*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW BIEGENWALD, RICHARD DEFENDANT-APPELLANT. Arguеd February Decided March 1987.
17 Vida, Union, Glen J. argued the cause for appellant. Fagen,
James Prosecutor, argued Assistant the cause for Kaye, A. respondent Prosecutor, Monmouth County {John at- torney). Moczula, Deputy Attorney General,
Boris argued the cause curiae, Attorney for amicus I. General of Jersey New {Irwin Kimmelman, General, Attorney attorney). Former
Table of Contents 18 Introduction ........................................... 18 I. Facts .................................................. and of N.J.S.A. Per Se Penalty Constitutionality Death II. 25 ................................................ 2C:ll-3 26 Pretrial Issues ......................................... III. 26 Dire ......................................... Voir A. 26 Bar ............... Challenges at Side for Cause 1. Participation 27 Dire ................. 2. Counsel Voir Hardship 30 .................. of Jurors 3. Excuse 30 Publicity and Venue ............................... B. 38 Misconduct ........................... Prosecutorial C. 41 Charge Phase ............... in Guilt Doubt Reasonable IV. 45 Sentencing ...................................... Issues V. 45 Jury ....................................... A. Waiver — Defendant c(4)(c) Applied as Aggravating Factor B. Mitigating Factors......... Aggravating Weighing C. Resentencing .......................................... VI. ............................................. Conclusion *5 delivered was the Court opinion WILENTZ, C.J. of murder convicted Biegenwald, was
Defendant, Richard judge County jury and by a Monmouth death sentenced as to this Court directly appeals He 1983. in December con- murder defendant’s 2:2-l(a)(3). affirm R. We right. See instruct failed trial court Because viction. however, must reverse we sentencing phase, in the properly sentencing proceeding. new for a and remand of death sentence I.
Facts night 27, On the August eighteen-year-old Anna friend, Olesiewicz and Hunter, Denise drove from Camden to Neptune City planning stay at Denise’s uncle’s house. They went over to Asbury Park boardwalk. Olesiewicz and Hunter sat on a boardwalk bench to listen to the coming music nearby out of a club. Hunter left for a short while to use a bathroom, returned, and when she she found that Olesiewicz longer was no on the boardwalk bench where she had left her. After Olesiewicz, she failed to find Hunter returned to her uncle’s home and missing persons filed a report the next morning.
On January 1983, the skeleton of a female body was discovered in a vacant lot behind a fast food restaurant on Route 35 in Ocean Township. By matching charts, dental authorities identified the body as that of Anna Olesiewicz. When body discovered, it was clothed in the items Olesiewicz was last seen wearing—blue jeans and a dark shirt—except that a black gold ring was missing from her *6 finger. holes, In the skull were four bullet and three the lodged bullets were within the Testimony skull. at trial indi- cated that the victim died as a result the bullet wounds. It was estimated that death prior had occurred several months to autopsy. Inadequate the tissue remained to enable blood alco- hol or tests performed chemical to be on the body. body discovered,
One the week after was twenty-two-year-old Smith, apartment Theresa who had shared an with defend- the ant, forty-two-year-old Biegenwald, wife, Richard Di- and his ane, police came to and recounted story implicating a Biegenwald shooting. story in the essentially This was same as to which she later at Biegenwald’s testified trial. previously
Smith had worked as a waitress Bieg- with Diane enwald with Biegenwalds and lived from through June in a multi-apartment Asbury October 1982 house in Park. Shortly in Biegenwalds, after she moved with the Smith and the defendant became friends. during
Smith relationship told how of their course she protege became the defendant’s he encouraged and her to find kill prove and a “victim” to him that she “tough.” They to was “Betsy,” discussed that Smith should murder Smith’s co-work- Friday, August er. On date of Anna Olesiewicz’s disappearance, Smith Betsy, drove around shore towns with having contemplated Biegenwald plan and with discussed Smith, however, Betsy. murder called defendant and told go him through that she could not with the plan, murder and Asbury apartment she returned alone to sleep. Park Smith Biegenwald testified that her awakened later that same night, she although why. did not return to recall Unable to and, sleep, kitchen, looking she went to the out the window driveway, sitting toward the body” saw a “shadow a Biegenwald given car that had to sleep. to her. She returned day Biegenwald At the end of the next took Smith into the garage body where he lifted a mattress show Smith a female
in unzipped jeans, a dark shirt and no shoes. Smith did not see large green plastic bag face because a covered the head Biegenwald was secured around the neck. asked Smith to body—to “pick leg up” touch the her him and tell how it felt. The defendant told he had shot the Smith victim the head boardwalk, meeting telling marijua- after her on the her he had na, taking Biegenwald her back to the house. told Smith had intendеd to Olesiewicz been be Smith’s first victim but when he had tried to waken Smith while the victim still alive, get up. Biegenwald Smith would not removed from the finger gold ring victim’s black and which one month later he *7 gave day Biegenwald Fitzger- The next Smith. and Dherran ald, defendant, a friend of the in neighboring who lived apartment, disposed body behind the fast food restau- rant. police
The Asbury arrested the residents of the Park house— Biegenwald, Fitzgerald, girl- Richard and Diane Dherran his friend, daughter—based and her on Smith’s statement. In the Biegenwald’s apartment police basement discovered ammunition, weapons, three and controlled substances later determined to hospital have been stolen from the where Diane Biegenwald weapon Fitzger- worked. The murder was found in apartment weapons. ald’s as was an extensive cache of The gold ring missing finger black and from the victim’s was Biegenwald’s jewelry discovered Diane box. Smith testified wearing ring gave that after for several weeks she it to Biegenwald. only Diane ammunition found that fit the .22 Short, the weapon, bag murder was discovered in a near the Biegenwald slept. basement room where The ammunition sales registry sporting goods Township at a store in Ocean showed Biegenwald Fitzgerald pur- Diane Dherran both had chased .22 Short ammunition. County
The defendant was indicted a Monmouth Grand 4, 1983, (1) Jury May on ten counts: the murder Anna (N.J.S.A. 2C:ll-3a(l), (2))1; (2) (Sec. Olesiewiez felony murder (N.J.S.A. a(3)); (3) robbery 2C:15-la); (4) armed possession of a (NJ.S.A. weapon for purpose 2C:39-4a); (5) an unlawful unlaw (N.J.S.A. possession of weapon 2C:39-5b); (6) ful possession (N.J.S.A. weapon by of a 20:39-7); (7) convicted felon posses (N.J.S.A. marijuana sion of 24:21-20a(4)); (8) possession of a (N.J. dangerous controlled substance with intent to distribute 24:21-19a(l)); (9) possession S.A. of a dangerous controlled (N.J.S.A. 24:21-20a(l)); (10) substance possession unlawful (N.J.S.A. weapons 2C:39-5b, of a 5d). number The sixth count Biegenwald pleaded was severed before trial. not guilty all counts.
Fitzgerald initially charged was also with the murder of Anna but charge Olesiewiez this in exchange dismissed for Fitzgerald’s testimony against Biegenwald.
The case pretrial received extensive publicity the local press. The defendant possibly was linked to four or five murders, previous local teenaged girls. most of Local and regional papers Biegenwald arrest, covered the investigation, nicknaming and trial extensively, him the “thrill killer” be- cause, reported, it was only pleasure. he killed attorneys venue,
Defendant’s change moved for a claiming publicity the extensive Biegenwald would not allow a fair trial denied, in the July local area. On 29 this motion was as was a *8 motion to dismiss the indictment based on defendant’s claim prosecutor’s prosecutorial that the actions constituted miscon- The duct. trial court commenting ordered both sides to cease press regarding to the pending the indicted matters others indictment. 2C:ll-3, containing provisions, 1N.J.S.A. the Code's murder of consisted five subsections, (a) (e), to at the of time these crimes and their trials. The death convenience, penalty provisions (c) (e). are found in subsections to For shall, instance, referring provisions c(l) designate to these we use Sec. to 2C:ll-3c(l). totality,
N.J.S.A. When cited its N.J.S.A. 2C:ll-3 will herein after be referred to as "the Act." itself, 14, began The trial which on November was extensive- trial, covered in ly reports. day local news before the news Biegenwald’s murder, reports prior discussed conviction for repeated prosecutor’s he killed statements that Olesiewicz night,” “he because wanted to see someone die that and linked Biegenwald to five area murders.2
The venue motion was of renewed at the start the trial. The initially court grant trial stated that it would refuse to jurors inability motion unless 250 their to impartial. indicated did not renew Counsel the venue motion after close of voir dire.
During sought voir dire trial court at first to determine potential jurors’ general capital punish- whether views about unqualified made them to sit in capital ment case. The court initially general questions concerning potential ju- asked exposure pretrial publicity rors’ to and refused a re- defense quest inquire specific public to into details from recalled objected scope accounts. Defense counsel that the narrow permitted seating jurors voir dire who would consider response, began defendant’s other crimes. In the trial cоurt question jurors knowledge those whose answers indicated background knowledge. defendant’s as to the extent of such the eighty-eight venirepersons questioned pretrial Of about publicity, thirty-five the forty-seven the court dismissed who they specific indicated that recalled details of other murders only court prospec- connected defendant. The excused those jurors specifically they tive who indicated that could not be remaining impartial. jurors Of the twelve who had been ex- posed publicity, to substantial four over were seated defense 2Biegenwald subsequently for four other murders: Maria Cial- indicted Iella, 31, 1981; Osborne, 7, allegedly April on murdered October Debra on 1982; Bacon, 1982; Ward, Betsy 20, September on November and William on 630, 21, (1984) curiam). Biegenwald, (per 1982. See State v. 96 N.J. guilty February Biegenwald Ward was found of the murder of William imprisonment. sentenced life Id. at 633-34. *9 challenges peremptory for cause. counsel used Defense chal- lenges jurors. Every to these challenge remove for cause denied, the defendant court to hear was and the refused chal- lenges at side for cause bar. Defendant’s counsel exhausted all twenty peremptory challenges jury the final was before seated. reported jurors waiting
Several to the trial court that while to questioned, they had discussed defendant’s case as well as reports previous alleged prior news his conviction and court jury panels murders. The then instructed the first two selected, not to discuss the case. When final at least one member had juror been identified as a who had discussed the case while awaiting voir dire.
At trial the State’s main witnesses were Smith and Theresa Dherran Fitzgerald. Smith testified to what she had told the police in January. Fitzgerald friendship testified about his with Biegenwald, statements made defendant to him about the murder, disposal and the body fast behind the food restaurant.
