*1 Justice PORITZ and remandment —Chief For affirmance GARIBALDI, HANDLER, O’HERN, STEIN Justices COLEMAN —6.
Opposed—None.
736 A.2d PLAINTIFF-RESPONDENT, JERSEY, OF NEW STATE BEY, DEFENDANT-APPELLANT. v. MARKO August 1999. Argued 1998 Decided October *11 II, Sylvia M. Defender and Wyk, Deputy Public Van Claudia Defender, cause Orenstein, argued the Deputy Public Assistant (Ivelisse Torres, Defender, attorney). Public appellant for Prosecutor, the cause argued Kenney, First Assistant Alton D. Prosecutor, (John County Kaye, A. Monmouth respondent for Prosecutor, of counsel Stalford, P. Assistant attorney; Mark brief). on the Foddai, General, Deputy Attorney
Catherine A. argued curiae, (Peter Attorrey Jersey cause for amicus General of New Vemiero, Attorney General, attorney). opinion of the Court was delivered
POLLOCK, J.
Defendant,
Bey, appeals
Marko
right
as of
under Rule 2:2-
1(a)(3) from the denial
petition
post-conviction
of his
relief
from his death sentence. He contends that he received ineffective
assistance of
penalty-phase
counsel at his second
trial for the
Specifically,
murder of Carol Peniston.
he maintains that his
attorney insufficiently investigated
presented
evidence to
support
mitigating
Bey
argues
factors.
also
that the ineffec-
tive
right
testify
assistance
counsel led to the denial of his
and his
of allocution. Defendant raises several other claims.
Among
Gerald,
them is the assertion that under State v.
113 N.J.
(1988),
I.
Facts jury knowingly convicted defendant of purposely or murdering Peniston. The felony also convicted defendant of murder, first-degree kidnaping, second-degree assault, aggravated *12 assault, first-degree aggravated first-degree sexual robbery, and third-degree theft. penalty-phase hearing, After the convictions, was sentenced to death. upheld This Court but Bey, 123, reversed the death sentence. State v. 112 N.J. 548 A.2d (1988) II). (Bey 887
Following
1990,
a second penalty-phase hearing
in
again
a
sentenced defendant
to death. This Court affirmed the death
Bey,
557,
(1992)
sentence. State v.
129 N.J.
(Bey
247
denied,
1164, 115
L.Ed.2d 1093
III),
S.Ct.
130
cert.
513 U.S.
(1995). Thereafter,
death sentence was
we found that defendant’s
334,
L.Ed.2d
(“PCR”).
relief
petition
post-conviction
a
for
Defendant
filed
court,
conducting
28, 1996,
an eviden-
without
On March
PCR
an
remanded for
hearing,
petition.
This Court
tiary
denied
claims.
hearing
ineffective-assistance-of-eounsel
evidentiary
on two
month-long hearing,
the court
a
the PCR court conducted
After
relief.
again
petition
post-conviction
denied
are de-
murder of Peniston
relating
facts
to defendant’s
The
(1988)
131-33,
II,
where she had attended computer living neither returned her alone, apartment who was divorced and Peniston, Ms. to work the next nor day. reported investigation involved in a [Ms. Peniston’s] car had been revealed that Subsequent four hours after ... 26, 1983, collision in Newark on April approximately one-car fingerprints High on the The defendant’s were left School. Ms. Peniston Neptune mirror. rear view Attilio Park interviewed on May 3, Asbury police At 3:30 p.m. approximately building in near an old industrial had found Ms. Peniston’s Robot, who pocketbook sh.;d near the her body discovered thereafter, Park. Shortly police Asbury following disclosed that Ms. building. 4,May An day, autopsy performed further that she disclosed dead for several days. autopsy Peniston had been strangled. on a sneaker and From assaulted, imprint beaten, sexually had been right lung, hemorrhaging of the fractured ribs and chest and from evidence of her Monmouth Dr. heart, Becker, atrium of the column, Stanley vertebral on assailant had stomped that Ms. Peniston’s examiner, medical concluded County however, was death, that the ultimate cause of Dr. Becker determined her chest. investigation strangulation. that characteris- ligature revealed Subsequent police those of coat were consistent with found on the victim’s tics of spermatozoa that was similar made an sneakers saliva, imprint on the victim’s chest. to the impression *13 receiving [On 6, defendant was arrested for stolen May Ms. Peniston’s property, Ford Granada. After five hours in defendant confessed to the police custody, murder.] gave He then a written statement, which he admitted that he accosted Ms. building Peniston in front of her and demanded from her. The apartment money coming, grabbed statement continued that when he heard someone he her and led ensuing her to the shed. he events, struck Ms. repeatedly Peniston, eight her, assaulted and took dollars as well sexually as the ear from her keys on While to Newark in her he pocketbook. way ear, collided with an iron fence alongside graveyard, and abandoned the ear. repetition, relating To avoid penalty-phase facts to the 1990 hearing retrial and the PCR are set forth in the relevant sections opinion. of this
II. Counsel’s Failure to Discover and Present Mitigating
Certain Evidence retrial, penalty-phase At the 1990 attempted prove (1) mitigating four factors: “defendant was under the influence of disturbance,” extreme mental or emotional N.J.S.A. 2C:11- 3c(5)(a)(“extreme (2) disturbance”); emotional age “defendant’s murder,” 2C:ll-3c(5)(c) (3) the time of the N.J.S.A. (“age”); capacity “defendant’s to appreciate wrongfulness of his con- duct or to conform his requirements conduct to the of the law was significantly impaired as the result of mental disease or defect or intoxication,” 2C:ll-3c(5)(d) (“diminished N.J.S.A. capacity”); and (4) “[a]ny other factor which is relevant to the defendant’s charac- offense,” ter or record or the circumstances of the N.J.S.A. 2C:11- 3e(5)(h) (“catch-all”). (Ms. witnesses, including
Four Bey Bey), Patricia mother; Horton, uncle; El, Clarence Wendolyn defen- aunt; El, friend; dant’s family and Juliet support testified in mitigating the catch-all factor. These witnesses described defen- *14 Bey’s drugs as well as Patricia and alcohol dant’s addiction of defendant. neglect physical and abuse Gary Dr. expert three witnesses: presented The defense also Young, Dr. a forensic Kay, neuropsychologist; a clinical John Pineus, neurologist. These psychiatrist; and Dr. Jonathan psychiatric condi- that defendant suffers from witnesses testified support mitigating by organic damage. To tion caused brain and diminish- emotional disturbance pertaining factors to extreme of the defendant’s account capacity, experts also related ed murder, mother, and his abuse of alcohol relationship with his to the Defendant’s statements drugs, aspects other of his life. and factor. support the catch-all experts were introduced factor, and jurors emotional disturbance Two found the extreme juror age and jurors factor. No found six found the catch-all jury unanimously concluded capacity factors. The diminished factors, prior aggravating beyond a reasonable doubt felony, murder, 2C:11-3c(4)(a), contemporaneous and N.J.S.A. mitigating factors. 2C:11-3c(4)(g), outweighed N.J.S.A. defen- hearing, represented counsel penalty-phase At the two counsel, McCauley, Aifer, co- and Donald dant: R. Diane lead ineffective assis- claims that he received counsel. Defendant now mitigation of the concerning presentation tance of counsel prepa- First, overall lack of questions Aifer’s evidence. defendant Second, alleges that trial. defendant penalty-phase ration for the support the they failed to ineffective because both counsel were Bey’s and Patricia abuse evidence of catch-all factor with sufficient deviance, defendant, untreated sexual neglect defendant’s defendant, counsel failed According to abuse. his substance witnesses, unreasonably not to decided potential interview several witnesses, evidence from to elicit certain and failed call other Third, that coun- maintains testify. witnesses who did “nonstatutory support four presented evidence to sel should have at the time of intoxication mitigating factors”: defendant’s abuse, defen- crime, substance to treat defendant’s the failure remorse, dant’s parole ineligibili- defendant’s life sentence and ty. evidentiary
At the PCR hearing, defendant introduced testimo- ny support from fifteen witnesses the ineffective-assistance-of- counsel claim. eight people The witnesses included whom Aifer preparation had not interviewed in for the penalty-phase Patterson, retrial: Cora girlfriend; defendant’s father’s Kim Al- ston, daughter; Evans, Patterson’s James Sullivan Patterson’s son; MeGloun, half-brother; El, Kenneth Mack defen- cousin; Stewart, Theopolis friend; dant’s defendant’s childhood Veltre, teacher; sixth-grade Kuttin, Armand and John League defendant’s Little baseball coach. Four witnesses whom *15 presented counsel had interviewed but penalty-phase at the appeared trial on Benjamin Bey defendant’s behalf: and Karrel MeGloun, brothers; younger El, defendant’s Ri defendant’s cous- in; Jackson, and Bernadine Phillips girlfriend defendant’s at the Additionally, time of the murder. Bey, Wendolyn Ms. El and Horton, Clarence trial, who had penalty-phase testified the 1990 again testified. argues
Defendant also that Aifer should have offered as wit- MeGloun, father, nesses Macko defendant’s Henry Bey, defen- brother, dant’s both of whom Aifer interviewed before the 1990 penalty-phase defense, however, trial. The did not call either as a in evidentiary witness the PCR hearing. attorneys
Several appeared at the PCR evidentia- ry hearing. Aifer preparation described her for the ease and explained strategy. her trial McCauley; Kinarney, James co- counsel for defendant in Cheryl Aston, his trial for the murder of (1988) Bey, see State v. 112 I); N.J. 548 A (Bey .2d 846 James Borman, Smith and Judith appellate attorneys; Timo- thy Hughes, Deputy boss; Public Defender and Aifer’s Matthew Astore, co-counsel on appeal sentence; direct of the death second Washburn, and Edward trial, co-counsel at the guilt-phase also testified. depart- into evidence welfare
Lastly, the PCR court admitted
officer,
by
records,
report
and a
Lois
probation
notes from a
ment
Nardone,
worker,
history.
concerning defendant’s social
a social
many
thirty-five witnesses and reviewed
Nardone interviewed
compilation of defendant’s life
to construct a detailed
documents
however,
testify.
court,
permit
history.
did not
Nardone
The
Standard
A.
Ineffective-Assistance-of-Counsel
justice
criminal
is a defendant’s constitu
Fundamental to
assistance of counsel. See Strickland
tional
to the effective
(1984).
80 L.Ed.2d
668, 104
Washington,
v.
466 U.S.
S.Ct.
penalty-
measuring
of counsel
test for
the effectiveness
Supreme
opinions
forth in the
of the
phase
capital
of a
trial is set
Strickland, supra, and of this Court
Court of the United States
(1987).
Fritz,
test,
42, 58,
That
in State v.
105 N.J.
however, dispels presumption competence might the other- strategic wise from a arise choice. Ibid.
A
satisfy
requirement
prejudice by
defendant can
showing
substantially
that counsel’s ineffective assistance
affected
jury’s penalty-phase
degree
deliberation to a
“sufficient
III, supra,
undermine confidence in the outcome.” Marshall
148
250,
Strickland,
(quoting
N.J. at
1
supra,
A.2d
atU.S.
698).
at
S.Ct.
80 L.Ed.2d at
The defendant has the
establishing
burden of
probability
reasonable
that the omitted
substantially
information
jury’s
would have
affected the
delibera
during
penalty
250-51,
tions
phase.
id. at
See
Defendant first representation that Aifer’s overall was ineffective. He contends that nothing Aifer did for months assigned after she was the case and that her efforts were both cursory untimely. particular, questions Aifer’s failure to retain a investigator social worker or to construct history. defendant’s social He also calls attention to her refusal to delegate any co-counsel, responsibility to McCauley. her
The State sufficiently counters that Aifer familiarized herself with the facts and the implemented law and that she a sound trial strategy. State, According to reasonably Aifer declined to instead, introduce cumulative history; evidence of defendant’s life she on important focused the most strategy facts. Her of connect- ing mitigation through evidence testimony expert witnesses *17 presented theory explained a acts. unified Therefore, history prepared by the introduction of a social a unnecessary. Lastly, argues mitigation specialist was the State investigation preparation pro- would not have that further reasonably any testimony duced would have affected the jury’s deliberations. in August
In this Court rendered decisions Cheryl Bey for Alston and Carol Peniston. trials the murders I, II, Bey supra. remanding In for supra; addition this ease trial, II, penalty-phase Bey supra, we vacated defendant’s new Alston, I, murdering Bey supra. conviction for and death sentence assigned Aifer to the retrial of the Alston The Public Defender penalty-phase of the Peniston case. case and the retrial of the appellate attorneys, Bor- Aifer met with defendant’s Smith and man, strategy in to discuss both cases. Smith and Borman importance working with emphasized the defendant’s mother recommended a social worker who could assist Aifer. Over case, year, except not work on either for the next Aifer did reviewing the case files. She did not contact a social worker or result, any investigator. August Public other As meeting lack of investi- Defender’s Office held a to discuss Aifer’s Despite inaction. gation. particular, Smith criticized Aifer’s meeting, representation Aifer continued her both cases. thereafter, began preparing for the Alston retrial.
