbons, (1981). problem, Gibbons v. however, is that *44 young death sentences should be on [w]hether offenders is a imposed question legislators bring to that not occur until may a situation arises to it their to attention. it Therefore, would be a to mistake assume that the lack of a statute excluding juveniles legislative from the death indicates an affirmative penalty juveniles
judgment subject Legislatures should that be punishment. capital cannot foresee all possibly the diverse situations in which statutes could penal realizing be can a They without the applied. inadvertently prescribe penalty [Hill, full of their action. “Can the Death Be consequences on Penalty Imposed Oklahoma," Eddings v. Juveniles: Unanswered 20 Crim.L. Question (Jan.-Peb. 1984).] Bull. 165, — Thompson Oklahoma, See supra, at-, v. 108 S.Ct. (O’Connor, J., at 2706 concurring). We believe that this ex- plains unqualified the passed Legis- version of section c the Despite “any pеrson” lature 1982. the language and inclu- age factor, sion mitigating c(5)(c), as a sec. the statute was passed any without evident consideration its applicability to juvenile (pointing offenders. See id. out absence of evidence indicating Congress legislatures that and state considered the applicability capital punishment to minors legislation). That effect, the c, “waiver statute” then in in tandem with section would fourteen-year-old have sanctioned the a execution of juvenile offender tried as an is adult further indication Legislature did not on application focus penalty death (1982) to juveniles. (current See 2A:4-48 N.J.S.A. version at 2A:4A-26).33 N.J.S.A. legislative 33Indeed, before the death shortly statute received final penalty Legislature c. a
approval, statute, L.1982, revised waiver 7 passed 77, § juveniles differential treat historically accorded The law has 104, Oklahoma, v. 455 U.S. many respects, Eddings ment 12, 1, 11-12 n. & n. 71 L.Ed.2d 115-16 & (must eighteen years old to (1982); N.J.S.A. 9:17B-1 & n. etc.), we cannot contract, marry, buy, property, or sell was intended “any person” language lightly presume purview juveniles as See Cahn sweep its tried adults. within (where Allen, (Sup.Ct.1940) a statute v. N.J.L. would protected application class and applicable its is face public policy, court should pre-existing be inconsistent abrogate that not intend to Legislature did assume that Rivera, 85 N.J. Loan Ass’n policy); Guttenberg Sav. & cf. (1981) (if modify legislature intended to established man rights, straightforward do “in some it would so property ner”). amendment, legis- evident the absence of
Irrespective of
regarding the
serious concerns
consideration
raise
lative
would
AMN,
application
defendant. See
validity of
statute’s
Bd.,
Township
Leveling
93 N.J.
Rent
Inc. v. South Brunswick
(“where
of a
(1983)
that the drafters
statute
it
clear
situation,”
specific
contemplate
or
did not consider
even
“literalisms”);
language
plain
over
probable intent controls
Rivera,
85 N.J.
Guttenberg
& Loan Ass’n
Sav.
*45
modify
(court
legislative
find
intent
& n. 4
would not
626-27
legisla-
with landlord-tenant
mortgagee
relations
—sub-tenant
legisla-
the
Act or at
no reference
the
tion where there was
Co., Inc.,
Ins.
hearings);
Nationwide Mut.
Sheeran v.
tive
cf.
31, 1983,
2A:4A-26),
(codified
that continued
December
at N.J.S.A.
effective
jurisdiction
age
waiving juvenile
at
The State
fourteen.
for
court
minimum
period
passage of
two
given
time
these
the short
of
between
contends that
exposed
acts,
juveniles
Legislature
to the
would be
must have realized
relationship between the two
are
satisfied that the
sentence. We
not
death
Thompson v.
support
State's conclusion.
is sufficient
statutes
Cf.
—
at-,
(waiver
Oklahoma, supra,
do
n.
statutes
108 S.Ct.
2694
24
U.S.
minors);
punishment
legislatures’
propriety
capital
for
imply
not
views
J.,
(O’Connor,
(same).
concurring)
id.
S.Ct. at 2706
108
548,
(1979)(rejecting argument
legisla
80 N.J.
556-57
that the
apply
ture did not
judice by
intend statute
to situation sub
noting
legislature
been
had
made aware of such
potential application
public hearings);
Prejean
the bill’s
v.
Blackburn,
(W.D.La.1983)
F.Supp.
(legislative
seventeen-year-old
intent
subject
penalty
to death
found
state
year
where
constitution made seventeen
olds adults for
jurisdiction,
waiver),
eliminating
criminal court
need for
aff'd,
(5th Cir.1984).
to an
“by
democratically
affirmative
conscious decision
legislature,”
153, 175,
elected
Gregg Georgia,
v.
428 U.S.
2909, 2926,
(1976),
49 L.Ed.2d
surely
not
through
reject
argument
inadvertence. We
the State’s
that “it
unimportant”
legislature
whether the
considered the matter
long
language”
as
brings
so
its “choice of
the instant facts
Thompson Oklahoma,
within the reach of the statute. See
—
-,
(O’Connor, J.,
U.S.