Biegenwald’s Fitzgerald, defense was that an con- admitted killer, tract had murdered Anna Olesiewicz. Defendant presented testimony of three inmates at Trenton State Prison essentially story. They who told the same claimed that Fitzgerald, prior prison negotiating plea arrangement, his on seeing bragged news headlines about the murder had Biegenwald’s he had killed Olesiewicz. Each of had witnesses mail, initiated through having contact with defense counsel learned prison. although of the case in All three said that witness, defendant did initiate contact with the the defend- ant given had them lawyer. the name and address of his murder, guilty posses-
Defendant was found five counts: sion of a weapon purpose, for an counts of unlawful two possession permit, weapon possession of a of a without a controlled substance. signed right
Defendant his relinquishing written waiver However, phase. penalty prosecutor refused waiver, required by consent to the his and as consent is *10 c(l), sentencing by Section jury conducted the same that guilt. had determined sentencing trial,
At the prosecutor introduced as an aggravating factor evidence of defendant’s 1959 murder convic- tion, for eighteen years which he had served seventeen or c(4)(a). prison. prosecution Sec. also asked that the aggravating consider as an factor that the murder of Anna vile, “outrageously wantonly Olesiewicz was or horrible or aggravated inhuman that it involved ... an battery to the c(4)(c). victim.” Sec. sought mitigating
Defendant to three establish factors: c(5)(a), that defendant was under the influence of extreme or mental emotional disturbance insufficient to constitute a prosecution; c(5)(d), ability appreciate defense to that his to wrongfulness require- of his conduct or to it conform to the significantly impaired ments of the law was as a result of mental disease or defect degree but not to a sufficient c(5)(h), a prosecution; constitute defense to and any other unspecified factor that was relevant to his character or record circumstances of the offense. Defendant introduced testimony psychiatrist from a forensic Biegenwald that suf- fered from personality a severe disorder as known anti-social personality paranoid psychiatrist explained with traits. The Biegenwald that was abused as a child and was institutionalized age eight, diagnosed at the schizophrenic given as twenty Biegenwald shock treatments. electro-convulsive sub- sequently entered hospital. returning a state On home he was again father, mother, by beaten his routinely stole from his escaped age from days eighteen his house for at a time. At he store, robbing was convicted of a murder committed while for eighteen year prison which he served the A seventeen or term. psychiatrist initially who had been called defense in preparation insanity of an but had advised that defense counsel legally Biegenwald defendant was not insane testified that capacity appreciate wrongfulness lacked the emotional his act or to conform his behavior to the law.
The court instructed the that aggravating factors must beyond be found a reasonable doubt but the jury that had to be only mitigating “satisfied” that a factor existed. It instructed mitigating that all of the together had weighed factors to be against aggravating each factors alone. It did not instruct the jury beyond had to be convinced a reasonable doubt the aggravating outweighed mitigating factors factors, charged but if aggravating each factor was not factors, outweighed mitigating the combined death would be imposed. clarification, After request explained court *11 c(4)(c) that the conditions in listed Section in were be read the disjunctive. It explained find aggravating that to that factor existed, c(4)(c) the had jury to find that the attack “involved indicating either torture or depraved conduct mind or that the attack was so savagely outrageously cruel violent that the adjectives wantonly, vile or horrible or justified.” inhuman are explain It did not aggravated what constitutes an battery. jury aggravating found both offered the factors State beyond to exist jury a reasonable doubt. The found two mitigating capacity appreciate factors—that the defendant’s wrongfulness the of his or to conduct conform his conduct to requirements significantly of the law impaired was as a defect, result of unspecified mental disease or and that another factor that existed was relevant to the defendant’s character or record or to circumstances of the offense. The did not find that the was defendant under the influence of extreme mental or emotional Finally, disturbance. found that aggravating neither outweighed by factor was the combined mitigating and, accordingly, factors the court sentenced defend- ant death.
II. Constitutionality Penalty of Death Per Se and 2C:ll-3 N.J.S.A. law, argues penalty death hence any Defendant Act, punishment inflicts cruel and unusual forbidden eighth I, amendment of the federal Constitution and Article paragraph Jersey 12 of the New Constitution. For the reasons given in Ramseur, (1987), decided State v. also N.J. today, reject we this contention.
III. Pretrial Issues A. Dire Voir
1. Challenges for Cause at Side Bar
challenges
Defendant
as reversible error the trial court’s
ruling
required challenges
for cause to be asserted and
court,
explained
open
presence
in
challenged juror,
rather than
practical
at side bar. Defendant contends
ruling
compel
effect of the trial court’s
was to
defense counsel
to use some of his peremptory challenges
jurors
to remove
who
prejudice against
otherwise could have harbored
defendant.
Defendant cites three
ruling
instances in which this
applied by
However,
the trial court.
in the
case
the first
ruling,
request
such
challenge
to assert
at side bar
challenge
occurred after the
was denied. The second instance
challenge
open
involved a
for cause
asserted
court immedi-
*12
ately
Here, grounds
after a side bar conference.
for the
challenge
being
upon
were described as
“based
the statement
just
bar,”
we
had at side
so that the challenged juror did not
grounds
challenge.
hear the
for the
Only
example
the third
clearly
challenge
involved a
for cause that
the trial court
required
juror’s presence,
counsel to assert in the
rather than
at side bar.3
Smith,
476, 483,
den.,
State
N.J.
cert.
400 U.S.
(1970),
hear for cause in open at side bar or court is one dire, 3During challenges voir the balance of the the trial court permitted for cause to be asserted at side bar. There, .within the discretion of the trial court. initially counsel challenged juror for cause at thе bench. Counsel then challenge court, asserted his next open in claiming later that this was the at court’s direction. After counsel made subse- quent challenges for cause requesting permission without to approach bench, the he informed the that court he felt com- pelled challenge to peremptorily because court’s refusal challenges to hear for cause at side bar. The trial court denied having ruling, made such permitted challenges later for cause to be made at side bar. improper We found no exercise of the court’s discretion. Id.
Similarly, we are unable here to conclude that the isolat during ed instance voir dire which counsel was requested to challenge open for cause in court so mistaken an exercise as discretion to warrant are persuaded reversal. We not every juror unsuccessfully that challenged for cause is inevita bly against biased party asserting the challenge. the Nor are we that peremptory challenge convinced the subsequently ex pended against challenged juror been would have as had challenge serted been cause advanced at side bar open rather than in court. challenges
We are view for cause on based partiality bias or particularly should be asserted at side bar capital delay cases. The minimal inconvenience and entailed procedure clearly this undesirability are offset of a prospective juror knowing presence his on objectionable case, however, party. ruling one In this objects impact which defendant had the jury a minimal process appears juror, selection to one to be confined later challenged peremptorily by defendant. Under circumstanc es, ruling capacity we do not find that the had trial court’s deprive defendant aof fair trial.
2. Participation Counsel Voir Dire permit Defendant contends the trial court’s refusal to interrogate jury during defense counsel to voir dire was *13 28
prejudicial argues error. He our in that neither decision State (1969), Manley, l:8-3(a)4 should v. N.J. 259 nor Rule prohibit capital to in attorney-conducted construed voir dire cases. 259, Manley, supra,
In State v.
54 N.J.
defendant was
first-degree
appeal
indicted for
murder. On
from his conviction
murder,
second-degree
counsel
trial
defense
claimed
error
permit
propound
court’s
to
him
because
trial
refusal
questions during jury
concerning
prior
voir dire
defendant’s
conviction,
sustaining
criminal
In
the
this
conviction.
Court
l:8-3(a),
its
of
adoption
predecessor
announced
of Rule
jury
which was intended to return
control
voir dire to the
in
permit
trial court and vest
the trial
discretion
court
or
supplemental questioning
restrict
by counsel.
at 281-83.
Id.
Francis, writing
Court, expressed
Justice
for a unanimous
in no
terms
uncertain
the reason for the new rule:
many
long
longer
empanel
try
In
instances it
taken as
has
or
as to
impression
inescapable
longer
The
is
case.
that the aim of
is no
counsel
partial
jurors.
of unfit or
or
It
exclusion
biased
has become the
of a
selection
party’s point
through
as favorable to the
as
view indoctrination
questions
accomplish.
medium of
assumed
facts and rules of law can
(emphasis
original).]
at 281
in
[Id.
283,
Manley, supra,
holding
at
54 N.J.
we modified our
209,
Sullivan,
(1964),
den.,
v.
State
43 N.J.
239-40
cert.
564,
(1966),
penalty
U.S.