Shortly Aifer Alston, again murdering Aifer After defendant was convicted particular, ease. In Aifer unsuccess- concentrated on the Peniston conviction as fully preclude moved to the use of the Alston murder aggravating an factor in the Peniston case. Because she needed ease, stay prepare Aifer moved to additional time 4,1990, court the motion Peniston trial. On June the trial denied penalty- August 1990 as the date to commence the and set phase hearing. immediately began focusing presentation on the of the
Aifer 21, 1990, Aifer, according to mitigation On her evidence. June *18 testimony, began “compressed, hard-working effort” to a PCR in-person conducted interviews of seven prepare the case. Aifer telephone and interviews with three other potential witnesses Bey, important wit- potential witnesses. Ms. defendant’s most ness, hearing only testified at the PCR Aifer met with her once, meeting approximately one hour. Aifer also in a that lasted Pincus, arranged experts, Kay, Young, medical for three hired a consultant to assist her on evaluate defendant. She retaining investigator the voir dire. Instead of an or social worker, also felt that a Aifer interviewed witnesses herself. She necessarily” any mitigation specialist garner would “not additional Aifer conceded that she did not involve her co-counsel evidence. investigation preparation. in the or witness trial, just capital In the start of another Aifer before resigned from the Aifer Public Defender’s Office. believed Jones, superior, unduly her Assistant Public Defender Dale was interfering following morning, with her case. The she submitted resignation: her letter of resignation, of all Please letter effective from of duties accept my immediately, my as an of the Office of Public Defender. After much reflection, after employee discussing I I Jones, the matter with Dale have come to the conclusion that am not being to handle the an within the Office. competent responsibilities attorney I am convinced of as corroborated Mr. my inability, Jones,
particular, our clients cases. As know, properly represent capital you may already my being in a resulted death sentence Mr. inadequate performance imposed upon jeopardize Marko It is intolerable to me that I the life of another Bey. may yet young regret Mr. David on trial in man, Monmouth I Cooper, currently County. give urgent. that I cannot more the situation is I notice, however, cannot simply continue in as a member the staff. any capacity hearing, explained At the PCR Aifer that this letter was intend- response ed as a “sarcastic” and “facetious” to internal criticism. Our review of these facts leads us to conclude that Aifer’s preparation incomplete. preparation mitigation evi- undertaking. postpone a preparation dence is substantial To until penalty-phase hearing a two months before is not commensurate Davis, consequences hearing. with the dreadful such See supra, 116 561 A.2d N.J. 1082. As Aifer’s motion for a reflects, stay she should have started earlier.
Despite
incompleteness
investigation,
of Aifer’s
we
decline to find
her conduct constitutes ineffective assistance of
errors,
specific prejudicial
counsel. Absent
general insufficiency
performance
justify vacating
counsel’s
does not
a death sen
post-conviction
tence on
relief. “The case law makes clear that
purely speculative
representation
such
deficiencies in
are insuffi
Fritz,
justify
supra,
cient to
reversal.”
Although the lack of prepare sufficient time to for trial claim, support can an ineffective-assistance-of-counsel a defendant *19 generally may support proof specific that claim with evidence post-conviction hearing, original adduced at a but not at the trial. Tate, (6th Cir.1995) v. (finding See Glenn 71 F.3d 1207 prejudice sentencing proceedings in pres where counsel failed to pertinent history capacity ent evidence of mental and mental post-sentencing hearing); at Singletary, discovered Blanco v. (11th Cir.1991) F. (holding 2d 1501-02 that defendant was prejudiced sentencing phase by at counsel’s failure to discover and present any mitigating concerning available evidence childhood, seizures, impoverished epileptic organic and brain dam Tokman, (Miss.1990) 1339, 1345 age); (affirming State v. 564 So.2d psychological lower court’s conclusion that evidence of defendant’s presented post-conviction hearing traits could have affected trial). judgment at presumption prejudice is reserved for cases involv Fritz,
ing
complete
right
supra,
denial of the
to counsel.
Here,
performance
N.J. at
2. Factors presentation that Aifer was ineffective her Defendant asserts mitigating Specifically, factor. support of evidence to the catch-all present adequate that Aifer failed to evidence of his he asserts deviance, neglect, mother’s abuse and his untreated sexual drugs. Defendant maintains that Aifer addiction to alcohol and jury clearly components also should have informed the more of the of the catch-all factor. Neglect
a.
Abuse
factor,
presented
support
To
the catch-all
defense counsel
exten-
penalty-phase
Bey’s
of Patricia
sive evidence at the 1990
retrial
neglect
Bey
told the
that she
abuse and
defendant. Ms.
during
was an alcoholic and that she had abused alcohol
her
neglecting
pregnancy with defendant. She admitted
and abus-
ing
generally
beating
many
and to
defendant on
her children
*20
affirming
we related in
defendant’s death sentence:
occasions. As
causing
down,
Ms.
testified that on one occasion she knocked defendant
Bey
Although
to hit his head on a
table and lose consciousness.
defendant
coffee
gashed,
him
defendant’s head was
she did not take
to a doctor. Ms.
also
Bey
neighbors
when her
had threatened to call the
if she
recalled another time
police
beating
did not
defendant.
stop
814.]
III,
Six other witnesses confirmed Ms. El, El, Bey’s Juliet and Clarence Horton described Patricia alco- physical holism and her abuse of defendant. Defendant’s three experts mental health communicated to the defendant’s own They Bey account of his childhood. confirmed Ms. abused all children, her but that she meted out the harshest treatment to defendant: lights She off and covered the windows and mirrors out kept apartment, get of an alcohol-induced the devil would her. Several witnesses paranoia described the state of the and cold, dark, slovenly Beys’ apartments unkempt children____ Growing condition of the defendant received severe, up, frequently beatings with broom belt handles, belts, buckles, and other
unpredictable straps items.
[Id. 814.] at 572, 610 A.2d Wendolyn El explained neighbor Bey family that a of the told Bey Once, her that Ms. “beat Marko all El the time.” when Bey apartment, Bey badly visited the Ms. had beaten so apartment that he fled from the and ran down the street. singled beatings El surmised that Ms. had out defendant for these brutal Bey because his father had her. She also ascribed defendant’s crimes to spumed anger against his mother: Marko did not kill those two “mentally killing.” it
women, was his mother that he was [Id. 814.] 610 A.2d Bey’s El also stated that Ms. alcoholism was so severe that she experienced hospitalized and blackouts on several occasions. get
Horton revealed that defendant once told him: “I need According out of him in here” and asked live with Vermont. Horton, food, water, defendant and his brothers did not have or clothing. brothers, Defendant was forced to care for his would find food for them eat. occasion, Bey El
Juliet saw Ms. hit defendant. On one El saw Bey severely Ms. beat defendant so that defendant was left shaking crying. *21 testimony, claims that counsel was defi-
Despite this neglect. demonstrating and Defendant in his mother’s abuse cient testimony that introduced the argues that Aifer should have evidentiary hearing. elicited at the PCR testified evidentiary hearing, fifteen witnesses At the PCR Bey’s neglect of defendant. Three concerning Ms. abuse and Bey, Wendolyn El and Clarence penalty-phase witnesses —Ms. again evidentiary hearing. El’s and Horton —testified at the PCR repeated penalty-phase testimo- generally Horton’s accounts their testify Horton to about Ms. ny. The PCR court did not allow mother, however, Bey’s described Bey’s childhood Alabama. greater than physical neglect of defendant detail her abuse previously. had she Bey physically explained that she abused her children
Ms. severely frequently so that he bore bruises and beat defendant specific physi- incidents of her welts. She recalled several of the during that other witnesses had described cal abuse of defendant penalty-phase trial. the 1990 that, child, Bey up when defendant was a she drank
Ms. stated quart gin per day. provide did not the children with to a She rarely their whereabouts. Defendant was forced to food and knew sum, responsibility neglected siblings. for his In she de- take living conditions as “hell.” scribed her children’s time, Bey during For the first Ms. testified that many hospitalized childhood she had been times for conditions pneumonia, alcoholism. had been treated for related her She blackouts, problem, required heart and seizures that her wear straightjacket. Bey’s testimony, presented to Ms. the defense four addition present Aifer interviewed chose not to
witnesses whom had but witnesses, Benjamin penalty-phase Bey, trial. These four Ri El, MeGloun, Jackson, Phillips Karrel and Bernadine corroborated frequent Bey’s physical Ms. account of her alcoholism and abuse of They Bey emphasized defendant. that Ms. often blamed defen- *22 things dant for he had not done and beat him more than her other witnesses, According Bey children. to these Ms. was an unfit parent keep who did not her home clean or feed her children. parent; Defendant acted as a he made sure that his substitute younger stayed brothers in school and had food and clean clothes.
Lastly, several witnesses whom Aifer did not interview before penalty-phase hearing. trial testified at the PCR These Patterson, Alston, Kim witnesses included Cora James Sullivan Evans, McGloun, El, Stewart, Theopolis Kenneth Mack Armand Veltre, Patterson, Alston, and John Kuttin. and Evans focused on relationship They with his father. stated that defen- provide any dant’s father did not him with emotional or financial support. openly disputed paternity Defendant’s father defendant. Patterson recalled that defendant’s father told her to witnesses, According let defendant “live on the street.” to the Bey angry teenager defendant was an and frustrated whom Ms. inappropri- often beat. described defendant’s Stewart Veltre body provided Kuttin testified that he ate dress and odor. only transportation League Little means to defendant’s baseball games. go home and take care of his Because defendant had to brothers, with the of the team. he could not socialize rest why hearing, explained
At the PCR Aifer she did not offer penalty-phase several of these witnesses at the trial. She did not Benjamin Bey they downplayed call or Karell McGloun because of their mother’s alcoholism and abusive behavior. extent Likewise, Henry Bey mother did not insisted that defendant’s living "withher. Aifer did not abuse alcohol while defendant present emotionally fragile Ri El El was as witness because Similarly, did not would not withstand cross-examination. Aifer prosecution would have call Jackson as a witness because defendant’s violent sexual attack of cross-examined Jackson about previously given her. Jackson had the Prosecutor’s Office Lastly, concerning attempt rape her. statement testify not locate him Macko McGloun did not because Aifer could that, immediately prior trial. stated even if he had to the Aifer available, testify him because he would not have had been she having support failed to paternity of defendant and denied denied him. effectively presented Aifer evi-
The PCR court concluded that Bey’s neglect of defendant. The court dence of Ms. abuse and that the testi- strategic Aifer’s decisions and determined endorsed cumulative. evaluation of the PCR mony elicited at PCR was Our testimony leads us to the conclusion that Aifer was likewise neglect presentation in the of evidence of abuse and ineffective factor. supported the catch-all *23 El, eliciting testimony Wendolyn in from Aifer was not deficient El, present any El Horton. Juliet did not Juliet Clarence evidentiary hearing, testimony at the PCR and Wendo- additional testimony repeated penalty-phase lyn El’s and Horton’s PCR their proffered testimony. properly The PCR court ruled that Horton’s Bey’s testimony concerning upbringing Ms. was irrelevant. however, sufficiency solitary question, of a interview We interview, Bey. Aifer concluded that Ms. with Ms. Based on Thus, testimony. Bey forthcoming would not be her Aifer Bey’s account of decided to call other witnesses to corroborate Ms. neglect of defendant. her abuse and meetings Bey may and Ms. have Additional between Aifer Bey forthcoming induced Ms. to be more about the details her Bey hearing behavior. Ms. testified at the PCR that she was provide relationship reluctant the full details of her with penalty-phase frightened. defendant at the trial because “I was I anybody want to know Marko’s mother was a drunk and an didn’t meetings may helped Bey mother.” have Ms. abusive Other Indeed, Nardone, worker, overcome her fear. Lois a social met Bey year. with Ms. more than times over the course of one ten Bey willing every- Ms. testified that she was not to tell Nardone occasions, thing talking at first. After with her on several howev- er, “it all came out.” possible Bey-
The results additional conversations with Ms. hearing are uncertain. She indicated at the PCR that she had truthfully penalty-phase testified trial and that she was fact, doing cooperate her best with the defense. she testimony hearing fully articulated her at the PCR more than at because, penalty-phase explained, trial as she “I have more ability open myself. I speak clearly now to can more now than I five, years.” spoken Bey’s have six Ms. reluctance to detail her may physical behavior have had more to with her and mental condition at the penalty-phase proceeding time than with familiarity attorneys. her lack of with defendant’s Bey fully Even if had penalty-phase Ms. testified more at the trial, testimony jury’s her would not have affected the delibera- testimony tions. largely The additional was cumulative of evi- penalty-phase Although dence revealed other witnesses. jury might weighed heavily Bey’s have more Ms. own account of conduct, testimony her much of the other witnesses’ included descriptions they of her conduct that personally. had witnessed only testimony Bey provided hearing new Ms. at the PCR hospitalizations resulting concerned her for treatment from her witnesses, Through testimony use of alcohol. of other howev- er, painfully Bey’s aware Ms. alcoholism. Benjamin failing
We also find that Aifer was deficient for to call El, and, Bey, testify. Ri Karrel McGloun Bernadine Jackson to investigation preparation disregard lack of Aifer’s leads us to *24 presumption generally of reasonableness that attaches to a concerning calling supra defense counsel’s decisions of. See example, 736A.2d at 477. For Karrell McGloun testified that only Similarly, Aifer met with him for fifteen minutes. Aifer Ri El never met with and based her evaluation of the witness on reputation. Accepting testimony hearing, mere their at the PCR presenting Aifer was deficient for not these four witnesses at the penalty-phase trial. court, however, agree
We with the PCR that this evidence was penalty-phase jury overwhelming cumulative. The heard evidence Bey, Ms. her abuse of defendant. Bey’s alcoholism and of Ms. confirmed, singled that she out defen- testimony El admitted Horton, jury knew frequent beatings. From the most dant for regularly did not have food or that defendant and brothers took care of his brothers. clothing and that defendant clean Therefore, merely have testimony would rein- the four witnesses’ testimony. penalty-phase forced the eight witnesses Similarly, Aifer should have interviewed trial, whom defendant not interview before the but whom she did testimony. testimony of providing material has identified as witnesses, however, cumulative of merely would have been those explana- example, For testimony of the other witnesses. neglect and financial of defen- Macko McGloun’s emotional tion of neglect comparison physical to that of the abuse and pales dant that the testi- from his mother. We conclude defendant suffered did not interview could not mony of the witnesses whom Aifer jury’s penalty-phase deliberations. have altered proving that Lastly, not met his burden of defendant has testify Henry Bey, did not testimony from Macko McGloun or who jury’s deliberations. hearing, at the PCR could have affected the speculation. Defendant’s claim is mere Thus, did not receive ineffective we conclude that defendant regard presentation to the of the assistance of counsel with neglect. evidence abuse
b. Sexual Deviance Untreated trial, penalty-phase defense counsel did not
At the 1990 any from an untreated present evidence that defendant suffered that counsel should have sexual deviance. Defendant contends prior inappropriate sexual behav informed the of defendant’s ior, together with the absence of treatment for that behavior. defendant, information, according helped could have ex Such thereby supported plain defendant’s later criminal conduct finding mitigating factor. of the catch-all *25 hearing, At the PCR Wendolyn Jackson and El testified about sexual conduct. Jackson described defendant’s at- tempt sexually days assault her two before he was arrested for the Peniston murder. Defendant tied her to her bed with her stockings lay screamed, on top of her. After she defendant apologized, freed her. When defendant later forgave Jackson him. thought appeared She that defendant to have been in an alcohol- induced trance at the time the incident.