101 punishment different from penalty, context of the death “a degree,” v. all sanctions kind rather than Woodson other 2978, 280, 303-04, 2991, Carolina, 96 49 428 S.Ct. North U.S. 944, (1976), the institutional deference accorded L.Ed. 2d 961 by penological judicial choices branch legislative branch’s legislative “judgment.” exercise of See depends on an actual — at-, Oklahoma, 108 at supra, v. Thompson U.S. (state J., (O’Connor, concurring) cannot execute fifteen- 2711 lacking year-old legislation “the earmarks of defendant under of required we have for other kinds careful consideration that leading penalty”); Georgia, v. 433 decisions death Coker 982, 584, 2861, 2872, (1977) 997 97 S.Ct. 53 L.Ed.2d (court J., C.J., by Rehnquist, dissenting) cannot (Burger, joined (emphasis sup legislative judgments”) override “considered 175-76, at 49 plied); Gregg, supra, 428 U.S. 96 S.Ct. (deference legislative judgments at 816 is owed to L.Ed.2d decisions). Ramseur, (Court State v. N.J. But cf. by or more of the Legislature was motivated “one “assume[s]” all well-recognized penological purposes underlying criminal sanctions”). part insist on our on some indicia Failure would, amici, by by as stated “authorize death such an exercise oversight.” legislative history plainly con- legislative and its
The 1986 amendment one from the silence firm the inference would draw i.e., concerning juveniles, it not the legislative “that was record eligible capital for Legislature juveniles to have intent * * Statement, punishment Judiciary *.” Senate Committee (bill act); “clarify” Biegenwald, see v. supra would State (1987) (amendment accompanied state- 63-64 106 N.J. provide per- clarify existing statute can proclaiming ment legislation); Matawan evidence of intеnt behind earlier suasive Bd., (1968) County N.J. Borough Monmouth Tax (amendment “may discovery legislative for be resorted to Serrone, amended”); in the enactment intent (elimination from statute phrase “extended term” helps meaning applied its as conviction make clear after Moreover, case). Legisla- that the we are confident defendant’s *47 operate apply ture intended the to retroactively amendment case; legislative history to defendant’s above detailed speaks unmistakably preclude of intent an to the execution of juvenile any offenders under the 1982 Act. See Senate Judi- (amendment ciary Statement, supra, Committee clari- “would fy” juvenile “may death[;]” that offenders not be sentenced to (em- applied “this should be pending to cases” clarification supplied)); supra (statements Russo) phasis at n. 82 of Sen. (the will death penalty applies amendment ensure “never” to Committee, juveniles). Compare Judiciary Senate to Statement (November 29, 1984) (proposed S-950 amendments to death 178) statute) (passed (“In penalty enacting as A. c. bill, amendments contained in Legislature this the intent of the only prospective changes. effect is to The amendments are not apply retrospectively intended to or to affect cases now on (discussed in appeal.”) Biegenwald, supra, 106 & N.J. 64-65 12). n. legislation, function of “curative” or “ameliorative” such amendment, repair this consequences legal
as
“is to
of
* * *
accident or mistake
the failure of the lawmak-
[such as]
provision
to make
ers
for unforeseen circumstances which
* *
provided
Singer,
should have been
for
N.
2 Suther-
(Sands
Statutory
land
41.01
Construction
4th ed.
§
rev.) (hereinafter Sutherland).
Legislature pos-
That the
power
prescribe
application
sesses
the retroactive
of
Gibbons,
ameliorative laws cannot be doubted. See Gibbons v.