86 S.Ct.
29 l:8-3(a) persuade us that holding in Manley was intended to apply, apply, and should penalty death cases. We note also Appellate Division has expressly reject considered and ed the contentiоn that Manley, supra, State v. 54 is N.J. inapplicable capital Howard, cases. State N.J.Super. v. 192 (1983). 571 present
Our Court rule is intended to see that voir dire is conducted to the extent reasonably possible by the court. The given trial court permit discretion to supplement counsel to interrogation jurors court’s of by submitting questions to and, the court where the approves, by court personal additional questioning by R.1:8-3(a); counsel. See Manley, supra, 54 case, N.J. at 282-83. In following this customary practice, required the trial court counsel proposed to submit to it ques juror tions for the being interrogated. then The court then determined question whether or not the submitted would be propounded juror. to the No instances have been cited to demonstrate that the trial court abused its discretion in re fusing questions jurors. to allow
We reiterate our Williams, comments in State v. (1983), N.J. as to the desirability searching voir dire interrogation juror where bias is an issue. There we noted that dealing indeed means [a]n for with important, critical, and latent bias potential is the voir dire. The court should consider the of more exhaustive and efficacy searching conducting voir dire examinations. The court the voir dire should regarding to the of counsel particularly responsive the examination requests jurors as to prospective bias. potential (footnotes omitted).] [Id. at 68 Although in interrogation some instances the trial court’s general more searching requested and less than coun- sel, independent our review record reveals that scope overall and quality of the voir sufficiently dire was thorough probing and to assure impartial the selection of an jury. permit We hold that the trial court’s refusal to the voir interrogation dire to be conducted counsel was within the limits of our decision in Manley, supra, State N.J. l:8-3(a), because and Manley and Rule both the decision capital However, applicable are note that in Rule cases. we capital especially per- cases trial courts should be sensitive to mitting attorneys to conduct some dire. voir Hardship Excuse of Jurors
3. reject We also note defendant’s contention that the trial, length causing court “many trial overestimated working-class people” well-educated to ask to be excused *15 jury The trial from service. court on November 14 announced jury pool up that the probably go to the was trial “will ... until Accordingly, jurors the court Christmas.” trial excused those jobs might jeopardized personal whose or whose circum jury were period stances such service for an extended fact, hardship. jury occupied would be a financial voir dire 14, the week November the trial commenced on November 28, week, during Thanksgiving after a recess and lasted nine days, ending on December 8. is suggestion deliberately
There no that the trial court or unreasonably jury cognizable from a excluded service class of jurors rights, in violation of defendant’s sixth amendment see Co., 217, 221-25, Thiel v. Southern 328 Pac. U.S. 66 S.Ct. 986-88, 1181, 1185-87 (1946), 90 or L.Ed. that the selection procedure underrepresentation in a resulted substantial of a Partida, constitutionally cognizable group, see Castaneda v. 482, 494, 1272, 1280, 430 U.S. 97 S.Ct. L.Ed.2d (1977). Although length the trial court’s estimate of the of trial incorrect, proved to be it hardly inappro was unreasonable priate in view of State’s and the extended witness list the anticipated length dire. We find no error voir length in the attempt either trial court’s to estimate the of trial jurors or in its in determination to exclude unable to serve protracted trial. Publicity
B. and Venue undisputed pretrial publicity It that there was extensive concerning newspapers the in in Mon- defendant distributed County, particularly during mouth April May of 1983. A number of articles linked the to other defendant homicides and prior his page disclosed murder Front conviction. articles in Asbury the police Park included the photographs Press bodies, digging maps to locate gravesites, interviews with victims, families photographs the in defendant hand- Although concerning cuffs. articles appeared defendant with greatest frequency Press, in Asbury newspaper the Park widely County, significant read Monmouth there was also publicity Times, Ledger, Star The the Daily New York News, Post, (Bergen the New County), York Record Press, City Trentonian, (Mon- Daily Atlantic Register County), (Middlesex mouth County), the Hоme News and the Philadelphia Inquirer, as well as substantial radio and tele- publicity. vision prosecutor quoted regularly and seen in the news
reports of the case. He established a hotline to receive infor- mation press about defendant and the murders and held accompanied by reporters during conferences. He was alleged search bodies of defendant’s victims Staten Island, speaking press prosecu- New York. When with *16 tor repeatedly guilt assumed defendant’s and also stated that only pleasure. killed defendant for One article to the attributed prosecutor the that observation defendant had murdered Ole- siewicz and the others “he to because wanted see someone die” nights. on those 1983, May publicity
After about case subsided. generally the July change ground for a of defendant moved venue on the pretrial publicity unlikely that the made it he could extensive judge in County. assignment receive a fair trial Monmouth The change prejudice denied of motion without to its the venue time, adjourned the renewal at time of trial. At the same he September any the trial date for two months and barred further public the related concerning comment counsel case or other pending matters indictment.
32 Park Asbury Press day began, before the trial the page upcoming trial, a front featuring carried article the defendant, picture discussing prior of the his in conviction 1959 murder, prosecutor’s repeating for statements about lack of motive, linking five the defendant to area murders. There- after, press coverage voir dire and the trial contin- of the daily. A jurors reading newspaper ued few were observed of in jury assembly accounts the trial room before they voir dire. We note that the trial court instruct- were called jurors anything ed all not to read about case.
It right is axiomatic that a criminal defendant’s a fair to trial requires jury panel that he tried be before a not tainted Dowd, Irvin 717, 722, 81 S.Ct. prejudice. 1639, 366 U.S. 1642, 751, (1961). 6 L.Ed.2d 755 We emphasized have importance, particularly cases, capital trial court’s responsibility preserve integrity “to of and mini danger mize prejudice adjudicatory will infiltrate the Williams, supra, State v. process...” N.J. at 93 63. by widespread In criminal inflammatory cases attended management publicity, techniques various trial employed can right impartial jury assure the defendant’s to an is not compromised. option change One available is a in venue. protecting Other means rights the defendant’s constitutional examinations, voir dire searching include the use of the impan eling “foreign jurors” augment eligible pool jurors vicinage, adjournment date, in the of the trial and restraints on public by participants 3:14-2, -3; comments trial. R. Williams, supra, State v. 67-68; N.J. State v. Van 93 at Duyne, N.J. (1964), den., 987, cert. 380 U.S. 388-89 S.Ct. (1965). L.Ed.2d pretrial publicity preju- Defendant contends that the sowas change adequate dicial no relief of a short venue was assure a fair He therefore trial. maintains that denial of the *17 change motion to was an venue abuse discretion and de-
33 prived him of his right by impartial constitutional an trial jury. previously required
We a seeking change defendant venue to convincing proof establish “clear and that a fair impartial trial cannot be had county before a of the Wise, where the indictment was found.” State v. 59, 19 N.J. (1955). 73-74 The cases that followed Wise made clear few defendants succeeded in their efforts to establish a need to Belton, venue. See State v. change 103, 60 N.J. (1972); 107-08 Mayberry, State v. 413, (1968), N.J. cert. den., 52 420 393 U.S. 1043, 673, Gallicchio, (1969); S.Ct. State v. 89 21 L.Ed.2d 593 313, 318, 51 N.J. den., 912, cert. 233, U.S. S.Ct. L.Ed. 393 89 21 Ravenell, (1968); State v. 171, (1964), 2d 198 N.J. 43 180-81 den., cert. 982, 690, 379 U.S. 85 S.Ct. (1965). L.Ed.2d 13 572 Accordingly, capital in 1983 case we modified the defend burden, conferring ant’s on trial courts change the discretion to venue it is “necessary where to overcome the realistic likelihood Williams, v. prejudice pretrial from supra, State publicity.” 93 N.J. at 67-68 n. 13; Bey, see State v. 625, 630, 96 N.J. clarified, (1984). N.J. 97 666 determining prejudice whether a realistic likelihood of case, particular agree
existe in a recog we with the distinction nized the federal courts between cases in the trial which atmosphere corrupted is by publicity prejudice may so Maxwell, presumed, Sheppard 333, v. 352, U.S. S.Ct. 384 86 Texas, 1507, 1516, 600, (1966); 16 L.Ed.2d Estes v. 381 U.S. 614 532, 542-44, 1628, 1632-34, 85 S.Ct. 543, 14 L.Ed.2d 550-51 Louisiana, (1965); Turner v. 466, 472-73, 379 U.S. 85 S.Ct. Louisiana, 546, 549-50, 424, 13 L.Ed.2d (1965); Rideau v. 723, 727, 1417, 1419, 373 U.S. 83 S.Ct. 10 L.Ed.2d 665-66 States, (1963); Marshall v. 310, 312-13, United U.S. 1171, 1172-73, (1959) S.Ct. 3 L.Ed.2d curiam), (per extensive, pretrial publicity, and cases which while less intrusive, making the determinative issue the effect of actual Patton publicity impartiality jury panel. on the
34
Yount, 1025, 1032-35, 2885, 2889-91, 467 U.S. 104 81 S.Ct. 847, (1984); Florida, 282, L.Ed.2d 854-56 v. 432 Dobbert U.S. 301-03, 2290, 2302-03, 344, (1977); 97 S.Ct. 53 L.Ed.2d 361-62 Florida, 794, 800-03, Murphy 2031, v. 421 95 2036- U.S. S.Ct. 38, 589, (1975); Dowd, 44 supra, 595-97 Irvin v. 366 L.Ed.2d 723-28, 1642-46, 756-59; U.S. at 6 81 S.Ct. at at L.Ed.2d 181, 193-95, 599, California, Stroble v. 72 343 U.S. S.Ct. 872, 605-06, (1952); 96 L.Ed. Kemp, 882-83 see Coleman v. 778 1487, 1489 Cir.1985)(“There (11th F.2d are two standards which guide analysis question, of this prejudice’ the ‘actual standard — ‘presumed standard.”), den., prejudice’ and the cert. U.S. -, 2289, (1986). 106 90 S.Ct. L.Ed.2d 730 prejudice presumed
Illustrative of the in cases which is Louisiana, 723, supra, 1417, Rideau v. 373 83 10 U.S. S.Ct. 663, robbery, L.Ed.2d where the defendant’s confession of bank kidnapping, and murder was televised three occasions two months aby before was selected and seen substantial parish number residents in the where defendant was to be tried. The Court reversed the denial of defendant’s motion venue, change observing “[a]ny subsequent proceed- court ing in community pervasively exposed so spectacle to such a formality.” 726, 1419, could but a hollow at at Id. 83 S. Ct. 10 at L.Ed.2d 665. contrast, Florida, Murphy supra, 794, in v. 421 U.S. 95 2031, 589, defendant,
S.Ct.
44
L.Ed.2d
referred to
Surf,”
“Murph
national media as
notoriety
had attained
complicity
his
in
sapphire
the theft of the Star of India
from a
robbery prosecution
New York museum.
1970
His
in Dade
Florida,
County,
preceded by widespread
during
publicity
1969,
publicity largely
1968 and
but the
ceased seven months
before
selection. In rejecting defendant’s contention that
pretrial publicity
trial,
required
change
of the venue for
distinguished
publicity
Court
the intrusiveness of the
from
Rideau,
723,
supra,
1417,
found
373 U.S.
83 S.Ct.
663;
Maxwell,
333,
Sheppard
supra,
L.Ed.2d
384 U.S.
600;
Texas, supra,
and
16 L.Ed.2d
Estes v.
U.S.
S.Ct.
1628, 14
543. The Court observed:
85 S.Ct.
L.Ed.2d
lacking
proceedings
cases
in the
were
[those]
entirely
solemnity
to which a defendant
is entitled in a
that subscribes
any
sobriety
system
rejects
the verdict of a
cannot be made to
notion of fairness
mob. They
juror
to information about a state
stand for the
exposure
proposition
crime with which he is
defendant’s
convictions or to news accounts of'the
prior
*19
charged alone
the defendant of due
To resolve
presumptively deprives
process.
indications in the
of circum-
this
we must
to
case,
turn,
therefore,
any
totality
fair.
stances that
trial was not
petitioner’s
fundamentally
U.S.