El discussed three incidents in which engaged defendant inappropriate old, sexual conduct. years When defendant was ten four-year-old sixteen, he fondled his vagina. cousin’s At he at- tempted to neighbor, molest El’s a senior citizen. Defendant once genitals. tried touch his older cousin’s Defendant never re- any ceived treatment sexual disorder. No evidence of a treatment, however, disorder or failure to obtain was introduced. Aifer testified at the hearing PCR that she did not introduce relating evidence explained defendant’s sexual deviance. She that the information jury provided would have alienated the it with an give additional reason to defendant a death sentence.
The PCR court concluded that Aifer made a reasonable tactical by refusing decision prior to introduce evidence sexual miscon- duct. It testimony found that Jackson’s and El’s would have persuaded spare Bey’s inflamed the rather than it to life. We agree. fully
Aifer was potential testimony aware of Jackson’s and El’s concerning defendant’s sexual investigation conduct. Both Aifer’s strategy and trial were sufficient.
Although prior directly the evidence of sexual crimes does not factor, support statutory aggravating propensity it had eyes demonize jury. of the Acts of sexual deviance, moreover, strong do not constitute support evidence to mitigating penalty-phase the catch-all factor. No evidence during hearing trial or the PCR demonstrated that defendant’s sexual misconduct psychological was caused disorder. For *26 defendant, stopped, suggest- he shouted at example, after Jackson subsequent aggression. His to control his ing that he was able disorder, that, despite any he understood apology also indicates wrong. was that his behavior strategy to trial was argues that Aifer’s overall
Defendant explain antisocial behav- ample evidence to defendant’s introduce Thus, offering evidence of his sexual claims that ior. defendant strategy. jury was told of supplemented that The offenses have juvenile attempts to rob or record and of his defendant’s entire Finally, jury in- women. was sexually assault three other According murder. conviction for the Alston formed of his defendant, inflamed jury not have been further could sexual assault on Jackson. evidence of the however, by hearing from jury, might have been offended her, opposed assault on as of defendant’s sexual Jackson through testimony of the hearing assault as filtered of the Moreover, testimony of defendant’s expert witnesses. Jackson’s murders, attack, in time to the could have which occurred close out of control as contention that he acted undermined defendant’s conclude that Aifer was not a result of a mental condition. We failing to introduce evidence of untreated sexual ineffective for misconduct. Drug Alcohol Abuse
c. Evidence of Defendant’s factor, support mitigating the catch-all six witnesses penalty phase retrial about defendant’s abuse testified Bey, Wendolyn El and Horton ex drugs. alcohol and Ms. age alcohol since the of ten plained that defendant had abused hospitaliza El years Bey and Ms. recalled defendant’s old. Ms. being on the side of the road unconscious as tion after found drug of a and alcohol overdose. result Additionally, experts told the that defendant throughout According life. drugs alcohol and had abused nine, began drinking age alcohol at and later Young, Dr. defendant marijuana Young Dr. stated that defen- used both and cocaine. him dant told heavily he had been under the influence of drugs or during alcohol both the Alston and Peniston murders. Dr. Pincus testified that defendant constantly under the result, drugs. influence of alcohol and As a experienced substance-induced blackouts. Defendant’s drug alcohol and use also inability exacerbated his aggression. control his Kay Dr. testified that defendant’s left frontal damage lobe could have been by, factors, among caused other “pre-adolescent drug Thus, use.” drug alcohol and use could have contributed to defendant’s extreme violence. argues
Defendant that Aifer was ineffective because she failed *27 testimony to introduce from several other witnesses who would have documented drug his alcohol and abuse. At the PCR evidentiary hearing, six supported more witnesses the evidence of drug defendant’s and alcohol addiction. Jackson testified that in murders, the weeks preceding defendant’s she and defendant got often together. drunk Stewart observed defendant use alco- hol, marijuana, El, According and cocaine. to Mack defendant consistently was intoxicated a few months before the crimes. years earlier, About three Evans and Kim Alston saw defendant daily intoxicated on a basis. Kenneth MeGloun stated that he suspected that defendant abused alcohol.
The PCR court concluded that because Jackson would have described attempted rape, reasonably Aifer decided not to call Jackson. The court nonetheless determined that Aifer was failing deficient for to call the other five witnesses who would have testified about defendant’s substance abuse. testimony The witnesses, however, of those would have been cumulative of the penalty-phase Furthermore, evidence. Evans and Alston would provided have harmful evidence that defendant had been affiliated gang with a teenager. when he was a agree. We Aifer’s failure to interview Jackson and the other five witnesses cannot be attributed to a strategic reasonable decision or tactical allocation of resources. Those witnesses could have offered useful testimony concerning lifelong alcohol drug addic-
tion, jury mitigating factor. In have found was a which could witnesses, failing Aifer’s was deficient. to interview the assistance however, testimony, not have affected Their additional would substantially penalty-phase heard deliberations. abuse, including sufficient documentation of defendant’s substance in which was on the side the incident defendant unconscious Although supported road. witnesses would have defen- PCR drugs shortly use of before the Peniston dant’s alcohol murder, essentially evidence of defendant’s addictions was uncon- penalty-phase testified that troverted. Defendant’s witnesses sub- plagued throughout expert him his witness stance abuse life. One stated that told him that had been intoxicated even defendant he present the time of the murder. did not Peniston The State any suggesting his evidence had overcome addic- might during teenage years. Aifer tions Evidence that have Therefore, developed presen- would cumulative. Aifer’s have been tation on this issue not ineffective. Mitigating
d. Failure
Enumerate Catch-All
Factors
also
argues
Defendant
that Aifer
was ineffective because
penalty-phase
in her
she did
enumerate
summation each
III,
potential
mitigating
Bey
catch-all
factor.
we determined
mitigating
trial
that the
court’s instructions on
catch-all
factor
inadequate
they
were
could not
them to the
because
relate
evi
*28
however,
error,
at
dence. 129 N.J.
3. Present Miti- gating Factors additionally argues presented
Defendant that Aifer should have support “nonstatutory” mitigating evidence to four factors that jury she believed the should find: defendant’s intoxication during murder; the commission of lack of treatment defendant remorse; problems; received his various and the availability of a as an to a life sentence alternative death sentence. factors, Two these defendant’s intoxication at the time of the abuse, overlap and his argument offense untreated substance his history drug supports that of alcohol and addiction the catch- factor, 264-66, supra see A all 736 .2d at 485-86. Defendant’s proposed “nonstatutory” factors are better articulated as addition- al factors from found which the could have the catch-all brief, however, Following factor. the structure of defendant’s we separately. shall address these four factors During a. Intoxication Crime
Defendant claims Aifer was ineffective because she evidentiary provide support did for the contention that defen night dant’s intoxication on the was a mitigating the murder statements, opening closing factor. her Aifer referred to night mitigating defendant’s intoxication as a factor. She supporting through introduced three evidence mental health experts, who testified that defendant told them that he was during intoxicated the commission of the crime. guilt-phase
Aifer chose not to introduce defendant’s 1984 testi- mony large marijua- that he had alcohol and consumed amounts of night na on the murder. She not use also did relevant investigator George *29 During by an cross-examination. undermined effective been trial, at the 1984 the State had demonstrated cross-examination his despite of the recalled several details events could defen- alleged Because no one corroborate intoxication. credibility to sub- testimony, defendant’s own was crucial dant’s stantiating argument. this through evi- strategic experts decision to introduce
Aifer’s After intoxication was at least reasonable. dence defendant’s rejected testimony, jury intoxication hearing the 1984 guilt mitigating and as factor. Defendant had as a defense to effectively during this issue trial. on been cross-examined credibility story by integrat- experts, The who lent to defendant’s ing testimony, conveyed into the same without it their information to discredit claim. permitting the State b. Treat Substance Abuse Failure to Defendant’s consider argued summation that should
Aifer drug failure and as a to treat defendant’s alcohol abuse mitigating Defendant contends that was ineffec factor. now Aifer any specific support tive she did not introduce evidence to because Specifically, Aifer mitigating this factor. defendant claims that indicating that defen should have introduced various documents drug problem. dant had authorities about alcohol and told documents, however, penal would have been cumulative. At the retrial, Bey ty-phase Ms. testified that the she knew about defen help drugs, dant’s addiction to alcohol but did not seek explained previously, testimony supported him. As substantial drug defendant’s claim of alcohol abuse. the State Neither any any suggested type nor that defendant had witness received treatment for his addiction. The record does not establish that representation Aifer’s of defendant on this issue was ineffective. c. Evidence Remorse argues
Defendant also that Aifer was because she did ineffective any overlaps introduce evidence his remorse. This issue *30 defendant’s contention that the trial court and his counsel de- prived right him of of allocution. Because this issue is best analyzed right within the framework of the of allocu- common-law tion, IIIB, 275-83, we will it in discuss section 736 A.2d at infra 491-96.
d.
Sentence
Life
statements,
opening
closing
her
and
Aifer
to
asked
seventy years
parole ineligibility
consider defendant’s
of
as a
mitigating
argues
argument
factor. Defendant
that Aifer’s
actually
subject
eighty-
deficient
he
have
to an
because
would
been
year period
ineligibility.
one-and-one-half
parole
of
accurate,
Regardless
period
of which
of time is
Aifer’s
Any
assistance was
error
not ineffective.
is irrelevant because a
parole ineligibility
mitigating
a
cannot be
factor.
(1997).
326, 404-05,
Cooper,
v.
State
151 N.J.
III. Attorney’s Assistance Counsel Denied Ineffective Defendant Right Right Testify
His to Allocution Right Testify A. to in testify
Defendant did not 1990 at the retrial of the phase. argues deprived right He Aifer him his to penalty testify by unilaterally deciding that he should not do so. Accord voluntarily ing knowingly to the defendant State waived his right testify. to right
Criminal defendants have a constitutional
to tes
594, 626-28,
tify
Savage,
on their own behalf. State v.
120 N.J.
(1990).
testify
The were real. At Peniston trial the effectively Consequently, prosecutor cross-examined defendant. convincing it would more to Aifer advised defendant be sought testify through expert present the facts about which he to witnesses. from hear-
Defendant’s recollection differs Aifer’s. At PCR ing, he had told that he wanted to defendant stated that Aifer defendant, hearing. testify penalty-phase According at the to Instead, testify. suggested him that Aifer told he should not she videotaped a means undergo hypnosis that defendant as testimony subjecting without himself to presenting cross- Although that he could not be examination. defendant believed agreed. hypnotized, attempt hypnosis he failed. Defen- testify. disagreed dant and Aifer whether defendant should Al- promised him a though Bey Aifer to discuss issue with on later date, result, they he never As a defendant claims that was did. right testify. unaware of his to usurped court that Aifer defen-
The PCR concluded had not right testify. to The court that defendant dant’s determined right original aware of that a result of his murder trials 1983 as
271 court, According and 1984. to the not defendant chose to exercise Instead, right in 1990. he this concurred with counsel’s decision him from to shield cross-examination. foregoing,
Prom the Aifer we conclude that did not inform properly testify to defendant that the decision whether was his. Instead, sufficiently Nor did she consult with defendant. Aifer testify on her own decided that defendant should at the penalty-phase retrial. question deficiency
The next
is
preju
whether counsel’s
argues
defendant.
forego
diced
Defendant
that we should
this
analysis
right
testify.
because of the fundamental
to
nature of
posits
impact
that the
of a
He
defendant’s own words on a
is
finding
to
speculative
support
too
of harmless error. Conse
quently,
urges
adoption
per
defendant
of a
se rule that the
right
testify
presumptively prejudicial.
denial
is
Alterna
tively,
requests
require
prove
that we
State to
right
testify
beyond
of the
the denial
was harmless
a reasonable
18, 24,
Chapman
California,
See
v.
doubt.
U.S.
S.Ct
(1967)
that,
(holding
17 L.Ed.2d
order
conclude that
harmless,
is
federal constitutional error
court must find that error
doubt”).
beyond
“harmless
a reasonable
Previously,
involving
have evaluated
we
claims
testify
of a
denial
under the Strickland/Fritz
*32
631,
Savage, supra,
test.