supra, 86
523 (citing
N.J. at
In re Smigelski,
Further, presumption against applica retroactive statutory interpretation," “is no more than a rule tion Rothman, (1974), and can be 65 N.J. Rothman v. intent, contrary legislative either by an indication of overcome *48 itself, implied language statute or in its expressed in the of the Where, Gibbons, 86 522. supra, v. purpose. Gibbons N.J. here, present, it is “well-established as such an indication is * * * apply direct will appellate that an court оn review * * * in effect at the time of its decision statute [so as] by legislative body policy current declared effectuate the ** Council, Township Cedar Mayor *.” Kruvant v. & Grove, (1980); Jersey v. Ventron accord New N.J. (“when (1983) Legislature has Corp., 94 N.J. given retroactive clearly that a statute should be indicated effect, give effect it will violate the will it that unless the courts injustice”). or result a manifest constitution operate cannot retroac The State contends the amendment as tively expressly text does not mandate because the itself however, “rule,” only prospective application much. The mechanistically every guide, applied “is not general to be Gibbons, At all supra, 86 at 522. times case.” v. N.J. Gibbons fundamental “primary regard given must [a statute’s] be, spirit of the law will control the purpose,” if need “the Blair, Builder’s, Owners, Ass’n v. Managers letter.” N.J. (1972); Township Bd. Piscataway 60 N.J. see of Educ. (1981); n. 6 316-17 & Suter San Caffiero, 86 N.J. (1979). Co., More 81 N.J. Angelo Foundry & Mach. alone, over, contrasted when text amendment 20:11-3, read to warrant provisions of can be other N.J.S.A. statute’s other application. the murder retroactive Whereas convicted,” simply “person sentencing provisions speak two b, c, juvenile exemption applies “juve- sec. amendment to a * * nile who has been tried as an adult and convicted Sec. Additionally, g (emphasis supplied). phraseolo- the “has been” gy markedly Legislature’s from the differs amendment to sec- e, passed g, speaks tion at the same time as section which in the tense; i.e., fails, present applying whenever “the defendant * * L.1985, 478, appeal refuses to *.” 1. An c. ameliorative § * * * applicable statute made to someone who “has been tried may logically preceding and convicted” extend to convictions its enactment, especially light of the aforementioned distinctions provisions.34 from other event, any
In presses at the same time the State this text- argument, legislative purpose based it concedes the was to legislation enact “pend retroactive and that defendant’s case is ing” contemplated the sense the Committee Statement * * * (“ cases”). applied pending this clarification should be above, As Legislature’s regarding stated we find the intent retroactivity unequivocal, give and hence will it full effect. 478; Jersey Corp., supra, New v. Ventron atN.J. Kruvant Grove, 440; v. Cedar New Jersey Builders v. Blair, supra, 60 Accordingly, g N.J. at 338. we hold section applicable case; hence, to defendant’s if retried and convicted *49 murder, may only pursuant he be sentenced to section b. apart Legislature’s
We add as a final note that from the concerning retroactivity, intent notions of fundamental fair- ness, by invoked this in Biegenwald, supra, Court State v. 13, 65-67, application N.J. to order the retroactive of a burden- of-proof c, amendment to section would likewise demand retro- application juvenile-offender
active exemption in this Indeed, Attorney case. vigоrously challenged General has sentencing-related defendant’s constitutional statutory and ar- guments, public policy but concedes that “sound and fundamen- ” * * * least, very 34Atthe the insertion of "has been would render the text ambiguous respect application, making legisla- to retroactive resort to the history appropriate any statutory tive under rule of construction. singled out to be the not be dictate that defendant tal fairness under eligible for execution executed or even only juvenile ever law.” penalty death our current reversed, matter is re- are and the convictions
Defendant’s proceedings not inconsistent Law Division for to the manded opinion.35 with this J.,
HANDLER, concurring. capital murder and was convicted In this case defendant con- defendant’s The now reverses to death. Court sentenced sentence, his confession was holding that death viction and fifth amendment and in of his admitted violation improperly that his state privilege against self-incrimination state-law impartial rights to trial a fair and and federal constitutional publicity. prejudicial result of as a jury were violated applied cannot be penalty death also holds that the Court juvenile offender. as a defendant expressed by the Court’s reasoning and result
I in the concur however, complete- explain more separately, opinion. I write enhanced understanding applying an importance ly cases, principle a capital appellate review standard of This instant case. follows in the part, least in majority, willingness to conduct expressed its previously had Court than is capital in cases of the record stringent review more Ramseur, 106 N.J. appeals, v. criminal State required other itself Nevertheless, in Ramseur (1987). neither 123, 324 n. 84 (1987) Court did the Biegenwald, N.J. nor State entail heightened standard would clear what such either make have it would review than a different actually conduct any other case. undertaken of review standard a different application
Nor is the case, Bey this accompanies in the decision that evident follow Indeed, failure to (1988). (II), 112 *50 further defendant’s address need not the Court of this resolution 35In view penalty statute. concerning death and the his convictions claims 106 (II),
apply this enhanced standard in Bey invoking while heightened case, of the in presents, review record this in my opinion, incongruous comparison. an majority today pro- apply fesses to capital a standard of in review cases that is searching” suggestion “meticulous and but eschews the the standard should be further defined and modified. Ante at however,' 91-94. This yield, reluctance should light in principles vindicated, constitutional that must great- and the consistency er to be realized in the capital resolution of cases. Hence, debate, me, it seems to should be about what be, standard should not about whether the standard should exist. impels This belief me attempt to elaborate the stan- dard of applied cаpital-murder review that must be prosecu- so, I minimizing tions. do not my agreement with the Court on the essential issues of this case.