S.Ct.
at
95
at
It has
noted that
been
jury.
necessarily preclude
impartial
the likelihood of an
does not
Williams,
supra,
in
v.
We observed
State
highly
cases the
reason to believe that even in
there is also some
publicized
to the
will contain
individuals who have not been exposed
publicity
venire
many
e.g.,
the case. See,
if
are
aware of the nature of
or who,
only faintly
exposed,
(D.C.Cir.1976)
Ehrlichman,
v.
546 F.2d
916-17 n. 8
[cert.
United States
910,
States
(1977)];
United
1155,
1120,
570
U.S.
S.Ct.
den., 429
97
51 L.Ed.2d
(D.C.Cir.1976)
sub nom.
61-63
den.
Haldeman,
[cert.
Mitchell v.
31,
559 F.2d
(1977)];
431 U.S.
S.Ct.
tion. should determine for itself whether stories are pretrial newspaper prejudicial, juror’s so or pervasive so of unaffected protestation reading unconvincing after so them doubtful a new trial impartiality should be ordered. N.J. at [43 386.] Jury 14, 1983, selection this case commenced on November days. ninety-five and continued for five consecutive A total jurors questioned, were of whom seven were excused personal court for forty-six jurors reasons. Of excused for cause, thirty-five familiarity indicated that their with the case ability would affect their impartially. serve Six of the forty-six were capi- excused because of their concerning views punishment, tal personal experiences four because of or rela- tionships and one because of discussions she overheard in the All jury room. challenges defendant’s for cause were de- prosecution nied. peremptory used six challenges, while *20 the defense used twenty peremptory challenges. all its Only juror, alternate, one an per- was seated after the defendant’s emptory challenges were exhausted. impaneled
The sixteen jurors, responding to the court’s inter- rogation, they indicated that had public- encountered little or no ity regarding the jurors case. Several of the trial stated that they had coming never heard of the defendant before to court. find segment We that a jury panel substantial subjected to voir unequivocally credibly dire demonstrated that the pretrial publicity passed by, had them and we are satisfied jury impaneled that was impartial. was as a whole above,
As governing noted the standard the trial court’s change change discretion on a venue motion is whether the is necessary to overcome the prejudice realistic likelihood of re- sulting pretrial publicity. from appears agree The dissent that there options are various available the trial court to venue, postponement of (e.g., change of dispel that likelihood order), dire, that the ultimate trial, foreign jurors, gag voir and its results. dispelled is the voir dire whether it was test of dispelled, the fact is contends it was not Although the dissent complaint appeal makes no about that defendant on this initial refusal to hear (except for the trial court’s dire voir attorney question- individual challenges at side bar and to allow rulings challenges his court’s ing jurors) or about the trial Assuming, discretionary. rulings highly are Those for cause. erroneous, plain nevertheless, application of the any was given the rule, totally inappropriate sponte, would be error sua Furthermore, ultimately impanelled. satisfactory jury that was counsel, previously moved who had court told defense the trial venue, entertain the motion that it would not change of dire; significantly no such motion was until after the voir impanelled jury must be that the The reason thereafter made. anyone who That did not include satisfactory. in fact was murders anything about other having previously read recalled juror who only impanelled conviction. prior or a murder murders, prior not the (of alleged prior but knowledge had such panel. Her voir dire conviction) on the heard it from others defense, for she apparently the trial court—and convinced is now made to objection no challenged for cause and serve disregard she heard and could what serving—that she her her, voir dire jurors whose Except for none impartially. on the actually served Appendix in the dissent’s excerpted jury- this case was contention that dispute do not defendant’s
We through- inflammatory publicity widespread and subject However, inde- our spring of 1983. region during the out impels tous voir dire record of review of the pendent *21 array was rela- portion of the significant that a conclude jurors impan- that the publicity and pretrial tively unexposed to jury. impartial trial a fair and eled constituted C. Prosecutorial Misconduct impartial
Defendant claims that he was denied an pretrial publicity as a result of the massive which included and encouraged inflammatory by by was statements made the Mon County prosecutor arranged mouth Prosecutor. The several briefings April, May in press during and June which he seeking discussed the murders for which he was to indict names, Biegenwald. prosecutor gave ages The ad and of guilt, dresses the victims. He assumed defendant’s motive, surrounding crimes, commented on his events portions Among prosecutor’s of the State’s evidence. state ments were that defendant committed the murders “because he nights; wanted see someone die” on those that defendant shot Ms. “for pleasure seeing die”; Olesiewicz the sheer of her Biegenwald and that a “perverted, sick individual.” On 29, 1983, July the trial court denied defendant’s motion to dismiss indictment on the prosecutorial basis of misconduct. Disciplinary Rule 7-107(A), (B) of the Code of Professional states, pertinent part: in Responsibility (A) lawyer participating investigation A in or associated with the of a participate extrajudicial making сriminal matter shall or not make an state- expects public ment that he disseminated means communicationand than does more state without elaboration: (1) public relating Information contained in a record to the matter. (2) investigation progress. That the is in (3) general scope investigation including description The of the of the and, law, permitted by identity offense if of the victim. (4) request apprehending suspect A for assistance in or assistance in other necessary matters and the information thereto. (5) warning public any dangers. A to the (B) lawyer prosecution A or firm law associated with the or defense of a participate making extrajudicial criminal matter shall not make ... or an person expect statement that a reasonable would to be disseminated means public communication and that relates to: (1) character, reputation, prior arrests, (including or criminal record accused____ indictments, crime) charges other or (6) Any opinion guilt accused, evidence, as or innocence of the the merits of the case.
39
7-107(B)(6)
held
Disciplinary
“pro
This Court has
that
Rule
attorney
ongoing
involved in
hibits an
an
criminal trial from
making extrajudicial
concerning
guilt
comments
or inno
quality
cence of a criminal defendant or the
of the evidence or
reasonably
the merits of the case when such remarks are ...
Rachmiel,
to interfere with a fair trial.”
90
likely
In re
N.J.
646,
(1982)
added).
(emphasis
disciplinary
657
The
rule creates
presumption
topics
a “rebuttable
that statements on these
are
reasonably likely
proceedings.”
(citing
to affect the
Id.
Chica
Bauer,
242,
(7th
go
Lawyers
Council
v.
522 F.2d
251
Cir.1975),
Cunningham
Chicago
cert. den. sub nom.
v.
Coun
912,
3201,
Lawyers,
cil
427
96
The State that the comments were they only ongoing missible because disclosed the results of an investigation. support, Disciplinary For it relies on Rule 7-107(A)(3), by which authorizes unelaborated statements a investigation prosecutor general scope as to of the in- “[t]he law, and, cluding description permitted by a of the offense if argument identity of the victim.” We find this to be specious inflammatory pretrial in the comments context by prosecutor prosecutor’s public in this state- case. pleas- ments that defendant murdered Olesiewicz “for the sheer seeing ure of her die” or “because he wanted to see someone night” hardly justified die that as disclosures warranted can “general scope investigation including descrip- by the offense____” 7-107(A)(3). Rather, such state- tion of the DR evidence, or clearly expressions opinion ments are on “the case,” proscribed by Discipli- unquestionably the merits of the one, 7-107(B)(6). Particularly in like this nary Rule a case publicity characterized feverish media interest and broad state, prosecutor are throughout such comments duty his to insure highly inappropriate and inconsistent with 388, Johnson, justice v. 65 N.J. is done. See State (1974); Farrell, (1972). v. 61 N.J. State State position our
We here reiterate firm as stated in Ramseur, supra, N.J. prosecutors capital special obligation justice have simply cases seek and to not convict, scrupulously and that we will conduct review falls *23 high short this standard: future, capital hereby Prosecutors in cases are the notice that in this Court possible special will not to on its hesitate refer motion violations of the own governing prosecutors appropriate ethical rules to the district ethics committee disciplinary legal profession action. are well aware We that within the prosecutor’s calling—to represent vigorously double the state’s interest in law help fairly enforcement at the and same time assure that the accused is treated justice uniquely challenging. challenge and that is done—is That is what prosecutor’s makes the mission a one such difficult and such an honorable one. prosecutor willing engage proscribed A to in obtain a conduct to a convictionin betrays capital only respects. case his oath in both its at Not does he scoff justice, represents poorly. than rather seek he also the state Because death is uniquely sanction, necessity readily harsh this Court of will more find prejudice resulting prosecutorial capital from misconduct in a case than in other matters; prosecutors seriously particularly criminаl who fail to take their stringent obligations capital strongly postponing, ethical cases thus risk and jeopardizing, even enforcement the law. We are confident that our
prosecutors equal challenge, ready to will this ethical but we also stand to required any remedy take whatever action is abuses. at [Id. 323-324.] However, “[pjrosecutorial ground misconduct is not for re of a versal criminal conviction unless the egre conduct was so gious deprived that it Id. at 322. defendant of fair trial.” strong disapproval statements, Despite prosecutor’s our of the we statements, persuaded are that occurring they April these as did in May 1983, did “substantially prejudice the defendant’s right fundamental to have a fairly evaluate the merits of his 5 Bucanis, State v. 26 N.J. cert. 45, 56, den., defense.” 357 U.S. S.Ct. L.Ed.2d (1958). As we noted in change motion, connection pretrial public with of venue ity June, subsided in July and the trial court’s 1983 order prosecutorial suggest 5Our references misconduct are not intended to adjudicated prosecutor. this part Court has an ethical offense on the of the only disciplinary proceedings. Issues of that kind can be determined Our appear conclusions are based on facts before us on this record and are only. limited to this case trial date adjourning the barring by counsel and statements impact mitigate adverse until November further served conclude, jury panel. We prosecutor’s comments on the dire, jury voir our careful review of the based on and the offending statements prosecutor’s interval between prejudicial effect and sufficient to dilute their actual trial was impartial jury. right by an preserve defendant’s to trial IV. Charge in Phase Doubt Guilt
Reasonable charge trial court’s next contends that the Defendant guilt beyond obligation to establish regarding prosecution’s reversible improper and constitutes a reasonable doubt was charge: following from the error. He focuses on the do mean reasonable doubt? What we basic very really very simple. expression *24 reasoning based on reason, processes. A reasonable doubt is a doubt argument on the any based Defendant does not construct implication to rest on the quoted language, apparently content any specific wrong. confronted with is somehow Not that it one. error, to manufacture not reach out claim of we will remiss, however, our not to caution were we We would be tendency to charge has a against using any courts trial duty or “trivialize the awesome of the to “understate[ ]” proved beyond a guilt was the defendant’s determine whether Ferreira, 373 Mass. v. reasonable doubt.” Commonwealth sug- 1264, (1977). Any instruction 116, 364 N.E.2d “simple” may run is concept of reasonable doubt gests that the decision seriousness of the detracting from both the the risk of degree of proof. Because and the State’s burden “[t]he law,” 364 criminal unique to the certainty required to convict is any lan- discourage the resort to 1273, we would N.E.2d at of the indispensable nature guage to minimize that tends Winship, 397 U.S. In re standard. See doubt” “reasonable 358, 364, 1068, 1072, 90 S.Ct. 25 L.Ed.2d (1970); Pine, United (3d Cir.1979). States 609 F.2d Turning Biegenwald’s specific error, they claims of are (1) charge “did not ask jurors whether had any minds,” (2) existing doubt in their “did ask whether or not jurors] given impartial had full and all consideration to [the evidence,” (3) upon “did not comment or evidence lack given by prosecution of evidence jury’s nor did it call the attention the same.” None contentions has merit. pertinent part charge the trial on court’s reasonable doubt was as follows: do we What mean a reasonable doubt? expression very really very simple. is basic and reason, A reasoning reasonable doubt a processes. is doubt based on A guesswork. reasonable doubt then is not a is doubt which based on It is not a doubt on a based hunch. It speculation. is not a doubt based some sort of idle possible It is not a mere doubt. proof beyond possible any
The test is not doubt. That is not the test. any doubt, imaginary you know, may everything life, It’s not because well suppose everything subject I possible imaginary in human affairs is to some doubt. That is not the test. proof beyond possible The test is not doubt. proof beyond The test is a reasonable doubt. require certainty, Benjamin The law does not absolute because as Franklin said, taxes, very things other than death and there are few in life that are certain, absolutely test, so that is not the reasonable doubt. beyond Proof reasonable doubt the test. What is a reasonable doubt? By way express concept, of other words to the same a reasonable doubt is an uncertainty guilt honest and reasonable toas of the defendant which exists your you given impartial minds after have consideration all full case____ the evidence in the *25 essence, thinking person a a it’s doubt which reasonable has after carefully weighing (Emphasis added.) all in evidence the case. standing Whereas alone the definition of reasonable doubt as reason, processes,” “a doubt based on reasoning might well inadequate, deemed conjunction when read in with the entire charge capacity jury. it had no Challenged to mislead the isolation; rather, portions jury charge of a not in must be read charge “the should be examined as whole determine its 420, (1973). Wilbely, overall effect.” State v. 63 N.J. portion charge quoted Included in the of the above is the court’s definition of doubt as an “honest and reason- reasonable uncertainty guilt as to the of the defendant in able which exists your you given impartial minds full after have considera- definition, coupled tion to all of the evidence the case.” This court, fully accurately with the additional comments of the apprised proof beyond of the State’s burden of challenged portion reasonable doubt. Read context the does not constitute error.