N.J. at
1996) analyzing right testify to claim of (holding denial of as approach). Counsel’s ineffective assistance of counsel is soundest likely right testify to of to is not “so failure inform defendant his in a prejudice litigating cost of effect [its] to the accused Cronic, unjustified.” v. particular case is United States U.S. 658, 104 2039, 2046, L.Ed.2d at 667. S.Ct. Bey Even if had that the ultimate decision to Aifer informed make, testify testimony his was his to would not have affected brief, substantially penalty-phase deliberations. showing required by prejudice has not satisfied the of the second of prong test. Strickland/Fritz testify right experience aware of to Defendant was his from his previous During original in his two murder Alston trial trials. attorney, Gearty, in informed the court William right that he to to had advised defendant of his choose whether testify: rights
Your in I with the as honor, matter, this have discussed defendant his guaranteed of I the Constitution the United States and the Fifth Amendment. by proceeding guilt have him at this on the issue of he advised at his option, may chose not to in own defense. testify I’ve that to him. I’m convinced that he it. I am convinced understands explained knowingly intelligently also after our discussion the matter he has and right waived that on his and has to own behalf indeed elected not testify testify guilt in trial. this, the of the phase defendant, a colloquy After with the court that it was concluded doing.” “convinced defendant understands the nature what he is trial, later, year in One Peniston defendant asserted his right testify. court to choose whether Defendant asked the Gearty advising testify. remove as his counsel for him to effect, defendant, according relinquish- would have been the privilege against ment of defendant’s self-incrimination. Your I to ask this Honor, wish Court to have my present counsel, Attorney Gearfy, trial____ representing removed from this me this position penalty phase my defending jeopardized I state that than me, rather defense Attorney Gearty my argument against against life his lack of my prosecution’s presentations leading me and I that his me further state advice to me at his direction to place unrealizing gave where from self- myself evidence, to refrain up my *33 against incrimination and in his direction upon testified in that capsule, myself direction and that direction and advice from counsel to self-ineriminate is the defense opposite any attorney’s duty. request Defendant’s Gearty attorney the court remove as his understanding demonstrates his right that he had the to decide Defendant, however, testify. whether to argues that his state- ment illustrates his right failure understand that the to make defendant, According decision was his. the statement highlights defendant’s belief that he compelled to follow advice, counsel’s if disagreed. Finally, even defendant states that his familiarity only remarks indicate his right with the silent, to remain but not with corresponding right testify. disagree. We
First, defendant’s statement 1984 confirms attorney, that his Gearty, merely advised, compelled, rather than defendant to testi- fy. If defendant had not known Gearty’s that he could override advice, requested he Gearty would have the court to remove as Second, statement, his counsel. although it reflects silent, defendant, his intention to supports finding remain advice, attorney’s accordance with his original had made the Thus, testify. decision to as far back as defendant knew right testify both of his and of the right correlative to remain silent.
Defendant’s assertion of his to remain silent in 1984 confirms the testify conclusion that defendant did not want to at penalty-phase the 1990 retrial. defendant realized that testimony, particularly part cross-examination, elicited on damaged matter, present had his case. In the defense counsel so reaching Thus, advised defendant after the same conclusion. penalty-phase hearing, the 1990 Aifer testify- told defendant that ing very risky thing co-counsel, would be “a to do.” Aifer’s McCauley, agreed that defendant would not an be effective wit- “halting speech” inability ness because of and his to withstand cross-examination. Defendant’s testimony disastrous in the Peni- years ston trial six testifying earlier and his aversion to in the present matter undermine the appeal unsubstantiated assertion on
274 testify in penalty-phase hearing to at the
that defendant wanted 1990.
Defendant, however, already experiencing asserts that after in he have been “sharp” cross-examination would better prepared to cross-examination in 1990. He contends withstand established, penalty the first guilt that because “his had been and something of death ... had trial had resulted in a verdict to be unpersua- are done to avert same outcome.” These assertions stand, testimony If would sive. defendant had taken his have night his focused on claim that on the murder he intoxicat- subject precise ed'—-the of defendant’s cross-examination at the moreover, State, trial. The could have cross-examined defen- testimony hearing on the basis at that trial. After dant of his testimony in had convicted defendant outcome, him To and sentenced to death. avert the same trial understandably strategy counsel would have considered a that did subjecting withering not involve defendant to cross-examination. Lastly, request in of Gearty 1984 for the removal as attorney willingness disagree his with his demonstrates to counsel open present proceeding, in court. In the defendant had the opportunity testify during colloquy to communicate his desire to .a court, counsel, among the and defense defendant: Might I to as to or not the Defendant inquire now, Court: whether wants you right me to his to remain to —wants instruct about constitutional silent? Jury No. Aifer:
Court: Does not?
Aifer: No. it
Court: Discussed with him?
Aifer: I will. charge. Then as to whether Okay. you
Court: advise me he wants the Okay? charge charge [where] Aifer: The I to the assume is likened cases Defendant doesn’t testify? Court: Yes. charge right given indicating is
Aifer: that he has to remain silent? He is that he does want it. charge? You him Court: discussed it with and do understand the you Defendant: Yes. charge given jury?
Court: And don’t want that to the Okay. you Defendant: No. No. proceeding, requested discharge
In the 1984 when he of his objection attorney, registered having defendant his testified. object suggests acquiescence His failure to Aifer’s testify. statement that he would not right testify conclude that defendant was aware of his
We right penalty-phase decided not to exercise this at the trial. sum, knowingly voluntarily waived his *35 Therefore, testify. ineffective assistance of counsel claim must fail. Right
B. Allocution penalty- Defendant did not read a statement of allocution to the jury. phase attorney He now claims that the trial court and his him deprived right of the of allocution.
A capital
right
present
defendant has a common-law
penalty-phase jury.
a statement of allocution to the
Ibid. State v.
(1988)
Zola,
384, 429-30,
112
(quoting
N.J.
“During
permitted
a defendant
a
is
to make
brief statement in
to allow the
or
order
ascertain that he
capable
feeling
expressing
she is an
individual
remorse and
demonstrating
hope
some measure of
for the future.” State v.
(1996)
I).
295, 361,
Loftin,
(Loftin
146 N.J.
A.2d 1022. the defendant makes an may offending portions, the court allow the strike State cross-examination of the defendant. respond, permit or limited Ibid. colloquy engage in a trial court must defendant Bench Manual right of his of allocution.
apprise defendant
for
Here, however,
Q.
did not
Appendix
Capital Causes
appeal.
on
For the
right of allocution at trial or
direct
assert his
time,
by failing to
argues
trial court erred
he now
that the
first
right of allocution.
inform of his
failure to afford defendant
challenge
A
to the trial court’s
of allocution must be raised
opportunity
an
to make a statement
Cerce,
387, 396,
Any
prior
(a)
ground
proceeding
relief not
... unless the court
...
finds
that the
proceeding;
have been raised
any prior
asserted could
reasonably
previously
(c)
(b)
injustice;
would result in fundamental
or
or
that enforcement of
bar
or
to the
of the United States
denial of relief would be
Constitution
contrary
State of New Jersey.
in this case.
exceptions applies
None of the three
appeal.
of allocution on direct
Defendant did not raise his
reasons,
challenge
post-
on
following
that failure bars his
For the
*36
First,
right
conviction relief.
the denial of the
of allocution
Defendant, therefore, reasonably could
apparent from the record.
Second,
objection
appeal.
the denial of
have raised this
on direct
injustice.
in
right
the
of allocution does not result
fundamental
Although
permitting
civilization commends”
a defendant to
“our
Zola,
mercy,
supra, 112
express
plea
his remorse and make a
to
expression
at
548 A.2d
such an
is not essential
N.J.
leading
just
“provide[
proceedings
the defendant with fair
to
]
(1992).
Mitchell,
565, 587,
outcome,”
v.
Defendant next that Aifer’s assistance was ineffective Instead, right she did not inform him of his of allocution. because unilaterally alloeutory not to Aifer decided use an statement defendant had drafted. dissent,
Contrary to the we do not review the denial of the right of allocution in a vacuum. “The claims of ineffective assis penalty phase fairly only tance of counsel in the can be assessed grave of trial of the of the context the entire record and offenses III, supra, which defendant was convicted.” Marshall 148 N.J. 252, 690A.2d 1.
The PCR court concluded that the decision whether a defendant strategy should make statement of allocution is a matter of trial hearing, At the Aifer best left counsel. PCR testified that she proposed portions statement had used defendant’s because subject it were inadmissible and would cross-exami- statement, nation. In the defendant denied that he had commit- knowing attempted purposeful ted or murder and to rebut testimony experts. that the the mental health Aifer concluded summation, jury might statement more- find the insincere. On over, prosecutor sincerity any such could have attacked Consequently, statement. the PCR court held Aifer had strategic made a reasonable decision for defendant not to make a in allocution. statement allocution,
Fundamentally,
right
right
like the
testify,
personal right
is a
that defendants themselves decide
Accordingly,
court should address
whether to exercise.
the trial
defendant,
counsel, concerning
right
of allocu
rather than
independent strategic
an
tion. Defense counsel should not make
Instead,
right.
decision whether defendant should exercise
testify,
with
as with the
defense counsel should consult
can
informed decisions.
their clients so the clients
make their own
*37
It follows that defense counsel should inform the defendant of
right
apprises
of allocution or ensure that the trial court
Moreover,
right.
right
testify,
defendant of this
as with the
to
counsel must advise the defendant on the issue whether to submit
a statement of allocution to the
advantages
disadvantages
doing
doing
and to
the tactical
or
of
so or not
so.
explain
advising
Counsel’s
includes
a defendant of the benefits
inherent
responsibility
exercising
right
waiving
and the
inherent
it....
Indeed,
consequences
give
counsel’s failure to do so will
rise to a claim of ineffectiveness of counsel.
[Savage,
(discussing right
testily).]
Here, requested Aifer should have the trial court engage colloquy concerning right defendant in a sufficient Instead, defendant, consulting allocution. simply after with she penultimate day asked him on the of the trial to “write out if I say something jury, say.” could I Although what would statement, purpose Aifer informed of this she did explain the limits of such a statement or that it would not necessarily subject him to cross-examination. Once defendant statement, completed “glanced rejected Aifer at” and it. Rath discussing advantages allocution, er than disadvantages unilaterally facts, she decided not to use his statement. On these we conclude that performance counsel’s was deficient. question
We therefore turn to the
whether counsel’s
deficiency prejudiced
again,
defendant. Once
we resist defen
suggestion
presume prejudice.
dant’s
that we
The evaluation of a
claim that
duty
defense counsel did not fulfill the
to inform a
right
defendant of the
of allocution is like the evaluation of other
claims, including
involving
ineffective-assistance-of-eounsel
those
252-56,
testify.
supra
See
Morning I know that want may of the Jury you Ladies and Gentleman the Various As know from be by you. you Life should spared me on why my good explaining proceeding vocally. I’m not at myself in this Doctors that testified I writing this matter. do to and to on you am this letter you speak So instead I but I’m Judge or let this be read to you allow to read this if Amone will you know trusting that he will. I can no excuse that in this matter there is that have me before you The crime’s know some of give is to let one, you not to be taken as this only and what I write is feeling’s. my live and I will old, old and am now 25 yr’s this I was 18 crime, yr’s At the time of knowing I cannot tell you why LIFE this. for the rest of my with this pain night I in this court room. say nor can else murdered that anyone someone was But over this to myself. not been able to answer question this because I have night tho thought that and even a murder took I have about why place these 7 yr’s not ever I not and would I do know that could it, still understood I have not I know for sure. reason. That life for away any take someone’s intentionally true. I think that is not When I show emotion’s but any that don’t People say forgiveness Peniston from the Alston and I and ask what do cry about happened night But how think about what happened. am in cell at or Families when I my night I for forgiveness I cry or let them know that when cry them for can I ask thing’s I these and meant when it, say them that I am sorry them also. I have told anything I they mean it or when don’t say that I don’t tho, to them someone say’s have who make these statement but the I have remorse any people don’t say feeling. had crime took I I am Before this place, me to see what not sat down with and within long lot, I have cried a now in these time, yr’s for a but not cried wrong knowing for and that what happened sorrow is I know my myself again that I am sorry. to them Peniston Family, say to You. You for this chance speak Thank Ladies and Gentleman para- in the third Specifically, problematic. is The statement knowing or he had committed disputes that graph, defendant contradicts the That assertion Peniston. murder of purposeful had counsel Even if defense finding guilt phase. jury’s mercy, plead for and to that denial to eliminate advised defendant had a not have plea would the record demonstrates jury’s deliberations. to affect the propensity substantial similarly about defendant testified original trial In his oath, under murder. While a result of the he felt as the remorse jury that: told the 1984 putting sitting apologize you over there apologize to anybody I I family. drugs thirteen, I was since I have been taken And all into this predicament. drugs of life. was my way where the And it came to the point old. fourteen years drugs It was a A need. And if I never would have taken the necessity. maybe it never would have happened. drugs forget. But it did. And it came around to the situation where I needed things You know. Personal like that. And from when I problems was thirteen just drugs or fourteen I have taken about kind of there was. every Heroin and depending drugs acid. And I started on the from all different of reasons. types got And it out of hand and to the where I couldn’t control it no more. point got drugs. And I like told the Peniston I never would have involved in I family, know for certain —that that would never I would never have been in the happen. where this would have it predicament did And happened. Unfortunately, happen. I’m know. really you— trying. *39 I can’t to how I am. I’m really express you And since the Peniston sorry has been in the courtroom family from when I told day one, them few minutes ago I was that was the first time I could sorry, look at tell him I’m actually them, And now I can sorry. to to only try how I am. explain you sorry putting And I don’t want to be to death. And I’m put mother and sorry my my through brothel's and aunt, whole my my this family the Peniston predicament, jury. and else on the family everybody Despite plea, jury this the sentenced defendant to death. jury, receiving albeit after erroneous instructions on the unanimity need for concerning mitigating factors, the found no testified, such factors. As Aifer defendant’s counsel in 1984 jury persuaded believed that the was by expres- defendant’s sion of Nothing remorse. indicates that a statement of remorse substantially would have jury’s affected the deliberations in 1990. represented Aifer also defendant in the Alston murder trial. As counsel, defendant’s positioned she was best to determine how defendant’s jury. allocution would affect the At hearing, the PCR Aifer testified that she believed that the allocution would not have swayed jury: the just evaluating [R]emember that it’s not the statement in the abstract. It’s evaluating jury, jury watching its on during the on the impact that I’d been the jury on a
trial, had heard evidence to them presented over the course of several I light And had to evaluate the days. of this persuasiveness statement in [the all that. And it decision not to use the statement] was the ultimately conclusion that I came to. Additionally, expressed Aifer any reluctance to use of defendant’s statements of any remorse because such statement would have allowed the State to expression “ridicule the being remorse as something that was being punished done to avoid for his crime”: in as much as I Mr. Bey I that as wanted to felt, present quite honestly, light I as didn’t think and human—and humanized possible, sincere basically going standing reading to them was to accomplish and statement his prepared jurors, angered or of the not intentional- have offended some that and may possibly just thought anything because they I he would but say improper, not because ly, might not of it. accept sincerity co-eounsel, McCauley, testified that hearing, PCR Aifer’s At the remorse, “deep sympathy for the expressed defendant’s statement living to endure these of the and a hell he has with families victims trial, however, at the he thoughts.” He time of the admitted allocution, having an even without dismissed effectiveness read the statement. thinking thought the that it that I effective, at the time not would be I recall going just having hearing do me, “what well, you was question posed saying being getting I’m strike me as effective of him it didn’t sorry,” think up jury.