I. The foundations for an enhanced appellate standard of re capital view cases have been laid in the United States Supreme repeated Court’s recognition qualitative that “the dif ference of death from punishments all other requires a corre spondingly greater degree of scrutiny____” v. Ra California mos, 992, 998-99, 103 U.S. 463 3446, S.Ct. 3452, 77 1171, L.Ed.2d see (1983); 1179 Mississippi, Caldwell v. 320, 329, 472 U.S. 105 2633, 2639, S.Ct. 231, (1985) 86 L.Ed.2d 239 (per Marshall, J.); Oklahoma, Eddings 104, U.S. 117-118, 455 869, 102 S.Ct. 878-879, (1982) (O’Connor, 71 1 J., L.Ed.2d concurring); Beck v. Alabama, 625, 637-638, U.S. 447 2382, 100 S.Ct. 2389-2390, 392, (1980) Stevens, L.Ed.2d 402-03 (per J.); Lock Ohio, ett v. 586, 604, U.S. 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, (1978) (per Burger, C.J.); Florida, Gardner v. 430 U.S. 349, 357-358, 1197, 1204-1205, 51 L.Ed.2d 401-02 (1977) Stevens, (per J.); id. 363-364, 97 S.Ct. 1207-1208, L.Ed. 2d (White, J., 405-06 concurring judgment); Wood Carolina, son v. North 280, 305, 96 S.Ct. (1976)
L.Ed.2d (opinion Stewart, Powell, Stevens, JJ.).
107
in
acknowledged
special appellate
their
role
Many states have
by statutory provisions
judicial
or
decisions that
capital cases
capital
appeals.1 States
exacting
mandate
review of
murder
imperative by providing
independent
for
responded
have
to this
penalty, e.g.,
imposition
the
of the death
appellate review of
Lewis,
Harding, Brogdon, and
by requiring
of the
review
e.g.,
existed,
aggravating
jury’s finding that an
circumstance
766,
1202,
(1985),
Fetterly,
v.
109 Idaho
710 P.2d
1208
denied,
870,
239,
(1986);
cert.
107 S.Ct.
L.Ed.2d
93
164
U.S.
479
State,
299,
1000,
(1979),
v.
185 Mont.
605 P.2d
1019
Coleman
2952,
64 L.Ed.2d 831
denied,
970, 100
cert.
446 U.S.
S.Ct.
reviewing
only
findings
1Many
require
states
the
court not
to make fact
courts,
sentencing
independent
independent of the
but also to conduct an
verify
propriety
weighing
aggravating
mitigating circumstances to
the
of
of
and
See,
16-11-103(7)(a)
e.g.,
(Supreme
given
Colo.Rev.Stat. §
death sentence.
sentence,
[any
having regard
propriety
death]
"shall review the
of
Court
offender,
offense,
public
nature of the
the character and record of the
interest,
imposed, including
sentence was
and the manner in which the
based’’);
sufficiency
accuracy of the information on which it was
Ohio
and
(Ohio
Supp.
Supreme
independently
and
Code
2929.05
Court "shall review
§
weigh
in
evidence disclosed in the record ..."
all of the facts and other
Thus,
sentence)
added).
assessing
(emphasis
propriety
of a death
Alabama,
aggra
weigh
Appeals
independently
"must
the Court Criminal
they
vating
mitigating
are sufficient
circumstances to determine whether
970,
(Ala.Crim.
State,
support
v.
380 So.2d
977
a sentence of death.” Lewis
278,
added);
Harding,
App.1979) (emphasis
670 P.2d
see also State v.
137 Ariz.
1017,
383,
denied,
1013,
(1983),
104
This State’s special murder statute reflects the nature penalty of the death provision protections in its not available to other criminal defendants. The statute differentiates death penalty prosecutions from prosecutions other criminal by re quiring capital that given convicted offenders right appeal direct to this Court. N.J.S.A. 2C:11-3e. The distinctive statutory sentencing scheme uses a weigh aggravating mitigating factors imposing as the method for a death sentence, separating capital thus sentencing murder from all sentencing. other criminal 2C:11-3c(1). N.J.S.A. The stan governing dards admissibility mitigating evidence, moreover, extremely are relating liberal while those aggravating to the 2C:11-3c(1), factors remain L.1985, strict. N.J.S.A. amended c. 2. The specifically statute further allows for § three possible penalty phase by stating verdicts non-unanimity that is legitimate requires determination and a non-death sentence. 2C:11-3c(3). (II), Bey N.J.S.A. See State v. atN.J. 158; Ramseur, Moreover, State N.J. at 311-15. Legislature capital amended the murder statute to exclude juveniles from penalty though they the death even can be tried subjected any as adults and punishment. other criminal Further, 2C:11-3g; legislative N.J.S.A. ante 96-99. understanding heightened protections required were for a capital prosecution murder is reflected the statement of the sponsor, bill’s Senator John Russo: rigorous has But, bill some rather in it for the of the provisions protection being defendant, ultimate as difficult as that theory penalty paid,
will be on all of us who
have a
when that
we want
it,
comes,
part
day
contingency
least feel we have tried to cover
for the
every possible
protection
the defendant and
will
it
be utilized
in the most extreme cases.
hopefully
only
Hearing,
(Feb.
N.J. Senate
Committee, Senate No.
at 1
[Public
Judiciary
1982).]
evolving understanding
This
important
ramifications of
capital
directly
causes is also
indirectly
reflected
in our own
132, 144(1984),
In
McCrary,
decisions.
State v.