Proceeding
point,
to defendant’s next
we note that had the
charged
jurors,
trial court
as defendant contends was
required,
finding
guilt
that a
had to be
on the
based
absence
minds,”
“any
existing
doubt
in their
the instruction would
manifestly
tarry
point
have been
incorrect. We need not
on the
longer
repeat
principle
than to
a basic
of criminal law:
prosecution
beyond
must
all elements of the crime
establish
doubt, e.g.,
Winship, supra,
reasonable
In re
Defendant’s next that the court failed to instruct obligation give impartial on its “full and considera- evidence,” simply supported by tion to all the is the record. than the underscored One need look no further for refutation further, above; portion charge and if does look one one charge replete admonitions to the will find that the with jurors effect that the are to decide the case on the basis of all the evidence.
Finally, complains defendant of the trial court’s failure objection to have commented on the not made at evidence—an eligible appellate “unless it is trial and hence one not review producing clearly capable of such a nature as to been have *26 44 result,” unjust 2:10-2, is,
an “legal impropriety R. in the charge prejudicially affecting the rights substantial of the sufficiently grievous justify defendant and notice reviewing court and to convince the court that of itself the possessed error capacity bring unjust clear an about Hock, 526, (1969), den., result.” v. State 54 538 N.J. cert. 399 930, 2254, (1970) 90 26 (quoted U.S. S.Ct. L.Ed.2d 797 in State Latimore, 197, N.J.Super. v. 197 (App.Div.1984), 213 certif. den., (1985)). 101 328 In any N.J. event we know no authority—nor point does to any—standing defendant for the otherwise, principle, constitutional or compelled that a court is to make such comment. Roettger, See v. 22 N.J.Super. Stevens 64, (App.Div.1952)(“It elementary 66 judge that a trial is not obliged charge regard or matters comment with to the facts ”). case ...
The issue of the trial usually court’s comment on the evidence context, in a arises different in one which a argues defendant that the court should not have recited the facts of the case. those uniformly recognized situations our decisions have right evidence, of a trial court to comment on e.g., v. State Mayberry, supra, 439-40; Laws, 52 N.J. at State 50 N.J. 159, (1967), reargued, 494, den., 176-77 51 N.J. cert. 393 U.S. (1968), 89 21 S.Ct. L.Ed.2d 384 and “oftentimes” even so, duty supra, 439-40; Laws, to do Mayberry, atN.J. supra, however, Ordinarily, N.J. 176-77. trial courts com all, ment on only sparingly, evidence if at the better to assure that the ultimate jury. determination facts is made Arnold, Practice, L. Jersey See 32 New Criminal Practice and (2d 1980). Procedure ed. The rare situation which a § trial court exercises its discretion to delve into the facts is usually complex potential one which the evidenсe is or great; occurs, confusion is any and when situation com designed ment unduly influencing must be to avoid or other invading province case, jury. wise In this overly complex confusing, evidence was not and the trial court well within its choosing discretion in not to comment on the evidence. We find no error.
V. Sentencing Issues Jury A. Waiver
Biegenwald claims reversible error in the trial court’s denial of “defendant’s fundamental right constitutional by to trial jury” during sentencing proceeding the under the Act. He moved before the trial jury court to waive the in sentencing the trial, phase claiming of his that “the publicity generat- massive by precluded ed his trial” receiving his just a fair and sentence. (We point note that under this heading defendant does not “pretrial make a publicity” argument, which is made in another context. supra See 30-37.) at
Although signed defendant a written relinquishing waiver his right jury to a separate trial for the sentencing phase, the prosecutor non-jury refused to consent to a trial. Under the Act, required such consent is in order for defendant to waive sentencing by c(l) jury. Section of the Act states: sentencing proceeding The court shall conduct a separate to determine whether the defendant should be sentenced to death or to the pursuant of subsection b. of this provisions section. Where the defendant has been tried jury, proceeding judge a the by shall be conducted the who at the by presided jury guilt trial and before the which determined the defendant’s for that, except good discharge jury proceeding cause, the court that and conduct may the jury before a proceeding. for the of the empaneled Where the purpose guilty jury, defendant has entered a or has been tried plea without a the proceeding judge shall be conducted who defendant’s accepted plea guilt jury or who determined the defendant’s and before a for the empaneled proceeding. of the defendant and with consent On motion of the purpose prosecuting attorney may proceeding the court conduct a without a
jury. added.) (Emphasis addition, l:8-l(a) In specifically requires Rule the consent of prosecutor as a condition jury to a defendant’s waiver of a sentencing phase penalty proceedings. death stated prosecutor’s reason was that a had trial, guilt, defendant’s had and was
witnessed determined his case, familiar intimately with the facts would determine, evidence, position to basis best on the whether prerequisites imposition penalty the factual of the death had been established. denying non-jury sentencing defendant’s motion for a
proceeding, prosecutor the trial court if observed even consented, the had court would have acceded to the waiver. position this The court’s “basic reason” for was belief that in a capital sentencing prefer- the collective wisdom of single judge.6 able to a determination appeal argues this On defendant the sen because tencing phase “separate ], is a and distinct proceeding[ criminal must right a defendant be afforded constitutional to waive a *28 trial, jury right subject rejection which to the unilateral prosecuting of a attorney.” opportunity prosecutorial The for trial, jury defendant, veto of the waiver of claims violates his right jury, by necessity “constitutional to trial which of embod consequential right protection”—a protec ies the waive to this “long tion established for He does benefit.” so [defendant’s] providing any authority without for the proposition he has right jury. a waive a to disagree
We
with
sixth
claims.
defendant’s
amendment
The
States,
case
clear on
In Singer
law is
this matter.
v. United
24,
783,
(1965), involving
380
85
U.S.
S.Ct.
47 urged by defendant: provisions this constitutional relating jury protection accused,” to trial are “for the of the right jury” gives that his “unconditional ... to a trial right rise to “a correlative to his by judge have case decided a if alone he considers such advantage.” a trial to be to his Id. at 25-26, 785, at 85 13 S.Ct. L.Ed.2d at 632-33. Specifically, petitioner challenged 23(a) Rule of the Federal Rules of Civil which, Procedure, l:8-l(a), like our Rule called for consent government of the approval and the of the court before defend jury ant’s recognized. 24, waiver of trial could be Id. at 85 783, Supreme S.Ct. at at The L.Ed.2d 632. Court concluded that “the recognizes right Constitution neither confers nor a criminal defendants to have cases judge their tried before a alone,” 785, 633, id. at at S.Ct. L.Ed.2d at and hence calling government’s Federal Rule for the consent and the approval procedure court’s “sets forth governing a reasonable attempted jury waivers trials.” Id.
In the
opinion
course
his
Singer,
Court in
Chief
Justice
English
Warren reviewed the
common law of trial
jury,
experience,
the colonial
and the
judi
Constitution
its
27-34,
cial interpretations.