before evidence strategy Aifer’s trial introduce subjecting prosecu- criticism without remorse statement, she Although not utilize own Aifer did tor. through two mental introduced evidence of defendant’s remorse experts. health trial Young penalty-phase the 1990 about
Dr. testified at meeting with defendant: crying it about what him told me what was like to read *40 paper I saw while he and hands and Ms. And he he lowered his his eyes Peniston. stopped, happened length go and as he for before he could on and explain explained, he some paused reading hit him. He reached in the of the that the reality really that it was paper rubbing his were and I could when he hands wiped they and was his see eyes up talking with him about he was this recollection. I was
wet. That moved by things talking what of that with him about sort, of death or I penalty potential trying get own time after crime and his a few or short this days happened out of that. and that was what came emotional reaction spontaneous at the his with defendant Pincus described contact Dr. also hearing: penalty-phase designed And one of to determine if a is depressed. I asked him person questions guilty?” feel things who are I feel often asked, depressed “Do you Very people said he guilty. and no. And he well, He took that literally said, yes question And he became —his eyes two who are dead. because there are felt, people yes, “I said, that. And on the other he said, hand, with tears he said he
welled when thing. like He said such a It doesn’t sound me.” see how I could have done don’t give if went on to “If anybody were to say, me freedom and lots anybody my —he killing in return for money I wouldn’t be able to somebody, do it.” He said it so that I believed him. sincerely Theoretically, a personal may defendant’s statement have a stronger impact Here, juror. however, on a the statement of remorse, expert witnesses, as related may have been more effective.
In addition to expert testimony, jury Aifer told the in her penalty-phase summation that “of guilty course [defendant] feels [the about guilty murder]. He is of it. We know that. That’s not I know an responsible issue and he’s for it.” She stated that defendant is frustrated that he can’t recall the events and does not why know it happened. “This is not may someone who as I have my said opening gloried on killing enjoyed his or shedding proud blood or is of his work or justified feels that he was or anything like that.”
Lastly, whether defendant would allocution, have delivered the properly advised, even if pure speculation. Indeed, is the avail- suggests able evidence that defendant would not have submitted the statement. In presence, the trial court asked defense counsel whether defendant chose to make a statement to jury:
Court: Ms. Aifer, based on the case of State v. Zola and reaffirmed in State v. Clausell (1990)], N.J. neglected [, 298, A.2d 221 I inquire you client if he your chose to make a statement, unsworn statement to the Jury? Aifer: sir. No,
Although refusal, defendant heard attorney’s his object. he did not
Defendant’s silence contrasts with his actions in when he expressed to his request defense counsel a to apologize personally plead mercy. and to repeat defendant did not this Aifer, request to even after she told him she did not intend to use proposed his statement. proceeds
The dissent on assumption that defendant would have read a statement allocution to the if Aifer had informed him of post do so. See 736 A.2d at
283 record, however, suggests the likelihood that defendant 508. such a statement. had no desire read itself, us, statement which contends that the Before defendant allocution, to make a statement defendant’s desire indicates allow the the court would that defendant “trusted” that reflects however, testimony, In his PCR jury to read the statement. anything” particular hoping he “wasn’t defendant testified happen with the statement. would ineffec- concluding demonstrated Aifer’s
In
that defendant
deliberation,
substantially
jury’s
affected the
tive assistance
statement
on
characterization of defendant’s
relies
its own
dissent
feelings
remorse.”
powerful expression of defendant’s
as “a
one
was similar to
at
IV. Preparation Motion Counsel in Assistance Ineffective (1988), Gerald, A.2d we 549 792 State v. N.J. serious with the intent cause that a murder committed held kill, death-eligible. injury, as to the is bodily opposed intent Const, ¶I, (overruling Gerald art. But see Amendment to N.J. our guilt-phase was conducted before holding). trial Defendant’s that he appeal, argued holding in On direct Gerald. provided guilt phase trial facts receive new because should merely he to cause serious basis to intended rational believe III, Bey supra, rejected argument. bodily harm. We 610A.2d 814. N.J. are before
Capital
convictions rendered
Gerald
murder
“rationally could have convicted”
only
if the
reversible
*42
causing
bodily injury resulting
defendant of
serious
in death.
Gerald,
III,
supra,
Bey
When a defendant means of various violence the same we employs victim, causing need not which focus on method succeeded in death. actually Rather, we find that a actions, defendant’s taken as were brutal whole, so that he wantonly could have to or death, intended cause knew that death was only certain practically strangulation to Overall, occur. we find that the victim defendant’s of and the degree of force the victim’s head and chest applied make it “inconceivable simply that defendant was not Mil [victim].” certain’ his action would the ‘practically III, 814.] 129 N.J. at [Bey A.2d supra, that, light Defendant now contends holding, of the Gerald co-counsel, McCauley, his was ineffective in preparing motion for guilt-phase motion, a new drafting trial. When McCauley the testimony relied on the medical autopsy examiner’s report and during introduced of guilt-phase original trial. He did not autopsy report review the photographs. or crime-scene Nor did independent he retain an pathologist to the photographs. examine hearing, At testimony the PCR the defense introduced from a pathologist, Dr. Karl Dr. Schwarz. Schwarz testified that blunt trauma to the heart and head capable ligature were as as strangulation having caused Peniston’s death. Defendant rea- testimony sons supports that Dr. Schwarz’s theory strangle he did not necessary the victim for the time to kill Instead, her. defendant asserts that suddenly Peniston died and unexpectedly from the According head and chest trauma. defendant, theory provides this a rational convicting basis for him serious-bodily-injury murder. court, relying
The PCR Bey on our decision in III that defen- dant’s strangulation and other violent acts demonstrated that knowingly defendant purposefully Peniston, or murdered Ms. re- jected reject defendant’s claim. likewise We the claim. McCauley
Even if sought opinion should have second from a pathologist, testimony such not would have affected outcome of appeal, held, Gerald motion a new trial. On direct we death, actions regardless of the actual cause stated, As we he formed intent kill. demonstrated that had behind, he only from also strangled the victim “defendant enough plate her dental cause her face hard break smashed enough her with hemorrhaging, stomped and he on chest cerebral ribs, his sneaker damage her her heart inscribe force to crush III, supra, 610 A .2d814. Bey on chest.” 129 N.J. sole her finding to our force exerted was central degree *43 injuries to acted the intent to kill. Traumatic that defendant with may head, strangulation, have opposed as to the victim’s heart and fact, however, does actual cause of death. That been the “the intended negate conclusion that evidence defendant our practically certain to occur or that death was to cause death knew possessed a possibility as to exclude the that he compelling is so 581, 610 814. Defen- state of mind.” Id. at A.2d culpable less if been even for a new trial would have denied dant’s motion action in pathologist or taken other McCauley had consulted Thus, prejudice no to defen- the we find preparation of motion. dant.
V. Capacity Newly Diminished Discovered Evidence of Defendant’s of the deficien- that the cumulative effect Finally, we conclude deprive him of fair trial counsel did not cies of the defendant’s trial. testimony presented at expert that the
Defendant claims personality organic that he from penalty-phase the retrial suffers of his diminished syndrome newly discovered evidence constitutes this the He contends capacity at the time of murder. guilt-phase with a provided have the 1984 evidence could finding he with intent cause acted an rational basis bodily than intent to kill. Defendant injury rather an serious death-eligible murder urges the to vacate his therefore Court guilt-phase trial. case for a new and remand the conviction issue, reaching merits of Before this we first address the objection issue procedurally State’s that the is barred under Rule 3:22-4 because could have raised this claim on direct appeal. Rule provides exception 3:22-4 an where “denial relief contrary would be to the Constitution of the United or States Jersey.” State of New found,
As the PCR court
defendant’s claim falls within that
newly
If
exception.
discovered evidence demonstrates that
kill,
defendant could not have formed
intent to
then defen
death-eligible
dant’s conviction for
murder would
vacated in
be
with
accordance
the State constitution as it existed at the time of
Gerald,
supra,
the murder. See
N.J. at
At the penalty-phase proceeding, three experts testified organic that defendant from personality suffers syndrome damage. caused brain This disorder interferes with ability responses aggressive impulses. control emotional condition, according Young, Dr. causes forget defendant to his actions because mind recording way “his is not normally it day day experience, during does in the time when the murder is *44 actually happening.” Young Dr. did not believe that “at the time place that the murders took command [defendant] was in of his ability appreciate wrongfulness to the of necessarily murder or even to know that happen process murder was about to or in the of happening.” likely He surmised that defendant most lost the ability any to formulate intent after he committed the sexual assault, but committing before According the murder. to Dr. Young, probably already defendant had lost control his of actions began when to strangle he beat and victim. the Dr. Pincus testified that defendant is “a damaged, little brain ... and has a you little bit of more than trouble or I would have controlling impulses.” had in He concluded that defendant of was “out control” he when committed murder. as “mild” and ex- Kay dysfunction defendant’s
Dr. described schizophrenia of symptoms not that does exhibit plained defendant impaired psychotic disorder that would have any other severe or Kay stated three ability Additionally, Dr. that to reason. his any on did not show structural performed tests defendant medical in defendant’s brain. abnormalities only a new if
Newly
evidence warrants
trial
discovered
(1)
merely
to the
and not
cumulative
evidence is material
issue
(2)
contradictory;
since the trial
impeaching or
discovered
or
beforehand;
(3) of
diligence
reasonable
not discoverable
jury’s
change the
verdict if a new
probably
sort that
would
300, 314,
Carter,
granted.
v.
Defendant maintains (1993), after Galloway, both decided 133 N.J. A.2d 735 trial, relevance defendant’s guilt-phase establish the defendant’s state personality disorder to re-evaluation defendant’s organic defendant, provided him with According mind. to Gerald that, result of diminished develop evidence as a reason ability only the intent cause serious capacity, he form had harm, Galloway, kill. bodily not the intent but deficiencies, including contends, all mental disorders held that control, support a diminished- a loss emotional can cause capacity defense. trial, Motley, psychiatrist, Dr. John P. guilt-phase
Before defendant, although Motley Dr. found that examined defendant. insane, disorder. De- personality from an antisocial not suffered Galloway, fendant, however, defense counsel maintains that before Motley whether defendant’s ask Dr. to consider had no reason to requisite intent. forming him precluded from mental disease counsel, through the argument import of is have diligence, discovered of reasonable could exercise ability to impaired his organic personality syndrome *45 kill. form the intent to subsequent developments PCR that court determined the
in the law it that made reasonable evidence that defendant suf- syndrome organic personality from fered was not adduced before court, however, guilt-phase the trial. The found that evidence the by provided expert proba- the three witnesses was cumulative and bly changed not guilt-phase would have the outcome of the trial. Gerald, understandably present before counsel did not supporting the evidence distinction the between intent cause bodily Therefore, serious harm and the intent to kill. we consider evidence, newly whether the providing discovered a rational convicting murder, basis for of serious-bodily-injury probably changed jury’s would have verdict. expert testimony
Our of the review leads us to conclude that new evidence defendant’s mental does disorder not provide such a in light basis. Viewed most favorable to defendant, testimony support a does distinction between ability bodily defendant’s to form injury the intent to cause serious ability Kay and his to form the intent kill. Dr. and Dr. Pincus personality did not connect defendant’s disorder to a loss of cognitive function. Mental conditions that cause loss of control satisfy may diminished-capacity only if defense “the record experts that psychological shows field believe that kind deficiency faculties, person’s cognitive of mental can affect the record deficiency contains evidence that the claimed did affect cognitive capacity defendant’s to form the mental state neces sary Galloway, for the commission of supra, the crime.” 133 N.J. Here, contrast, Kay A.2d 735. Dr. testified that Likewise, ability defendant’s to reason was not affected. Dr. merely Pincus described impairment as a loss of control.