97 N.J.
we held
that the
must
aggravаting
serve a notice of
factors on
*53
prior
defendant
to trial and that the defendant must
afford
be
opportunity
challenge
ed the
pretrial
these factors in a
motion.
beyond
The Court went
the dictates of the statute to
require
judicial
this limited
prosecutor’s
review of the
discretion
proceeding
because
a criminal
takes on the character
“[w]hen
case,
capital
authority
only
of a
exercise of
the
such
is not
tenable,
absolutely imperative
it is
to ensure fundamental fair
Davis,
ness to
in
Similarly,
a defendant.” Id. at 139.
State
(1984),
statute 1985 to 2; L.1985, c. 1. and Koedatich. L. c. § § Court, moreover, special capital in murder has a role This It is prosecutions; must function as the final fail-safe. it review, proportionality through its conduct of importuned, it, is, Russo penalty put as Senator that the death ensure only cases.” N.J.S.A. 2C:11— in the most extreme See “utilized only “most are ensuring In these extreme” cases 3e. selected, supervision for comprehensive appellate standard below, substantially of the record one enhanced and review causes, customarily applicable ordinary criminal beyond that is essential. states, should, as
Like courts in other
this Court
a conse
quence
appeal posture
penalty
of the
of death
cases and
direct
review,
independent
an
proportionality
the mandate of
conduct
Court,
searching
record below. This
review
the
cases,
itself,
reviewing
raw
of the
capital
is
the
material
trial
our
appeal;
and not a record that has been refined
review
necessarily
different,
record therefore must
be of a
more
independent
searching, nature. A critical and
examination of
required.
entire
made at the trial level is
Conse
record
capital
quently, the
of review for
causes counsels for
standard
less,
customary,
the trial
not more or even
deference to
court’s
Ramseur, supra,
factual determinations.
Cf.
(deference
to trial court’s determinations on
voir
prosecution);
capital
Biegenwald,
murder
State v.
su
dire
pra,
(same).
gage scrupulous in a and meticulous review of record findings rulings by appeal, including all of fact аnd the trial
Ill court. Once this completed, question review is becomes what substantive standard of reversibility guide appel- should late my opinion, review. In this enhanced review of the record complemented must be by rigorous substantive standard for determining whether errors searching adduced from this review are A reversible. review of application of the substantive in standards cases before this Court and the United States Supreme exposes, Court my opinion, in the need fully for a defined substantive standard of review in penalty ap- death peals. recognized
This Court has principle unique that death is a requiring sanction procedural protections. uncommon State v. Ramseur, supra, 324; Williams, N.J. State v. 93 (1983). The commitment to an enhanced standard of capital review for recognition cases and a capital prosecu- tions are fundamentally any different from prosecutions other Williams, supra, expressed was State v. this Court when it stated:
This heightened of fairness —and requirement particularly impartiality —is categorical cases which the defendant faces death. The death is a penalty for trial fairness. imperative N.J. at [93 61.] scope
The nature and height- Court’s commitment to a standard, however, ened In State v. Rams- remains unclear. eur, majority endorsed in principle heightened scrutiny of the record respect prosecutor’s penalty actions in death prosecutions, stating: Because death is a harsh sanction this Court of will uniquely more necessity prejudice resulting find from
readily misconduct in a case prosecutorial capital than in other criminal matters. N.J. at
[106 324.] Similarly, in Biegenwald, this Court reiterated its commitment “scrupulously prosecutorial cases, review” capital conduct in 106 N.J. cases, however, In 40. both the Court failed to explain proposed the standard it adopt and the results it Moreover, reached. dispositions its height- did not reflect the scrutiny ened it claimed to have undertaken. The Court de-
112 ferred, fact, findings in in the trial respects several court’s independently verifying instead of such lower court determina- Ramseur, 260; Biegenwald, 106 at tions. See N.J. at 106 N.J. 29-30.
If this
standard of substantive review remains unde
Court’s
fined, the
to derive a
standard
federal Court’s efforts
consistent
embody
principle
review
that “death is
have
of
different”
inconsistent,
confusing
if not
In
been
incoherent.
Caldwell
a
Mississippi, supra,
capital
Court reversed
sentence
prosecutorial
“sought
of
comments that
minimize
because
jury’s
responsibility
determining
appropri
sense of
for
phase,”
during
penalty
ateness of death made
472
atU.S.
341,
2646,
The
105
86
at 247.
identified
S.Ct.
L.Ed.2d
Court
say
its criterion
review as
“Because wé
that
of
follows:
cannot
decision,
sentencing
this effort had no
on the
that
effect
reliability
decision does not meet the standard of
that
added).
Eighth
requires.”