786-90,
Id. at
by Constitution him. very [Id. S.Ct. L.Ed.2d at 85 at 13 at 36, 790, 638.] adopted position Belton, This Court has the same State supra, against 60 “The N.J. 103: restriction a unilateral waiver
48 by presents the accused no of trial constitutional infirmi States, (citing Singer ty.” supra, Id. at 110 v. United 380 U.S. 24, 783, 633). 13 85 S.Ct. L.Ed.2d Supreme recently
The United States Court has that in held capital sentencing judge whether a or jury shall make the may ultimate decision be determined state statute. Florida, 447, 3154, Spaziano v. 468 U.S. 104 82 S.Ct. L.Ed.2d (1984), Supreme 340 the Court capital reviewed Florida’s sen statute, tencing permits which trial court to override a jury’s imprisonment. recommendation for life The Court ad “capital dressed of sentencing the issue whether the decision is that, cases, 458, one in all should be made a jury,” id. at 104 3161, 351, at at recognized S.Ct. L.Ed.2d Court “despite unique aspects, capital sentencing pro fact its ceeding involves the any same fundamental issue involved in sentencing proceeding—a other of appropri determination punishment 459, imposed ate to be on an individual.” Id. at 3161, 82 S.Ct. at L.Ed.2d at 352. indicated,
As the Court primary question not should decision, sentencing who makes but how that decision is sentencer, judge made: whether jury, or has a constitu “[t]he obligation unique tional to evaluate the circumstances defendant____” individual Id. at at S.Ct. added). (emphasis L.Ed.2d at 351 The Act meets that obli gation. c(5)(h). See Sec. We can find no constitutional infirmi ty in give right its decision not to a defendant an automatic non-jury insist on a sentencing determination issues. c(4)(c) Aggravating Applied B. Factor as to Defendant any While defendant does claim error the court’s charge c(4)(c) aggravating (“[t]he factor murder was out- vile, rageously wantonly or inhuman in horrible it torture, mind, depravity aggravated battery involved or an victim”), our we treat the issue on own motion because potential importance its in other cases. *30 trial quoted
The court first the factor. Based our construction, the trial quote court should not the statute since part of the initial it no serves function under our definition. Ramseur, supra, at 211. It serve See State N.J. will only to confuse jury the to tell it it that must find that the vile, “outrageously murder was or wantonly horrible inhu or man,” and then jury disregard portion later instruct the to that purpose the factor. There in explaining why is no portion this first of the is purposes. statute irrelevant for its Mentioning it can only cause confusion. statute, quoting noting
After by court continued although every vile, may ain certain sense murder be viewed as horrible or inhuman, aggravating that doesn’t mean that there is an automatic factor in every Legislature something by making case murder. The had more in mind aggravating necessary that an factor. What to exist is that the attack victim, Olesiewicz, defendant on Anna involved either torture conduct or indicating depraved savagely outrageously mind or that the attack sowas violent, adjectives wantonly, cruel or that the vile or horrible or are inhuman justified. entirety That was the of the court’s instructions on this aggravating charge. factor in jury, quite predict- its main The time, ably, deliberating very after short to the returned request “re-explain courtroom with the that the court Part Two factors, aggravating of the interpretation, clearer com- because confusing.” referring mas are obviously The aggravating c(4)(c). factor is the be- colloquy What follows tween the court jury: and the question you Re-explain part THE COURT: sent out is of the this: two factors,
aggravating interpretation, confusing. clearer because commas are gather you’re looking I at number two on verdict sheet? put Legislature. were The commas in there you just I want know that. way Legislature you legislative gave That’s it to defined it and language. commas, disjunctive. are the it’s what sense all in the there, outrageously “or” is in vile or The word that murder was wanton or inhuman, torture, depravity horrible in that involved or of mind or an it battery aggravated to the victim. interpolate English you what for the That’s I think can under Grammar commas, problem may you give what can me— is that was the heart *31 THE The torture, FOEELADY: also does the was, depravity question things aggravated mind and do one of those three have apply? battery, any That’s the point. one of the three?
THE COUET: Any THE FOEELADY: Yes. aggrava- THE If it involved either torture or of mind or COUET: depravity English reading ted is that—I think that’s a correct of what battery legislature wrote. disjunctive.
It’s
As I one of those. say, any THE FOEELADY: O.K. confusing, THE If it’s still COUET: to extract what is the heart of the try and to it to me in a definite confusion, put question. THE O.K. FOEELADY: jury only reasonably It this is obvious that knew that which a intelligent person gather reading part would from this statute, that, decidedly, enough guide anyone’s is not discretion in this decision. Godfrey Georgia, See 446 U.S. 420, 429, 1759, 1765, (1980). S.Ct. L.Ed.2d 406-07 impact charge regard The total of the trial court’s in this was to jury portion unexplained. leave the with this of the statute As Ramseur, 198-199, supra, we stated in at State v. N.J. c(4)(c) standing completely Section alone fails to channel the jury’s impermissibly vague. discretion and is charge relatively simple
What was needed was a
that directed
e(4)(c)
jury
only
to consider
Section
of the statute as we
construe that
Ramseur,
section
supra,
State v.
involved of mind.” In order to find involved that the depravity depravity must find that defendant killed his victim without mind, you any purpose meaning killing because he had no reason for Ms. Olesiewicz other than wanting to kill. These instructions should also direct the to consider all the circumstances of the in determining murder the defendant’s intent, because a defendant may not state his or her motive for killing. charge here failed to conform this section of the statute
with constitutional requirements, and this failure would be reversible error had it been raised either at trial or appeal. sentencing Since the proceedings event, are to be retried in any whether, we need not despite failure, decide such the matter would be reversed on our own motion because of this error. decide, however, that,
What we do
contrary to our dissent
ing colleague’s assertion, on
sentencing
retrial of the
proceed
*32
ings the State should
not be foreclosed
considerations of
jeopardy
double
arguing
from
the existence of aggravating
c(4)(c).
factor
jury
permitted
should be
to consider that
aggravating factor to the extent that it includes as one of its
elements “depravity of mind”
today.
as we have defined it
And
only to
agree
that extent: we
that
the State will not be
permitted
argue
to
that the
finding
evidence warrants a
“aggravated
either an
battery” or “torture” of the victim
requirement
c(4)(c),
satisfied the
of
already
we have
deter
mined that under a correct view of these factors the evidence
go
jury.
was insufficient to
to the
To allow the State another
opportunity
produce
“aggravated
to
battery”
evidence of an
or
“torture” that it failed to
original proceedings
muster at the
would run counter to
jeopardy principles.
fundamental double
309,
Tropea,
(1978)
See
v.
(citing
State
78 N.J.
316
Burks v.
States,
1,
2141,
(1978),
United
437
98
U.S.
S.Ct.
That say, is not to jury that on retrial the should not be entitled to consider whether there is sufficient evidence “depravity of of justify imposition mind” to of the death sen- c(4)(c). tence based on Although that element of the State’s argument may Biegenwald’s have focused on commission anof “aggravated battery,” charged—and trial court at request c(4)(c), jury’s recharged—that satisfy only to order conditions, torture, namely, depravity mind, one of these aggravated battery, an to jury had exist. The concluded that aggravating c(4)(c), c(4)(a), factor as well as had been estab- beyond doubt; lished a reasonable but verdict does not c(4)(c) reveal which feature or combination of features of accepted. may It well have concluded “depravity demonstrated, so, mind” had been but if it reached that conclu- improper charge. sion on the basis of an As we have demon- strated, c(4)(c) the trial court’s instructions on did not meet our aggravating formulation of that factor.
The evidence of at “depravity mind” defendant’s trial was permit instruction, such jury finding, as under correct that the State had demonstrated that discrete element of the aggravating factor. We suspect “depravi- that the evidence of ty” sentencing hearing same, at new bewill but point course it need not be. The that the should be assess, permitted to instruction, under a correct whether “de- pravity” has Supreme been shown. The United States Court recently has held reviewing the Double Clause does not court, if it Jeopardy require sustains claim the evidence was as a matter of law [the] [that insufficient support aggravating circumstances on which death defendant’s sentence was based],
ignore supporting aggravating evidence in the record another circumstance rejected. which the sentencer has erroneously [Poland Arizona, 106 S.Ct. U.S.-,-, 1749, 1756, L.Ed.2d *33 (1986).] 123, This does rejection aggravating case not involve of an factor jury factor; here, a aby followed retrial of retrial will be on a factor that the found exist. The defendant cannot complain that the fact-finder will given opportunity the make determination its under correct instructions: We con- jeopardy clude that double considerations will not bar defend- exposure ant’s to a death sentence at the retrial the of sentenc- ing phase of the case. Weighing Aggravating
C. Mitigating Factors defendant
While did not raise the issue either at trial or on appeal, find that the we trial court’s instructions in the sentencing proceeding plain constituted error of nature to a our sponte. Grunow, warrant consideration sua State v. See 133, (1986) (even 102 N.J. 148-49 of objection, absence court must principles case); instruct on fundamental that control Federico, (1986) State v. (obligation N.J. extends charge to proper proof). State’s burden of con error the jury’s balancing aggravating cerns function in factors against factors, mitigating directly a function that leads to its ultimate life or death decision. Its effect was to allow a death sentence without a finding aggravating that the factors out weighed mitigating beyond factors a reasonable doubt. We finding required by hold that such the Act at the time of defendant’s trial as a matter of fundamental fairness and that its absence penalty mandates reversal and retrial of the deci Legislative policy result, sion. also mandates this as indicated Act; amendments, the 1985 amendments those fur thermore, provide independent an basis for this result. penalty phase,
At prosecutor sought to establish two aggravating previously factors: defendant has been “[t]he murder,” c(4)(a), of convicted Sec. and that murder was “[t]he vile, outrageously wantonly horrible or inhuman that it torture, mind, depravity аggravated involved or an battery to victim,” c(4)(c). support factors, Sec. of those prosecutor copy submitted certified con- the 1959 murder viction of jury, defendant7 asked the based on the testimo- convictions, "prior especially being appeal 7Defendant’s assertion that those ed are not allowable Into evidence” meritless. Evidence of a defendant's prior sentencing murder convictions is admissible at to establish existence c(4)(a), aggravating prior of Section factor based on such murder convic Supreme upheld constitutionality tions. The United States Court has prior which, c(4)(a), guide statutes like Section use allow the convictions to See, sentencing penalty e.g., Stephens, decisions in death cases. Zant v. 462 U.S. 862, 886, 2733, 2747, (1983); Gregg Georgia, 103 S.Ct. 77 LEd.2d 255-56 *34 ny guilt phase, at the to consider the murder outrageously or vile, horrible, wantonly or inhuman it involved an aggravated battery to the victim. sought (1)
Defendant mitigating establish three factors: that defendant was under the influence of extreme mental or disturbance, c(5)(a); (2) emotional capacity Sec. that defendant’s appreciate wrongfulness of his conduct or to conform his requirements conduct to the significantly law was im- paired as the intoxication, result of mental disease or defect or c(5)(d); (3) mitigating Sec. that other factors existed rela- record, tive to the defendant’s character or or to the circum- offense, c(5)(h). stances of the Sec. To substantiate those factors, presented the defense psychiatrist forensic who testi- although fied that Beigenwald insane, was not legally he suf- fered from a personality severe disorder known as anti-social personality paranoid with traits. instructions,
In its charged the court respect with to bal- ancing aggravating mitigating factors: you aggravating exists, proven If find at least one factor and it has been doubt, beyond you’re mitigating a reasonable and also satisfied that a factor exists, you yes, factor, aggravating yes, so will check on at least one on at least factor, mitigating you weigh one represented by and then must the value that is mitigating factors, one, two, three, is, against factor or whatever it represented by aggravating you checked, value each factor that and check on your judgment aggravating
the verdict sheet whether in
each
is or is
factor
153,
9, 193-95,
2909,
9, 2934-36,
859,
428 U.S.
165 n.