Although Young Dr. testified defendant’s mental disorder murder, ability affected his to form Young an intent to Dr. also cognitive noted defendant lost over capacity control his after assault, began the sexual but strangle before he to beat and anything, If capacity victim. pre- diminished would
289 injuries on any to inflict violent finding a that he intended elude finding not a that he testimony support does Ms. Peniston. The cause with the intent serious strangled his victim beat bodily opposed to death. ham as testimony expert the would not claim that
Defendant does
any
to fom
finding
was unable
support
jury
that defendant
Galloway
we
not detemine whether
Consequently,
need
intent.
of
would excuse defense counsel’s
novel rule
law that
articulated a
personality disorder.
present
failure to
evidence of defendant’s
claim,
Nevertheless,
raise
he could not
if
did
this
even
defendant
probably would have
satisfy the
that the evidence
requirement
Carter, supra, 85
N.J.
changed
guilt-phase jury’s verdict.
the
testimony from
hearing
After
the
defendant’s
VI. Concerning Adequacy Instruction Defendant’s Parole-Ineligibility Period Jury’s A. Verdict challenged court’s refusal the trial appeal, direct defendant
On that, jury if defendant was penalty-phase instruct death, life to two sentences he would be sentenced sentenced to period, ineligibility for both seventy-year parole aggregate an with jury charged the The court and Alston murders. the Peniston sentence for alternative only respect with parole ineligi- murder, thirty-year a life sentence with Peniston jury to instruct the court’s failure bility period. found that the We III, supra, N.J. at 610 Bey error. constituted hamless stated, thorough review of the on our “based A.2d 814. As we record, fully infomed of we conclude case.” a life this imposing sentence consequences practical 604, To support Id. at A.2d 814. conclusion relied on we by during statements made the court and counsel the voir dire prosecutor both counsel and summa- defense their Ibid. tions. below, proceeding prove PCR sought
At the argued was not error harmless. Defendant that consideration seventy-year parole ineligibility period would have led *47 jurors punish- some to that a life was believe sentence sufficient The request ment. PCR court denied defendant’s an eviden- for (1) tiary hearing urges on this issue. Defendant that: he should permitted evidentiary be an to hearing develop of evidence the (2) prejudice; ruling appeal this Court’s on direct in violation is Supreme holding the United States Court’s in v. Simmons South Carolina, (1994); 512 114 129 U.S. S.Ct. L.Ed.2d 133 (3) and this Court failed to on appeal address direct all of the grounds for reversal that defendant raised. had
First, objects defendant to PCR the court’s denial of his request evidentiary to hold an hearing. request This focused on resolving alleged ambiguity jury’s the of the verdict. We de Bey the scribed relevant facts III: jury two hours into their the deliberations, sent the trial court a Approximately following eligible note with the “Is ever Mr. in the next question: Bey parole years?” Some time before court met to seventy elapsed the with counsel discuss jury’s the one hour the question---- Nearly after note had been the sent, court announcing “[t]he officer that discussion interrupted [sic] Foremen in- me he formed has a verdict and don’t an need answer to the they When question.” jury brought engaged following was the into the court courtroom, the trial in the colloquy: THE COURT: And before I answered the Court that your you advised question, had a verdict and didn’t want you this is that correct? you question answered, THE FOREMAN: That’s correct. III, 605-06, N.J. at 814.] A.2d
[Bey also explained The court the situation on the record: coming got message [B]etween [the note] first the my from I also bench, depending Court from the Officer that had a they verdict had a verdict. upon they— Defendant the asserts that court’s initial use the words “depending upon” suggests that the verdict was conditioned on parole question about defendant’s receiving an answer to the hearing evidentiary the to ineligibility period. sought Defendant jurors they had the court officer ask the what told relayed message had from the the court officer who interview Arnone, question Judge about the jury Judge and to Arnone Arnone, Judge as a Defendant asked meaning of statement. witness, potential himself. recuse reasoning Judge requests, Arnone denied each Bey III that the jury did not that this had determined Court rendering verdict. On require question an answer to its before its jurors and the appeal, permission seeks to interview the Unfortunately, pendency appeal, this during the court officer. Judge died. Arnone III,
In Bey
we stated:
jury
in two
either
was
can be understood
different ways:
question
jury
asking
length
parole-ineligibility
or
of the
period,
confused about
of the
time before the completion
whether the defendant could be paroled
any
reading more
because the
plausible
find the latter
We
seventy-year period.
jury
aggregate
phrasing
knew
reveals that
parole-
of the
itself
question
ineligibility
More
be seventy
impor-
from two life sentences would
years.
period
waiting
though,
have its
its verdict without
question
reached
tantly,
answered.
*48
129
Second, Bey III challenges defendant our in conclusion jury the trial court’s refusal to instruct concerning seventy-year parole ineligibility period was harmless error. Defendant contends that conclusion contravenes the Simmons, supra. Supreme holding United Sim States Court’s in mons against involved defendant whom the State asserted future dangerousness as an aggravating factor. 512 U.S. at S.Ct. at 2190. Court held that the was entitled to jury ineligible inform parole he would be for life if he Id. Here, was not S.Ct. sentenced death. at 2194. contrast, argue State jury did not that the should consider dangerousness. defendant’s future Sim similarly distinguish We Loftin, mons where we stated: dangerousness” aggravating [T]he State did defendant’s “future as an proffer factor and the available alternative sentence only to death not life imprison- dangerousness aggrava- ment without the Future is not an possibility parole. ting factor in New and our Jersey, statute limits to the enumerated prosecutors aggravating factors. 146 N.J. at A.2d I, 371, 680 677. supra, Loftm Additionally, defendant’s alternative pos- sentence allowed for the be, sibility, slight may parole. as as it Defendant further “prior contends that aggravating equates murder” factor with dangerousness,” rejected “future implicitly contention that we I, I. In Simmons did not we concluded that apply Loftin Loftin despite prior-murder the fact had found the aggrava- ting addition, factor. reach We the same conclusion here. Supreme recently United States held that Simmons estab- Court that, *49 lished a “new rule of law” based retroactivity on federal principles, applied should not be on collateral review. See O’Dell
293
Netherland,
151, 117
Third, this did not address several defendant claims that Court he was arguments Bey III. contends that in Defendant related intelligent right fair trial to the right of his to a deprived on challenges proceeded dire because voir peremptory use of his two that death was life sentences premise the alternative period. Ac- seventy-year parole-ineligibility aggregate an with defendant, instructions vio- the trial court’s erroneous cording to penalty-phase Amendment a reliable Eighth lated his implied they jurors or several stated trial. He asserts that sentencing impartially between alternatives could not deliberate Lastly, defen- parole ineligibility period. thirty-year and a death judges decide adopt a that trial must urges the rule dant Court sen- proceeding non-capital penalty-phase whether before the de- arguments overlap be These tences should consecutive. contentions, which resolved on direct previous this Court fendant’s III, 814. supra, 129 at 610 A.2d Bey N.J. appeal. See Question Answering Jury Delay B. Court’s contention, ap his raised on direct renews Defendant jury’s delay to the responding the trial court’s peal, that parole period of length of defendant’s regarding the question we sentence. As imposing a death ineligibility coerced a verdict III, delay not constitute reversible error. Bey did held in Relitigation of this issue is barred at A.2d 814. N.J. Rule 3:22-5.
VII. Questions Leading was an evasive witness mother Defendant asserts trial court argues proceeding. He penalty-phase leading asking from her counsel by prohibiting defense erred *50 294 however,
questions.
appeal,
On direct
we held
the court’s
permit leading questions
refusal to
was harmless error:
Notwithstanding
objections,
the defense did elicit Ms.
prosecutor’s
Bey’s
pregnant
she drank
defendant,
while
with
that she
testimony
heavily
kept
dark, and that she beat defendant so
on one
apartment
hard that
occasion he
neighbors
blacked out and that on another
occasion
threatened to call the
Ms.
Thus,
can
police.
Bey
be characterized as an
and thus
hardly
uncooperative,
hostile witness.
III,
N.J. at
Bey supra, Therefore, procedurally defendant’s renewed claim is pur- barred Rule suant to 3:22-5.
Additionally, this duplicates claim defendant’s contention that testimony hearing his mother’s at PCR evidentiary would have provided support mitigating the catch-all As previously factor. indicated, supra 261-62, at Bey’s A.2d at Ms. PCR testimony, testimony which was provided by cumulative other witnesses, jury’s would have affected the deliberations.
VIII.
Regarding Unanimity
Instruction
Guiltr-Phase Verdict
argues
court,
Defendant
that the trial
in violation of State
Mejia,
v.
141 N.J.
(1995),
IX. Regarding Unanimity Instruction Penalty-Phase Verdict Defendant charge contends that the trial court’s and the improperly verdict jury sheet the penalty-phase directed to reach a life sentence or unanimous impose a unanimous verdict asserts that the Defendant imposing verdict a death sentence. resulting in life non-unanimity, have included court should sentence, sheet. option on verdict as a third verdict instructed the The court
This is without merit. contention be unanimously that defendant should agree its failure *51 a imposition in the life sen- would result to death sentenced instructions, jury: judge trial told the In his the tence. mitigating aggravating weighing and of the values represented by In the process jurors able full and deliberation the not be after open it that will factors, is possible the one or other. way to come to a unanimous conclusion a to avoid difficult decision. should not come to that course, point simply Of you thoughtful thorough, are conscien- deliberations positions if and But, open after jurors, the possibility the which arrived at individual preclude tiously by a to that that fact to the Court note by foreman should unanimity, report your effect. jury, agrees the Court is state of the then will impose the that such a fixed If Court years. no available for thirty a sentence life with parole imprisonment non-unanimity option as an Similarly, sheet identified the verdict jury. for the to the Court that you you If and deliberations report
NOTE: after full considered agree if above, forth and the either set are unable to on unanimously punishment the defendant to it is the Court will sentence is then so, Court satisfied eligibility no for for 30 years. for life with parole imprisonment in jury engage for need the emphasized The court deliberations, jury to a press reach but did reasonable Thus, on and note court’s instructions verdict. unanimous improperly reach not coerce the the verdict sheet did unanimous decision.
X. Proportionality racially penalty imposed death is argues Defendant men imposed on disproportionately discriminatory manner and is already have that defendant’s ill found tally We defendants. IV, supra, Bey 137 N.J. disproportionate. is not death sentence 645A .2d685. XI. Attorney-Client Privilege During proceedings, appellate the PCR coun sel, Smith, from withdrew the case became a defense witness. cross-examination, After on Smith testified direct and on the PCR produce court him to ordered memoranda of his conversations with concerning preparation petition post- of the for argued conviction relief. Defendant the memoranda were protected by attorney-client privilege. The court overruled that objection memoranda were received into evidence. The provided memoranda the basis additional cross-examination. Court, objection Before this defendant renews his to the admission of the memoranda and the resulting cross-examination. By allowing testify, attorney-client Smith defendant waived the moreover, privilege. privilege, This does not extend communi cations to an relevant ineffeetive-assistanee-of-counsel claim. See 504(2)(c). Lastly, N.J.R.E. testimony the memoranda and Smith’s on cross-examination neither were referred to the PCR court *52 opinion its are any nor the bases for conclusions this Court. Thus, no there was error. death
Defendant’s sentence is affirmed.
HANDLER, J., dissenting.
1984,
Bey
defendant Marko
was tried and convicted of the
capital
of
murder
Carol
and
Peniston
other related offenses. The
jury
him
sentenced
to death. The Court affirmed defendant’s
convictions but reversed his death
v. Bey,
sentence. State
112
(1988)
II).
123,
(Bey
N.J.
The denial of effective for PCR. Almost through virtually all defendant’s claims runs of to pertain of claims counsel all of defendant’s ineffective assistance Aifer, Esq., lead counsel alleged inadequacy of R. Diane was denied certain claims that he defendant’s retrial. Defendant protections, and rights process and due important constitutional to denials. of counsel contributed those that the ineffectiveness rights prominent circumvented was The most of defendant’s to assistance led defendant’s allocution. ineffective Counsel’s he spite in of clear indications that inability right to exercise testify to in a to Defendant was denied wanted do so. regarding the to advise defendant manner. Counsel failed similar unilaterally on testifying, decided benefits and drawbacks testify. would not Defendant that defendant defendant’s behalf she failed counsel ineffective because contends that also preparation necessary investigation adequate undertake deficiency trial, counsel’s and that this contributed have substantial- that would present mitigating evidence failure penalty Finally, trial. defen- in his ly jury affected deliberations in failing to instruct the the trial court erred dant asserts that alternative period parole ineligibility attendant on the verdict, subsequently court and that PCR to a death sentence evidentiary hearing on request for an denying erred the matter. errors, require that defen- individually aggregate, and in
Those sentence vacated. dant’s be
I nearly all defen- ineffectiveness influenced Trial counsel’s *53 by which we evaluate The standards dant’s PCR claims. prosecution, capital-murder in a counsel performance of defense therefore, has a eonstitu- A criminal defendant all-important. are
298
tional
competent
receive
effective assistance
coun-
668,
Washington,
2052,
sel. Strickland v.
466 U.S.
104 S.Ct.
80
Fritz,
(1984);
42, 58,
L.Ed.2d 674
State v.