(emphasis
A similar
Amendment
Id.
stringency
in
was exhibited
the recent case of
v. Missis
Gray
648,
2045,
sippi,
(1987),
481
107
in
endorsed either the “no effect” standard In “possible Gray. Caldwell or the effect” standard Dar- den v. 91 L.Ed.2d Wainwright, decision, Court, explicitly rejected (1986), in a 5-to-4 “no-effect” standard to reverse application of the Caldwell improper prosecutorial comments capital sentence because guilt phase limiting to comments “that during the Caldwell sentencing process____” its role in the mislead the as to *56 15, 15, at 158-59 n. n. 106 at 2473 n. 91 L.Ed.2d Id. at 183 S.Ct. satisfactorily The that could be 15. Court believed Caldwell in made distinguished comments Caldwell were because “[t]he approved by the trial sentencing phase the of trial and were at case, guilt-inno- the comments were made at the judge. In this trial, reducing they had stage greatly of the chance that cence sentencing.” any effect at all on Id. Brennan, Blackmun, joined by in Justices dissent
Justice
however,
Stevens,
Marshall,
argued persuasively,
that
easily distinguishable. The Darden dis-
was not so
Caldwell
majority’s opinion in Beck v.
relied on the seven-member
sent
Alabama,
in
the
stated: “To insure that
which
Court
penalty
imposed
is
on the basis of ‘reason rather
the death
...
emotion,’
procedural rules
caprice or
we have invalidated
than
sentencing determi-
reliability
to diminish the
of the
that tended
reasoning
apply
must
to rules that dimin-
nation. The same
447
reliability
guilt
the
determination.”
U.S.
ish the
of
added).
2390,
638,
(emphasis
403
The confusion over the
substantive standard of review
applied
penalty
crystallized
to be
in death
cases
was
—Texas,
-,
recent case of
Satterwhite
108 S.Ct.
(1988).
Satterwhite,
larger sentencing elsewhere____ in the context capital than Because of the sentencing moral character of a capital determination and the substantial discretion predicting the hands of the placed sentencer, the reaction of a proceeding sentencer to a untainted constitutional error on the basis of a dangerously cold record is a speculative enterprise. — [Satterwhite Texas, S.Ct. at 1800.] at-, Justice Marshall reasoned that inappropri- harmless error is an ate capital standard in a sentencing context, “[ujnlike because guilt innocence, the determination of which largely turns facts, an objective evaluation of question whether death is appropriate requires sentence a profoundly moral evalua- tion____” Id. clear, therefore, It is from this Court’s failure and the Su- preme inability Court’s to define a uniform substantive stan- dard of cases, review for penalty death that until such a standard is defined applied consistently, the results of appeals various irreconcilable, will be as Caldwell is with Darden, Ross, Gray (I) is with Bey (II). is with Bey It has become a matter of some urgency explicate fully more “heightened standard of review” major- that even the Ramseur ity agreed capital should exist in cases. I offer following analysis as a stimulus to thought. further commend,
I initially, concurring opinion in Satterwhite. capital Because the sentencing moral, intrinsically decision is rather exclusively evidentiary, decision, than an harmless error inadequate is an standard in the capital context of a murder prosecution. insight applies force, This equal in my opin- ion, jury’s determinations, *58 to the guilt-phase for the reasons Alabama, identified in Beck v. and the in dissent Dar- Wainwright, den v. supra; guilt-phase because the record is routinely moved into evidence as the foundation penalty- of the phase judgment, any distinction phases between the two disin- in capital prosecutorial A a continuum which
tegrates. case is interruption or from the alteration trial evidence moves without eligibility of death to the trial of guilt and the determination of guilt-phase of sentence. A determi- imposition and the penalty kind, therefore, guilt in a capital in differs from nation a case in the normal criminal case. To avoid confu- determination arise, I error easily could believe that harmless should sion that appellate as a standard of review of eschewed substantive be penalty in death cases. error governing capital cases should em-
The standard review quantify elements can serve both direct and to brace that reversibility. I standard believe the basic determination implications reversibility pervade must the moral that reflect a end, taking capital proceeding beginning from while into pragmatic relating account considerations to the administration review, words, justice. criminal This standard of in other rigorous well which beyond must be and escalated time, however, customarily should employed; at the same it not blindly nullify essayed prosecution in everything under review.
Accordingly, required beyond be the State should to show doubt error is not dimen- reasonable where the of constitutional sion, there prejudice affecting was no realistic likelihood of arising from jury’s deliberations the error. Absent that demonstration, lead to Where the error must a reversal. dimension, however, error is of constitutional this Court should standard; guided by the effect” “no the substan- Caldwell protect against tive test must be elevated to the conse- further required quences of constitutional error. The State shall be error, arising pre-penal- show that a constitutional whether itself, ty phase prosecution penalty phase or in the had impose “no effect” on the the death sentence. determination difficult, meet, impossible, though This is a not standard to but view, appropriate one, my for an errors of constitutional magnitude proceedings. penalty death *59 entails, in capital standard of review casеs The enhanced therefore, identifying then two-step analysis in first and First, reviewing exercise analyzing errors. court must making heightened scrutiny independence of the record and respect rulings determi- findings with to trial court and its own through heightened nations. Once errors are identified this process requires in-depth an assessment of scrutiny, the second comprehending every phase prosecution of the under all errors standard derived above from federal and state the substantive sources. constitutional departure from step process
Each
in this review
involves a
appellate
heightened scrutiny
of
review. The
the norms
record,
predicate of this enhanced standard of review
the first
causes,
capital
requires
rigorous methodology, ap-
of
a more
proach
judicial
toward
review in relation to the
and attitude
procedural pos-
scrutiny
record
This
derives from the
below.