96 S.Ct.
2921 n.
49 L.Ed.2d
9,
(1976);
Florida,
242,
6, 251,
870 n.
428 U.S.
248 n.
96 S.Ct.
Proffitt
2960,
6, 2966,
913,
6,
(1976).
2965 n.
49 L.Ed.2d
921 n.
At the time of
prior
being appealed
defendant's trial
murder convictions still
were inadmissi-
c(4)(a),
Biegenwald,
318;
supra,
ble under Section
State v.
96 N.J.
477 A.2d
Bey, supra,
effectively
State v.
VERDICT FORM AGGRAVATING FACTORS DO YOU UNANIMOUSLY FIND BEYOND A REASONABLE OF THE DOUBT THAT ANY FOLLOWING AGGRAVATING FAC- (CHECK ANSWER.) TORS APPROPRIATE EXIST? defendant, Beigenwald
1. That has Richard Yes_ No_ previously been convicted оf murder. outrageously 2. That this murder was or wan- vile, tonly or it in- horrible inhuman torture, mind, depravity ag- an volved Yes_ No_ gravated battery to the victim. ‘NO’, IF ALL THE ABOVE ARE NO OF CHECKED PROCEED BUT RETURN THIS VERDICT SHEET TO THE COURT FURTHER IN THE BY YOUR AS YOUR VERDICT CASE SIGNED FORELADY.
Forelady MITIGATING FACTORS DO FIND THAT THE EXIST YOU UNANIMOUSLY FOLLOWING (CHECK ANSWER.) FACTORS? AS MITIGATING APPROPRIATE presumably (rather "mitigating 8The court intended to refer here to factors” factors”). "aggravating charge than slip. The balance clarifies defendant, Beigenwald, 1. Richard was un- der the influence of extreme mental or emo- tional insufficient disturbance constitute a Yes_ No_ prosecution. defense to capacity appreciate 2. The defendant’s wrongfulness of his conduct or to conform his requirements conduct to the of the law was significantly impaired as the result of mental degree defect disease or but to a suffi- Yes_ No_ prosecution. cient to constitute a defense to Any 3. other factor which is relevant to the defendant’s character or record or to the cir- Yes_ cumstances of the offense. No *36 IF YOU HAVE AT CHECKED LEAST ONE AGGRAVATING FAC- TOR ‘YES’ AND HAVE CHECKED ALL THE OF ABOVE MITIGAT- ING FACTORS ‘NO’ PROCEED NO FURTHER BUT RETURN THIS THE VERDICT SHEET TO COURT AS YOUR VERDICT IN THE CASE, BY THE THE SIGNED FORELADY. PENALTY WILL THEN BE DEATH.
Forelady MORE IF YOU HAVE CHECKED ONE OR AGGRAVATING FAC- ‘YES’, ‘YES’ AND ONE OR MORE MITIGATING FACTORS TORS THEN STATE AS TO EACH AGGRAVATING FACTOR CHECKED ‘YES’ IT IS OR IS NOT BY ANY ONE WHETHER OUTWEIGHED OR COMBINATION OF ANY OF THE MITIGATING FACTORS THIS BE CHECKED ‘YES’. DECISION ALSO MUST UNANIMOUS. IF AN AGGRAVATING FACTOR IS FOUND AND NOT OUT- FACTORS, BY THE PENALTY BE WEIGHED MITIGATING WILL DEATH. #1, IS, (SELECT FACTOR IS NOT ONE AND AGGRAVATING CIR- IT) FACTOR(S). BY THE CLE OUTWEIGHED MITIGATING #2, IS, (SELECT IS ONE AND CIR- AGGRAVATING FACTOR NOT FACTOR(S). IT) BY OUTWEIGHED THE MITIGATING CLE
Forelady Although the court did not possibility mention the mitigating aggravating being factors in equipoise, clear its conclusion from statement aggravating factors must be outweighed in order for a imprisonment sentence of life to be imposed was that if aggravating mitigating factors were equal weight, penalty addition, would be death. neither the court nor the verdict form jury instructed the that for the death penalty imposed, prove the State must requisite beyond balance a reasonable doubt. returning guidance
After twice to seek further from the court, beyond found a reasonable doubt both aggravating factors existed. respect With mitigating factors, the jury did not find defendant was under the disturbance, influence of extreme mental or emotional Sec. c(5)(a), did find capacity appreciate wrongful- but that his ness of his conduct or to require- conform his conduct to the significantly ments the law was impaired as a result of defect, c(5)(d). mental disease or Sec. also found as a mitigating unspecified factor that another factor existed rele- vant to the defendant’s character record or to the circum- c(5)(h). stances the offense. Sec. The jury concluded that aggravating neither outweighed factor was combined mitigating factors.9 *37 jury weigh aggravat- 9The trial court instructed it the that was to each of the ing against mitigating judges factors of all the factors. trial read Other have requiring aggravating weighed against the as statute that all factors were to be mitigating example, jury all factors. For trial so the court instructed the Ramseur, State Act supra, to the amendment 106 N.J. at The 1985 317. sought ‘‘[cjlarify aggravating any mitigating outweigh that the factors must imposed.” Purpose factors in order for a death sentence to be Stat. of to S.950 statute, (Nov. 1984). 1985, clearly requires at 2 The as amended in that all aggravating against mitigating are factors to be balanced all Sec. factors. c(3)(a) (b). 1986, passed by pending and A bill introduced in the and Senate Assembly, provides specifically jury weigh the even more that the must "the aggravating against sum total all of the "the sum total factors” of all mitigating imposed. factors" before a verdict of death shall be at 3 S.1680 (Feb. 10, 1986). Although incorrectly charged jury trial the court the that it weigh factors, aggravating against mitigating
was to each factor note all we language, trial, The as it relevant existed at the time of the c(3): found in Section jury, jury, special setting if there is The no the court shall return a verdict writing aggravating forth in the existence or nonexistence of each of the mitigating (4) paragraphs (5) any factors set forth in of this subsection. If aggravating exist, factor is found to the verdict shall also state whether it is or outweighed by any mitigating is not one or more factors. (a) jury any aggravating If the or the court finds that factor exists and is not outweighed by factors, mitigating one or more the court shall sentence the defendant to death. (b) jury exist, aggravating If the or the court finds that no factors or that any aggravating outweighed by mitigating factors which exist are one or more
factors, pursuant the court shall sentence the defendant to subsection b. Act, provision c(2), Another provides the Section State “the establishing beyond has burden of a reasonable any aggravating factors,” doubt the existence of and that defendant has “the producing burden of evidence of the exist- factors____” any mitigating encе of Act, form, original in its nothing said about the burden proof in weighing process. charge The trial court’s original wording. Nevertheless, conforms to Act’s reading literal subject has been the example, criticism. For report the initial Judges’ of the Trial Capital Committee on Causes, Ramseur, see State v. supra, 106 N.J. at 155 n. called charge a that imposed on the State a proving burden of result of the balancing process beyond doubt, a reasonable although the Act was silent in regard.10 That conclusion particular obviously prejudice error did not the defendant. On the contrary, it favored him. Judges’ sharply 10That Committee was divided over whether the must factors, aggravating outweighed mitigating also find that the factors even though standard, clearly namely, the statute set forth a different that the aggravating outweighed by mitigating must find that the factors are not majority agreed part factors. The with the trial court in this of the formula tion, disagreed "beyond but with its omission of the a reasonable doubt" above, only "beyond burden. As noted we have concluded not that the construed, applies, properly reasonable doubt" burden but that the Act calls for finding aggravating outweigh mitigating that the factors factors.
59 was presumably based on New Jersey’s traditional concern for rights charged defendants capital with offenses. Jersey always required proof beyond
New has a reasonable See, Bess, prosecutions. supra, doubt in criminal e.g., State v. 18; 348, (1958) Emery, (quasi- 53 at 353 N.J. State 27 N.J. driving proceeding requires proof beyond criminal drunk doubt). requirement any suggestion reasonable That antedates compels Winship, the Constitution that burden. In re 358, 1068, 368; 90 supra, 397 U.S. S. Ct. 25 L.Ed.2d see Mulla Wilbur, 684, 1881, 44 ney v. U.S. 95 S.Ct. L.Ed.2d 508 (1975). approach language statutory We thus this with a state, long-standing practice in the criminal law of this practice quite different from the terms of the statute.