105 N.J.
We representing must that counsel a defendant in a capital- murder must demonstrate the of a prosecution competence specialist average skills of an expert, simply Most practitioner. particularly, sentencing counsel should this exhibit level of competence phase murder capital prosecution.
299 performance as the finds that counsel’s Insofar Court however, applica- deficient, disagree, the Court’s agree. I I with our The Court distorts heightened prejudice standard. tion of the a has determining when defendant standard well-established in cases. performance capital of counsel prejudiced by the been standard, in fact to Court Purporting apply the enhanced more, concluding definitively, as if much evidence of demands trial, alleged none of the in the room at present affected —or altered —the conversation would have deficiencies juries give live or die. I regarding whether defendant should credit, now evidence and contend that much of the more in helped present him presented or to argues counsel should have jury’s substantially have affected penalty-phase trial would particularly statement. defendant’s allocution discussions— capital heightened to in Reflecting our commitment standards cases, must reversed. I defendant’s sentence be conclude that
II is com- right allocution the most Impairment to Counsel’s of counsel’s ineffective assistance. pelling evidence seriously regard power in this had the performance deficient sentencing jury’s delibera- the value and content diminish this sentence on The failure to reverse defendant’s tions. Court’s right allocution long-held that the compromises our belief claim may and not be diminished. paramount is
A.
in this
inheres
right
a statement
in allocution
make
295, 362,
A.2d
Loftin,
680
v.
146 N.J.
common-law. State
State’s
(1989) (Handler,
dissenting
J.,
Davis,
341,
677
v.
112
see State
N.J.
(1988),
denied,
A.2d 1022
cert.
489 U.S.
109 S.Ct.
(1989).
allocution,
right
L.Ed.2d
right
Defendant’s
“like the
testify,
personal
is
defendants themselves decide
Further,
whether to
A
exercise.” Ante at
736 .2dat 492.
*55
defendant,
counsel,
trial court must address
not
in determining
right
knowingly
whether the
to allocution has been
voluntarily
and
waived, and counsel “should consult with their clients so the
clients can make their
unique
own informed decisions.” Ibid. The
allocution,
right of
the
a
jury
chance for defendant to address the
directly
personally
why
spared,
and
about
his life should be
be
can
compelling
protection
the most
and crucial
to a
available
defendant
capital
Zola,
a
prosecution.
supra,
condemned in
See
Defendant at the following allocution statement: want from me on Life should be why my spared I know that to hear may you proceeding I’m from Doctors that testified in this As know the Various
you. you writing explaining good I am this letter to you So instead not to at myself vocally. Judge if will allow you on this I not know Arnone matter. do you and speak trusting that read I’m he will. read this or let this be but you that I can in this matter there is no excuse that have me before The crime’s you some of give this is to let know one, what I write is not taken as only you to be feeling’s. my live am now and I will old, I old and crime, yr’s At the time of this was 18 yr’s knowing this. I cannot tell you why LIFE with this for rest of my pain night I else in this court room. say murdered nor can anyone someone was But over this to myself. I have not been able to answer question this because thought night and even tho a murder took place I have about why these yr’s not ever I could and would understood I do know that it, I have not still sure. reason. That I know for take life for any someone’s intentionally away is I think but that not true. When that I don’t show emotion’s People say any forgiveness from Alston and Peniston I do ask about what cry happened night But how I am in or think about what Families when cell at my happened. night forgiveness I for know that I cry I or let them when cry can ask them thing’s I these told I am and meant when it, say them also. I have them that sorry anything it or when I don’t say they someone that I don’t mean tho, say’s to them have have who make these statements that I don’t remorse but any people say feeling. I had Before took with me to see I am this crime place, not sat down what *56 long I and within lot, in have cried a time, for a now these yr’s not cried but wrong knowing and for that what I know that sorrow is my happened myself again I am and to to them sorry. the Peniston Family, say chance to to You. Gentleman Thank You for this speak Ladies and his state- opportunity never to deliver given Defendant was jury. to the ment
B.
fulfill her
correctly
counsel’s failure to
holds that
The Court
allocution,
fully
right
of his
inform defendant
responsibility
pros
of exercis
and cons
failure to discuss with defendant
an
purpose
limits of
particular
well
ing
as
as the
278,
See ante at
at
statement,
736 A.2d
was deficient.
allocution
prejudiced as
was not
The
conclusion that defendant
493.
Court’s
however,
analytical errors.
result,
crucial
is founded on several
a
matter,
noting
vacillates
that the Court
initial
it is worth
As an
“sub-
not have
holding that
allocution would
between
stantially affected” and would not
“substantially
have
altered” the
ibid,
jury
Compare
(holding
deliberations.
that “a statement of
by
remorse
defendant would not
substantially
have
affected the
deliberations”)
jury’s
279,
with
at
(holding
id.
The Court’s
contravenes ineffective assistance of coun-
principles
sel
in many respects. The Court reaches its conclusion
by comparing defendant’s written allocution statement
to the
allocution statement that
jury
defendant read to
original
in his
trial,
at which he was sentenced to death. The Court reasons
if
jury
sentenced defendant
to death in
despite
personal plea,
then a similar
statement
this trial
similarly
280-81,
would
have had no effect. See id. at
That compounded error is by the fact that the Court relies on defense counsel’s ássessment of the value of the allocution. The *57 Court positioned describes Aifer as “best to determine how defen- dant’s allocution jury,” would affect contending that because defense counsel jury knew the her assessment that defendant’s allocution statement would not have made a difference is the best prejudi- not performance that her deficient evidence we have inherently contradic- at 495. It is 736 A.2d cial. See ante at according to performance adequacy of counsel’s tory to assess at- performance. The Court’s description of counsel’s own jury with co-counsel assessment of the tempt to buttress Aifer’s *58 guilty about [the murder]. He is of it ... This is not someone may my who I opening glorified killing as have said on in his or enjoyed shedding proud of blood or is of his or work feels that justified anything he was Apart or like that.” Ibid. from the fact unapologetic that Aifer’s convey comments are and fail to contri- tion, they compare expressed by cannot with the remorse defen- statement, composed dant’s written even as guidance without the of counsel.
Further,
attempt
the Court’s
to deconstruct defendant’s allocu-
statement,
tion
unilaterally rejected by
which was
Aifer after she
it,
“glanced” at
as a
of determining
means
whether the allocution
would have made a difference to the
that heard defendant’s
case, is unfair. That statement was written without advice of
counsel,
deficiency
acknowledges
that the Court
responsible
is
“problematic”
portions
of defendant’s statement. See id.
279-80,
Only
Finally, the issue of “whether defendant would have delivered allocution, advised,” properly even if which the Court dis- “pure speculation,” counts as see ante at 736 A.2d at is analysis. irrelevant to the need not if We decide defendant would right have exercised his right allocution —he has a to be advised of it. If we determine that had right, he chosen to exercise jury’s affected, deliberations would have substantially been we performance must find counsel’s Speculation ineffective. about whether defendant right especially would have exercised his is pointless light of the fact that defendant was never informed of allocuting in this advantages disadvantages of potential retrial. would of the likelihood that defendant if an assessment
Even
relevant,
allocution were
the Court’s
right
have exercised
is not
likely would not have exercised
finding that he
*59
The Court contends
defendant’s
supported by the record.
object
told the trial court that defendant
when Aifer
failure
allocution,
and the fact
not
a statement
would
offer
“
hoping
proceeding that he ‘wasn’t
in his PCR
defendant testified
statement,”
happen
indi-
anything’
particular
would
with
right
his
likely would not have exercised
cates that defendant most
assessment,
283,
Contrary to the 506-07, powerful ment, at as a supra at 736 A.2d see have feelings of remorse that would expression of jury substantially affected deliberations. court of review of lower our deferential standard
We base
theory
jurors on the
regarding
impartiality of
decisions
[Cjourt
from the realities of
‘perhaps too far removed’
“this
is
nuances concealed
a ‘bloodless
appreciate the
voir dire to
(1991)
1, 87,
Marshall,
307
Court,
allocution,
recognized by this
also
importance of
as
analyzed in the context of the Court’s
sharp
into
relief when
comes
may
be submitted to
finding
victim-impact
statements
Muhammad,
v.
145
proceeding. See State
penalty-phase
in the
(1996)
statute,
23,
(holding victim-impact
A.2d 164
678
N.J.
2C:11-3c(6),
consti-
under federal and State
constitutional
N.J.S.A.
tutions).
Muhammad,
victim-
supra,
In
the Court held that
Legisla-
in accordance with the
impact
were admissible
statements
in
participation of crime victims
desire “to increase the
ture’s
so,
33,
doing
justice system.”
at
unique being human whose loss is felt the victim’s survivors.” Id. at 678A.2d 164. strong parallel
The Court
in Muhammad found a
between
statement,
victim-impact
a
evidence and defendant’s allocution
justified
acceptance
victim-impact
its
as
evidence
admissible
(“[Jus-
45-46,
ground.
evidence on
See id.
309
statement,
301,
swpra at
736
draft allocution
see
Defendant’s
- 07,
jurors
expression of remorse that
A
at 506
contained an
.2d
eminently
in
appeal
important
could have found sincere. His
that,
ac-
press accounts of the crime
as defendant
light of the
ibid.,
allocution,
see
in
dehumanized him. “The
knowledged
depends on the
that a
system
capital punishment
of
belief
entire
community
responsi-
jury representing the conscience of the
will
guided
deciding
in
who shall live and
bly exercise its
discretion
Ramseur,
supra,
311,
106 N.J. at
individualized determination that a defendant
shall live or die. Whatever
Constitution
it
our common
that a defendant not be
permits,
bespeaks
humanity
jury,
sentenced
death
“which never heard the sound of his voice.”
(quoting
[Zola,
112
548
1022
v.
429-30,
N.J.
A.2d
McGautha
supra,
Califor-
(1971),
nia,
183, 220,
1454, 1474,
U.S.
S.Ct.
28 L.Ed.2d
vacated on
*63
(1972)).]
grounds,
other
408
92
Ill Defendant claims that Aifer was ineffective because she unilat- erally usurped right testify. rejected his to The PCR court this claim, reasoning that because defendant became familiar with the 1984, right testify during prior to his murder trials in 1983 and he was, therefore, right testify aware of the to in his retrial. Accord- court, ing to the express the fact that defendant did not an “affirmative, positive testifying,” light in prior interest of his understanding, right. confirmed that he waived the correctly perceives
This Court
that counsel’s failure to “inform
properly
testify
that the decision whether to
was his
sufficiently
with
[and]
defendant” was deficient.
ante
consult
See
271,
at
A.
A
right
testify
criminal defendant has a constitutional
on his
Arkansas,
44, 51-53, 107
2704,
own behalf. Rock v.
483 U.S.
S.Ct.
2708-10,
37,
(1987);
97 L.Ed.2d
Savage,
46-47
State v.
120 N.J.
“
(1990).
594, 626-28,
right
311
”
Savage, supra,
process.’
in a fair adversarial
See
process of law
51,
Rock,
626,
supra, 483
at
(quoting
defendant must be
the tools he needs to assess
testimo-
*64
specific
right
the
is
right
nial
in the context of the
trial which
responsibility of a
being contemplated. Because
is the
“‘[i]t
testify
on
to
defendant’s counsel ...
to advise defendant
whether
advantages
disadvantages
doing
so
explain
and to
the tactical
or
”
630,
so[,]’
doing
Savage, supra, 120
at
The record demonstrates that counsel did not defendant to testify. right understand the nature of his to Defense counsel’s right testify failure to inform defendant of his to must be deemed performance. deficient Accord id. at 736A.2d at 489. prejudice solely The Court’s assessment of relies on evidence right testify that defendant’s had been exercised to little avail addition, previous trials. In should Court be concerned with probability jury’s whether there exists a reasonable affected, substantially deliberations would have been not with whether the outcome of those deliberations would have been substantially testimony. 273-74, altered ante at Cf. 736A.2d at 490. testimony
A perhaps important piece is the most jury might evidence a A jury’s consider. sentence founded on a testimony explore deliberations that did not of the defendant himself, if right present he decided to exercise his such testimo- ny, surely yield empty prejudice would an sentence. The performance plain. defendant from counsel’s deficient is sum, In properly “sufficiently counsel “did not inform” or con defendant,” sult with unilaterally id. at 736 A.2d at made testify the decision whether or not defendant would without testified, his testimony consent. Had defendant would have Therefore, substantially jury’s affected the deliberations. counsel regard. was ineffective in recognize this The Court’s failure to trouncing this of one of defendant’s most fundamental constitu unjust. rights tional is
B. capital prosecution, right testify the context of a is similar to the of allocution. Both allow the appeal accused to *65 to the personal potentially and to lend a and forceful voice to his important rights defense. The denial of these in present necessity heightened procedural case demonstrates the protec- to capital voluntarily tions ensure that defendants knowingly and rights testify. waive their way to allocute and In much the same
313
require greater
capital
we
assurance when a
defendant is
accepting
plea agreement,
heightened
a
a
required
standard is
because of
punishment sought by
here
the extreme nature of the
Davis,
374,
the State. See State v.
N.J.
A.2d 1082
(1989) (reversing
guilty
death
and
plea
sentence
where defendant
inadequately
regarding
eligibility
informed
his
for death
383-90,
(Handler, J.,
penalty);
id. at
dissenting
IV also counsel penalty Defendant claims that was ineffective at the present because to trial she failed several witnesses who could acknowledge Savage, concern, 3 I Court’s expressed supra, telling the trial court to follow a
to require
special procedure, explicitly
securing
privilege
a
about,
of,
defendant
and
an
waiver
to
...
explicit
testify
waive
could
influence
defendant
his constitutional
inappropriately
right not to testify____
(quoting
[120
Vose,
NJ. at
v.