appeal,
a direct
and from the mandate of
ture of the case as
second,
proportionality
key,
review. The
feature of the
different,
review,
requirement
of a
enhanced standard
clarified,
determining
stringent
more
substantive test for
error,
ultimately
understanding
derives
from our
reversible
assuring
subject
categorical imperative
are
to a
for
that courts
capital
causes.
judicial
fairness in the
administration
Williams,
require the
The standard thus does not
supra.
preju-
any
that the error resulted in
defendant to demonstrate
rather,
beyond
impact;
enjoins
it
the State to demonstrate
dicial
life,
doubt,
it
to take
the absence
a reasonable
when wishes
gaining
any
likelihood that an error committed
realistic
deliberations, and,
jury’s
with
prejudiced
death sentence
errors,
any
effect
respect
constitutional
the absence
jury’s deliberations.
whatsoever on the
in their
components of the standard are unified
The two
prose-
encompasses
phases
capital
of a
murder
scope; each
all
cution,
stages of the
including
accusatory, pretrial,
and trial
guilt and
prosecution.
any
I
distinction between
believe
two-part
prong of the
test
penalty phases
purposes
for
of either
appellate
reasoning
for
review is inconsistent
of Beck
Moreover,
Alabama,
it
supra.
particularly
would be
anoma-
Jersey,
phases
successively
lous in New
where both
are heard
largely overlapping evidence
before
same
*60
where,
acknowledged,
aggravating
has
the
as
Court
factors
by
jury during
sentencing phase
considered
“are func-
tionally indistinguishable,”
guilt-
because of the breadth of the
murder,
phase
capital
definition
“from elements of the
Ramseur,
27;
offense.”
at 201 n.
Biegenwald,
N.J.
(noting
similarity”
aggravating
N.J. at 59
the “functional
offense).
factors and elements of an
overarching
Both the
and this
responsi
Court have an
bility
assuring
application
the fair and rational
of the death
Koedatich,
penalty.
(1984).
See State v.
Because
responsibility
independent
this
demands an
and
re
exhaustive
record,
of the
contemplated by
view
the errors
this standard
claimed,
by
species
should not be limited
of error
such as
prosecutorial comments. The substantive standard must be
applied, moreover,
presented
appeal,
to all errors that are
subject
objection
whether or not the
of an
at the trial or raised
by
for the first
appeal
by
time
defendant on
or noted
the Court
reversibility
may
itself. The
of error
not turn on whether it
acquiesced
by
was
in or caused
the defense counsel at the trial
level.
Harper,
N.J.Super.
(App.Div.),
State v.
Cf.
den.,
(1974)
certif.
(appellate
disregard
A principal two-pronged virtue of this test is that combin- ing thorough-going stringent review of the record with a standard, requires appellate substantive it court to see the Thus, case as a whole. each error identified in the Court’s analysis critically assessing of the preju- record is evaluated dice both for its individual effect on deliberations and for its on the structure of the entire case. Issues such as the effect instructions, effect of curative or the deleterious ameliorative publicity, depend part normally thus on such effect will important strength proofs less factors as nature degree of other and the nature errors. imposes
The enhanced standard of review bur- substantial State, imposes unique on the but it death is a den because appellate applica- sanction. The standard of irreversible review penalty death cases cannot accommodate the room for ble to error that is tolerable in cases where life is not at stake. The imperative margin for fairness demands that the of mistake be diminished where the effect of an error would irremediable. be rather, perfection prescribed; It is not that is it is a level of process error-free that is commensurate with the criminal sanc- appreciated tion of death. It should thus be that this enhanced unique capital special standard is causes. This standard not, therefore, not, applicable need and indeed should *61 non-capital prosecutions. jurisprudence governing criminal The distinctive; capital truly overriding goal murder is an our require develop jurisprudence penalty should be to death law to influencing possible distorting to the extent without governing general settled law administration of criminal justice. review, sum, governs appellate
A different standard causes; disposition capital unique this standard of review procedural aspects, materially in both its substantive and and is protective, consequence severity penal- more as a of the of the generаlity appeals. ty, applicable than that to the of criminal applied consistently, expressly To be this standard must be defined, followed, consciously uniformly as to all invoked appeal. errors on
II. willingness apply part the first of this en- Court’s hanced standard of in this case is its review evidenced disposition, reflecting independent exacting an actual scru- record, tiny concerning the confession and the midtrial publicity issues.
A. The Court rules that defendant’s relating confessions to the Alston murder were obtained in violation of his fifth amend- privileges against ment and state-law self-incrimination. The police Court observes that began question when officer incident, defendant about the immediately Alston he invoked his right by “[indicating] to remain silent he did not want to talk to it____” us about Ante at 64. properly recognizes
The Court right suspect that the of a during remain silent interrogation the course of custodial is one guaranteed by amendment, see, both the federal fifth e.g., Arizona, 436, 460-61, 467, Miranda v. 384 U.S. 86 S. Ct. 694, 715-16, (1966); 16 L.Ed.2d Michigan Mosley, 96, 103, 321, 326, (1975), L.Ed.2d law, Hartley, 252, 260, 262-63, and state 103 N.J. (1986). recognizes 284-86 police It also that continued interro gation, rather interrogation, than the immediate termination of right after a defendant has invoked his to remain silent will any subsequent inculpatory render statements unconstitutional law, ly compelled as a matter of and hence inadmissible. Ante at 68-73. agree
I emphatically analysis with this Court’s and conclu- sion, express only and can consternation that the Court did not searching analysis companion undertake the same in the case of Bey I no legally significant II. see distinction between defend- expression ant’s nothing this case that “he would have *62 II, say” expression and his in Bey occurring in earlier the ongoing interrogation, that “he wanted to think about it.” Each request by constitutes a the right defendant to invoke his because, stresses, to remain majority silent as the request to interrogation terminate ambiguous” “however scrupu- must be Kennedy, honored. Ante at 64 State v. 97 N.J. (citing lously Wright, (1984); (1984); State N.J. 119-20 (1982)). McCloskey, 90 only 26 n. explanation incongruous I in can offer for this difference result (II) Bey the same engaged in in is that the Court has not record, of the same heightened scrutiny applied and has at ordinary determining reversibility an for the most standard error.
B. determined, view, correctly my The Court has that the trial publicity court’s efforts to deal with the midtrial were inade- quate resulting prejudice and that the mandates a reversal of defendant’s conviction. Ante 91. The states: Court relying
We believe the court erred in on its instructions alone, protective highly prejudicial conclude that due to the nature of the information contained in these and the realistic it have reached one or articles, possibility may jurors, jury refusal the violated fair more the the court’s defendant’s poll rights trial that his convictions be reversed. requires [Ante 81.] I concur in the Court’s determination that the trial court safeguard jury by extrane- failed to defendant from a untainted Court, prejudicial publicity. pointed ous As out the trial throughout question jurors individually court refused poll jury generally concerning the articles at issue. The sequester jury night until the final court also refused to Ante at 56-57. As the majority correctly penalty phase. holds, light the trial court’s refusal to of the circumstances important, poll jury constitutes reversible error. Most it is rulings scrutiny the enhanced of the record and the trial court’s majority conclude under a conventional stan- that lead dard of for error that the trial court committed reversi- review failing adequately exposure to shield the from ble error publicity. to that majority rule in adopts
The Court now and follows the dealing prejudicial publicity. approach, midtrial This *63 degree scrutiny stage the of carries forward to the trial
which Williams, supra, potential the combat mandated may the resulting publicity from affect prejudice for jury free from jurors, should ensure that the will be selection against a publicity when it considers evidence the taint Williams, espe- court must conduct Under the trial defendant. change voir dire searching and consider the need for a cially publicity presents pretrial in event of extensive venue 93 N.J. prejudice. 67-69. The realistic likelihood of Williams, requires that majority’s opinion, consistent with trial vigilance protect jurors exercise the same from courts publicity. midtrial taint of commitment to majority’s opinion reinforces this Court’s publicity by requiring that the court free from tainted during measures to ascertain whether
undertake effective to such information. See ante jurors exposed trial were Williams, Thus, conjunction 86-90. in with this Court has any provided that trial courts must undertake to eliminate public- potential prejudice resulting pretrial for from or midtrial ity capital prosecution, requiring in in effect enhanced murder guaranteed scrutiny procedural protections by an enhanced rulings. the trial court’s
III. myself agreement opinion I find basic major Court in terms of its meritorious determinations of the appeal. particularly controverted issues on this I concur disposition publicity of the confession and trial issues. Court’s I satisfied that the treatment of the record on this am Court’s appeal fully aspect consistent with one of the enhanced review, namely, heightened scrutiny of the record. standard of express my hope I concurrence in the belief and that the Court apply heightened scrutiny conscientiously, will continue to this consciously comprehensive enhanced standard of will invoke a review, adopt a standard for reversible and will substantive responsive imperative error that is to the for present fairness capital appeals. should, all murder urge, It I rigorous be a *64 recognize standard that will exacting protection need for against protection errors and the utmost against constitutional error because a life is in the balance.
For expressed, join the reasons I in the determination of the Court to reverse defendant’s conviction and sentence.
For reversal and WILENTZ, remandment —Chief Justice CLIFFORD, HANDLER, and Justices POLLOCK, O’HERN, GIRIBALDI and STEIN—7.
For affirmance —None. JERSEY, PLAINTIFF-RESPONDENT,
STATE OF NEW (II), BEY MARKO DEFENDANT-APPELLANT.
Argued May August 2, 1987 Decided 1988.