314 upbringing, as well as attested to defendant’s abusive have for the fact that was intoxicated penchant abuse and he substance alleged night compelling the murder. Most of on the of witnesses, key are failure to interview several omissions counsel’s only meet for one hour with defendant’s and her decision to mother, Bey, person perhaps important was most Patricia who counsel mitigation case. The Court concludes that to defendant’s prejudiced by and was not these was ineffective 252-69, I shortcomings. at 736 A.2d 479-88. dis- See ante at agree.
A.
assemble,
investigate,
present mitigating
and
“The failure to
capital
is
evidence
the most basic form of ineffectiveness of
III,
322,
supra,
at
A.2d 1
counsel.” Marshall
148 N.J.
690
(Handler, J., dissenting).
be
Counsel cannot
found deficient
decision,
making
strategic
a
even if the tactic
reasonable
ultimately
thorough
“Strategic choices
after
unsuccessful:
made
investigation
plausible options
of law and facts relevant
are
Strickland,
690-91,
virtually
supra,
unchallengeable.”
466
atU.S.
2065-66,
695;
Savage, supra,
at
see
104 S.Ct.
Defense counsel failed conduct a gation necessary mitiga- witnesses evidence establish background Investigating prepara- defense. tion presentation mitigating gargantuan tion for the is a evidence begin investigation Aifer task. did not her factual this case years was assigned until June almost two after she the case and two months before the commencement of defendant’s retrial. Simply put, two months investigation is insufficient. Aifer was only able to interview potential lay seven in person. witnesses *67 She witnesses, evaluated the demeanor of potential three including El, pursuant Ri phone conversations. She failed to interview potential several regarding alcoholism, witnesses Bey’s Patricia abuse, El, neglect Oilstone, and Evans, Kim James Sullivan —Mac Stewart, Theopolis and Armand Veltre. And she interviewed six other witnesses whom she chose not to call at trial. Due to Aifer’s delayed investigation, this Court cannot endow her decisions to forgo calling witnesses whom she had not interviewed and her cursory approach to interviewing those whom she did call to testify any presumption with competence. correctly Court performance finds that counsel’s regard was deficient with to trial - preparation presentation and the of witnesses. See ante at 254 55, 736A.2d at 480.
B.
concludes, however,
The Court
investigatory
the numerous
deficiencies that characterized
preparation
Aifer’s
of defendant’s
mitigation defense can
prejudiced
not be said to have
defendant in
way
require
such a
as to
that defendant’s sentence be vacated.
See id. at
garding
own violent behavior and
care
at the
strong
presented
of evidence
would have been
corroboration
testimony
simply
as
cumulative
cannot be dismissed
retrial. Such
duplicative
strengthened and added to the
or
would have
—it
adduced
1990 retrial. Aifer’s failure
quantum of evidence
at the
many
argu-
witnesses undermines the
even
interview
these
strategic.
not to call
ment
the choice
them was
regard
I further
with
to Patricia
question
Court’s conclusion
Bey’s testimony. The Court asserts
defendant was
extensively
failure
more
with Ms.
prejudiced by
prepare
Aifer’s
(“Even
Bey
if
Bey.
I disagree holding also with the Aifer’s Court’s limited presentation drug of evidence of defendant’s and alcohol abuse substantially “would not have altered the penalty-phase delibera- 259-60, retrial, tions.” at at See ante 736 A.2d 483. At the experts longstanding defense testified about defendant’s abuse of addition, El, Bey, Wendolyn alcohol In drugs. and Patricia and Clarence Horton testified that defendant had abused alcohol since approximately years Bey he was ten El old. recalled that unconscious, drug defendant had been found due to a and alcohol overdose, evidentiary hearing, on Route 35. At PCR defen- produced drug dant additional of his addic- evidence and alcohol crimes, In preceding tion. the weeks Jackson defendant together. time, got often drunk At same Stewart observed marijuana Every alcohol and abuse use and cocaine. murders, El time Mac saw defendant in the few months before earlier, years defendant was intoxicated. Evans and Kim Three daily Oilstone recalled defendant was intoxicated on a basis. suspected drinking. Kenneth McGloun that defendant was Three drug experts defense further and alcohol testified that defendant’s controlling impulses. him prevented abuse from his violent addition, through was evidence substance abuse introduced testimony expert Young. of defense Evans, Stewart, El, Oilstone, call
Aifer’s failure to Mac and Kim interviewed, merely whom as not she had witnesses was representation prejudicial testimony deficient was because the —it augmented of these four witnesses would have evidence of presented Although defendant’s alcoholism that trial. *69 expert jury that had abused witnesses informed the defendant adolescence, throughout testimony drugs alcohol and his from actually drug witnesses or use who observed defendant’s alcohol perhaps greater impact. or had a intoxication would have presenta- position The Court also takes the that Aifer’s deficient tion of defendant’s lack of treatment for substance abuse was not Id, 269-70, Again, disagree. at 488. I
prejudicial. at 736 A.2d that not seek Bey proceeding Patricia at the she did testified PCR drugs help although he was to for defendant she knew addicted type the direct of this of evidence to and alcohol. Given relevance i.e., blameworthiness, level of responsibility a defendant’s crime, Bey’s testimony him Ms. should be to for his attributed phase important penalty an role in defendant’s played would have presentation. counsel, by undoubtedly impact of failures combined these by any attempt squeeze
caused
to
into' two months what
her
competent capital
attorney
defense
would have taken much more
grave
prejudice
complete,
potential
time
had
defendant
sapping
strength
jurors
with
which the
viewed defendant’s
evidence, thereby
mitigating
affecting
nature of
their delibera-
substantially.
rightly provides
This
tions
Court
few barriers
ability
present mitigating
penalty
evidence in the
understanding
trial
that such
based on
Court’s undeniable
evidence is relevant to “this most delicate kind of determination.”
Davis,
622,
supra,
96 N.J.
punishments,
662, 16
advantage of their
son
should
(1976).
determination that death is
[b]ecause
v.
North
S.Ct. 135
lay
Further,
hold
th[e]
Carolina,
there is a
[135],
fundamental distinction between the death
“it is natural
client____”
every
V evidentiary At proceeding, requested an PCR hearing possibility to reexplore prejudice resulting from the *70 trial court’s failure to jury fully assure that the understood the sentencing alternatives to death. argued Defendant that some of jurors might have been satisfied to sentence defendant to life they had known he would never be released. The PCR court request. denied defendant’s upholds This Court now that denial. 294-95, Ante at 736A.2d at 502-03.
I believe defendant’s claim is
requires post-conviction
valid and
problem
relief. The
must be traced back to
proceedings.
the trial
deliberations,
jury
While
sent a note
asking:
to the court
Bey
eligible
parole
“Is Mr.
ever
for
seventy years?”
the next
III,
Bey
599,
supra,
Prior to the
deliberations,
the trial court shall inform the
the sentences which
be
may
to subsection b. of this
imposed pursuant
section on
the defendant if defendant is not sentenced to death.
properly
order to
balancing process
conduct the
in which
capital sentencing jurors
engage, “penalty-phase jurors
must
...
must
told
sentencing options
be
and understand the conse-
quences of their
prior
decision
to deliberation.” State v. Timmen-
515, 635,
(1999)
dequas,
II,
161 N.J.
To hide
is to mock
inaccurate speculation,
on uninformed and possibly
to be based
decision
jurispru-
goals
modem death
by
penalty
and consistency required
of rationality
the
dence.
188.]
at
524 A.2d
311,
106 N.J.
[Ramsewr, supra,
death,
not
it should
jury
choosing between life and
the
is
“[W]hen
that a defendant
considering the likelihood
prevented from
be
Timmendequas, supra,
in
remaining
prison.”
life
spend his
would
505,
Nelson,
at
636,
(citing
supra, 155 N.J.
A.2d 55
at
737
161 N.J.
281).)
the
confused about
the trial court is
A.2d
‘When
715
deliberations,
proce-
the normal
jury’s request during
of a
nature
in
to resolve
jury into the courtroom order
‘bring
dure is
”
715, 737
Timmendequas, supra, 161 N.J. at
uncertainty.’
[the]
Brown,
55) (Handler, J.,
dissenting) (quoting
v.
State
A.2d
(other
329,
citation omit-
(App.Div.1994)
N.J.Super.
Despite
prevent jurors
improperly inserting
our efforts to
from
Nelson,
balancing process
death,
into their
the alternatives to
see
supra, 155
(holding
juries
N.J.
Whether a defendant will
free in
or sometime
seventy years
within
if
may similarly
he is not sentenced to death
potent
be a
factor that the
considers.
Insofar as the death
in
may
sentence
this case
have
jury’s
been based on the
fear that
released,
day
defendant would one
be
the difference
between
thirty-year parole disqualifier
seventy-year parole
and a
disqualifi-
significant
er is
twenty-five years
when the defendant is
age.
severely
that,
The
by asserting
Court
minimizes the difference
like
the mistakenly-proffered thirty-year parole disqualifier, “defen-
dant’s
alternative sentence
possibility,
[actual]
allowed for the
as
be,
slight
may
parole.”
as it
See ante at
What, then, request minimum défendant’s remedy? At a is the by granted the PCR evidentiary hearing should have been for an failure to clear up in make for the trial court’s court an effort to sentencing jury’s understanding of its any ambiguity in the up engage in rejects request to options. “ Court ” jurors interrogate ‘extraordinary calling procedure’ back does they discharged because “the record have been them after ” procedure. finding ‘good permit cause’ support a however, am, hard-pressed to A.2d at 501. I Id. at what, “extraordinary” of the sentence the context determine defendant, if “good cause” not a imposed upon would constitute regard consequences to the of its jury’s possible confusion with verdict. may irrevocably de- fundamentally, have been
More
defendant
a life sentence. The
opportunity to have secured
prived of the
jurors may
jury implied that some
have
question posed
lifetime,
he
paroled
if
could not be
believed
*73
not be sentenced to death.
should
recognize
in
in a
case
be said
some sense
may
reversible error
any
capital
We
jury
resulting
verdict
in
of the
to receive
to have
defendant
opportunity
deprived
errors
the usual and
for such
remedy
and that nevertheless
proper
imprisonment,
sentencing proceeding
of the
in which
of the death sentence and retrial
is reversal
again face the death
the defendant may
penalty.
188.]
[Ramseur, supra, Here, jury because we cannot be sure on what basis the rendered verdict, its defendant can be said to have lost opportunity “the jury case, receive a verdict” other than death. such a we must possible avail ourselves of all grave injustice. remedies to avert If jury’s question the record on the at trial cannot be constructed reliably in evidentiary hearing, only an option our is to vacate defendant’s impose death sentence and a term of life.
VI capital prosecution, Because this is a apply the Court must governing post-conviction standards in relief a manner that max- protections. imizes constitutional among Paramount rights right circumvented was the denial of his of allocution. The my in supports record view claim that due to counsel’s ineffective assistance he unique oppor- was denied the and critical tunity penalty in his personal appeal jury trial to make a to the denial, waiver, mercy. Similar without an effective of defendant’s testify compounded deprivation. Defendant has also established that he was denied effective assistance of counsel in present mitigating his effort to penalty evidence at his trial. That inadequate investigation, claim inheres counsel’s resulting in the possible mitigating testimony serious omissions of discussed here- Finally, in. clearly directly was not informed court that defendant could prison be made to serve a term of no seventy-years possibility less than with parole no as an alterna- tive to death. cases, apply capital
Under the enhanced standards that those ample compelling grounds serious errors constitute to award I, therefore, post-conviction relief. dissent. join opinion. Justices O’HERN and STEIN in Part II of this For Justice PORITZ and Justices affirmance —Chief POLLOCK, GARIBALDI and COLEMAN —4. HANDLER, O’HERN,
For reversal —Justices and STEIN —3. notes defense Newman in interview taken told 1984. These notes indicated defendant had Newman that drugs alcohol he had been under the influence of when he murdered Peniston. had hearing, At the PCR Aifer testified that she not introduced testimony persuasive it defendant’s 1984 because was not and had
Notes
notes The Court McCauley’s is even more attenuated. evaluation [McCauley] the effectiveness of trial dismissed that “at the time allocution, Id. at having read the statement.” even without an only to reveal co- Again, that serves A.2d at 495. McCauley only fail to did performance deficient counsel’s —-not allocution, he decided about the with defendant consult assessing im- its proposed statement before to read perfor- case, counsel whose rely primarily on the pact. any In of the deficient reviewing to assess the effect mance we are analysis. warps the performance testimony experts from who described that the The Court finds likely have spoke with them would as he defendant’s remorse by defen- goal an allocution statement the same as accomplished case Indeed, far as to note that this goes so dant. the Court witnesses, remorse, may expert as related “defendant’s A .2d at 496. Id. at been more effective.” have The conclu- support that contention. no evidence Court offers rather, with seems, on the notion that witnesses to be based sion weight likely carry more testify eloquently are who credentials fact, inarticulate defendants. jury potentially than with a may lend Although experts may in this context. opposite be true by apply- regarding matters at trial technical credibility to issues diagnoses and conclu- expertise professional to reach ing their sorry he sions, testimony is for what that a defendant expert’s an it the possibly carry with cannot displays that he remorse did or regret. The expression of that own force as same mitigating may to confirm serve inarticulateness same capacity. In the immaturity or diminished evidence to the Aifer’s statement contention that regard, the Court’s plainly is an allocution statement purpose as served the same guilty feels jury: course “[0]f [defendant] told the wrong. Aifer