Our construction of the statute is based to some extent on similarity functional aggravating factors weigh and the ing process itself to proof the traditional of “elements of an offense.” The burden is firmly fixed in this state where an element of an offense is involved: The State has the burden to prove that “beyond element a reasonable doubt.” N.J.S.A. 2C:l-13a. We note that in some other “aggravating states factors” are capital crime, elements of the during guilt phase of trial prove the State beyond must a reasonable doubt the existence of one or more aggravating factors before the defendant “death-eligible.” See, becomes e.g., Silhan, State v. 223, (1981). N.C. 275 S.E.2d Technically, of course, penalty imposed the death part is as sentencing proceeding, and ordinary analysis, under the State need not prove its contentions at sentencing proceeding beyond a doubt, reasonable even those statutorily prescribed. that are U.S.-, -, See McMillan v. Pennsylvania, 106 S. Ct. 2411, 2415-19, (1986) (where 91 L.Ed.2d legislature 74-79 provided mandatory possession firearm, sentence for visible only prove possession State need by preponderance of evidence and there is not process possession denial of due when statutorily consideration). Here, sentencing defined as a how-
60 ever, sentencing proceeding the calls a different treatment different,” Ohio, “profoundly because death is v. 438 Lockett 605, 586, 2954, 2965, 973, (1978) 98 57 990 U.S. S.Ct. L.Ed.2d opinion), consequences in of its (plurality both terms and be scheme, procedurally unique sentencing a cause it is see Bull 438, 1852, 1857, Missouri, ington 68 U.S. S.Ct. (1981). statutory requirement 2d The the L.Ed. that prove aggravating beyond State a must factors reasonable though proof part sentencing is likewise of a doubt—even proceeding—is Legislature’s appreciation some indication of the difference, probable impose of that of its to the and intention weighing process Legislature, same burden on the itself. in recognizing equivalence by requiring proof this functional factor, beyond any aggravating a reasonable doubt of demon appropriateness attaching strated the of protective require the ordinarily guilt ments confined to the determination of the to sentencing proceeding may analogous well. There as deter by judge, great import, governed minations made a that are doubt,” “beyond see, a that is e.g., standard not a reasonable 2C:43-6b; Jersey, N.J.S.A. in but New where the is charged making judgment, with that value a determination desрite death justness reasonable doubt as its would be judgment any jury unthinkable. We can think of no in this state in any strong requirement case that has as a claim to the as certainty does this one. thing impose
It beyond is one this proof, burden of doubt, question; reasonable where the is silent the statute it require aggravating another to State prove the that the outweigh factors mitigating provides, the factors when the Act quite clearly, prove aggravating that the must State that the outweighed by mitigating factors are not factors. The two only formulations differ in result finds when aggravating mitigating equipoise. factors factors If are prove aggravating the State must outweigh factors factors, mitigating equipoise then will not result in a death sentence; prove aggravating if the State must that the factors outweighed by factors, are the mitigating equipoise then does result in a death sentence. single point That on this shifting balance between aggravating mitigating factors may make the difference between life and death. More than that, we phrasing believe that question is more disadvantageous to the suggested by defendant than is logical analysis wherein only difference results where the equipoise.” factors are “in It is very change not a substantial juror’s required mind that is “you find, to transform must doubt, beyond a aggravating reasonable factors are *40 outweighed by mitigating find, not the “you factors” to must doubt, beyond a mitigating reasonable that the factors out- weigh aggravating the factors.” potential
This for brings strongest confusion11 us to the interpreting for require prove, reason the Act to the to State Causes, report Judges’ Capital 11The supra, initial on Committee confusion, test,” potential illustrates of this awareness and the ”restat[ed] in its Judges original report, 1982), Capital (September Bench for Manual Cases at 69 penalty imposed jury beyond ”[T]he as follows: death is if the is convinced a aggravating outweigh mitigating reasonable the doubt that either the factors weight aggravating mitigating or that the the and the factors factors factors added.) equal" (Emphasis given proposed are The same is the formulation in charge suggested jury potential to the that Committee. Id. at 70-71. The confusion, however, proposed for is nowhere better than the illustrated in special question jury you verdict in the where form Manual the for the is: "Are beyond mitigating outweigh convinced a reasonable doubt that the factor[s] the _ _." aggravating Please check one. No factor[s]. Yes The Bench charge, provides: Manual, proposed "Notice referring in the verdict sheet its to asked, your you mitigating sheet verdict are ‘Do the factors or factor outweigh aggravating the factors factor?1 You must check “Yes’or ‘No.’ you only beyond ‘No’ a Check if are convinced reasonable doubt that the aggravating outweigh[s] mitigating aggravat factor[s] the or that the factor[s] ing mitigating equal weight.” and factors are of at 71. This Id. statement from proposed charge purporting explain question the to the on the verdict sheet directly contradicts it. It would unclear a was whether defendant sentenced although mitigating jury, believing the to death because the factors outweighed beyond aggravating, of this a reasonable convinced provided required doubt—whereas the law that all that was to avoid death was aggravating mitigating outweigh though find the factors even beyond doubt, aggravating reasonable that the factors out weigh mitigating. proceeding imperative In no is it more be assured that the outcome is fair than these cases. It is difficult Legislature thought to believe that the it fundamental ly fair that a except mitigat defendant be executed where the ing factors outweigh aggravating; concept executing explanations (the him where the for his misconduct mitigating factors) equally significant were culpable aspects as as the (the factors) that misconduct aggravating foreign is to what the Legislature certainly would speak intend. We here about the judgment, ultimate value question death, the ultimate of life or for while the formulation “beyond is terms of a reasonable doubt,” and appropriately applicable therefore fact-finding, weighing process really fact-finding is not at all but a judgmental jury, determination conflicting based on values, of whether dеfendant should live or die. Barclay See Florida, 939, 950, 3418, 3425, 463 U.S. 103 S.Ct. 77 L.Ed.2d (1983) (“It (plurality opinion) entirely fitting moral, factual, legal judgment judges juries play meaningful sentencing.”). role in anywhere If in the criminal law a doubt, defendant is entitled to the benefit of the it is here. We therefore hold that as a matter of fundamental fairness the aggravating must find that factors outweigh *41 factors, mitigating and this beyond balance must be found a reasonable doubt.
There persuasive legislative is history position for the that Legislature, the despite statutory language, the intended to greatest the subsequent would have the doubt about the conclusion. All proposed special particular verdict sheets eliminated that confusion. Capital The Committee on Causes made it clear in its first revision to the Judge’s (Jan. 1983) Capital Bench Manual for Cases that its conclusion requiring "beyond charge majority a a reasonable doubt" was a view and that judges disagreed independent judgment"; who should follow their "own it also minority disagreed interpretation indicated that a vocal with the that allowed imposed aggravating mitigating equi- death to be where and factors were in poise. Id. at 72. require aggravating that outweigh mitigating factors factors penalty public the death could At imposed. hearing before be a Committee, Stier, Judiciary the Senate before Edwin then Di- of rector of the Division Criminal the Department Justice in of Safety, concerning Law and Public testified Senate Bill 112 20,1982) (the (May Act). bill that led to the enactment the It questioning is clear from the that the was looking Committee to analysis Stier guidance Mr. both and that his views highly regarded. were suggestions Numerous he made were adopted by point question the Committee. At a when the of the proof aggravating mitigating burden factors was being discussed, Stier, having Mr. suggested that the Bill’s original requirement mitigating that “by factors be established eliminated, preponderance asked, the a evidence” be was “Basically, you you replaced have eliminated that. Have it with anything? not, If is the trial judge sitting what test? The is asking there and he response himself.” Mr. Stier’s was: What we have tried is to establish to do the State’s burden a beyond reasonable aggravating outweigh mitigating to to doubt, establish sufficient factors which exist. The mitigating defendant has no burden of those proof factors added.) (Emphasis factors. That is what we intended to do with this. “Now, Shortly following question posed: thereafter the is, aggravating outweigh ultimate test do the factors the miti- gating. point raising I raise I am just now make sure we judge may don’t have that as some trial confused as we that, lawyers I saying, they here ‘What do intend?’ raise Ed [Stier], you any spell if because I want know see need to it anymore?” responded: out Mr. Stier At this I I I here can’t do. think what we have is a situation in point, say according proceeding which the drafted the bill is would as way proceed aggravating follows: have to find factors would any beyond those reasonable doubt. would have to find factors Factually they beyond weigh aggravating then reasonable doubt. would those factors And, they aggravating against mitigating if And, factors. they found outweigh mitigating factors, the death penalty. would impose factors they added.) (Emphasis it would occur. is how Procedurally, interpretation original of the Act to version require outweigh mitigating aggravating that the factors *42 strongly supported by a reasonable doubt is also
beyond amendment, recently passed L. c.178. The initial state- accompanying Bill by ment Senate introduced Senator Legislature, says: the 1984 session of Russo “This bill is clarify procedural aspects capital intended to several punishment are statute. Those as follows: ... clarifications clarify aggravating 5. outweigh any mitigat- that factors must ing imposed.” factors in order for a death sentence to be (March 1, 1984) added). (emphasis S.Stat. to S.950 at The Bill required proven beyond also that the balance be a reasonable Legislature doubt. This statement of intent it is that “clarifying” previous obviously is dispositive.12 law not Nevertheless, testimony combined with the when before the Committee, persuasive it Judiciary support Senate constitutes for this construction. provision
A our of designed Code Criminal Justice to among similarly assure fairness situated defendants with re- changes to spect supports introduced the Code our conclu- especially capital equities sion that cases the require like procedural among death-eligible treatment defendants. While 2C:l-lc(l), directly applicable, provision, this is N.J.S.A. provides: instructive. It Committee, however, Judiciary subsequent Senate 12The issued statement 29, 1984, accompany to on November S.950. S.Stat. to later S.950. The says introductory paragraph propos- statement in the Bill “Senate No. 950 Jersey’s capital punishment es a series amendments New statute. bill, enacting Legislature the amendments contained in this the intent only changes. prospective apply to effect The amendments are not intended Id. at 1. retrospectively appeal." or to affect cases now Furthermore 4, 1985, Assembly Judiciary February Committee dated Statement contains language that in Senate identical to the later Statement above. AssembJudi- statements, however, ciary Comm.Stat. to S.950 at 1. Both of these indicate in specific weighing aggravating mitigating section on factors the bill requirement merely “clarifies” that there is a reasonable doubt whereas the sum, previous despite “silent” statute was on the issue. In our conclusion balancing provision only clarify Senate Bill was intended statute, admittedly crystal earlier this conclusion is less than clear from legislative history. *43 any pending case on or initiated after the effective date of the code date____
involving prior an offense committed procedural provi- to such [t]he govern, they justly applicable sions of the code shall insofar as are and their application delay____ does not introduce confusion or provision While this accomplish justice intended to in those pending cases that were when the Code of Criminal Justice was by applying enacted procedural Code’s provisions where appropriate, signifies it also generally legislative intention to give the benefit new possible, laws where just, and where charged those who are under old laws.13 legislative The intent regarding operation retroactive amendment is somewhat clouded the fact that both the Assembly Senate and Judiciary Committees’ Statements that accompanied 950, the release of Senate Bill which included numerous Act, other amendments to the indicated that provisions were intended to retrospective or “to affect appeal.” cases supra now See note 12. The force of that diminished, however, declaration is by the fact that the same language Statements contain clearly directing portion that this provisions of its (“aggravating outweigh beyond factors [must] factors”) reasonable doubt all of the mitigating is intended to clarify original version of the Act.
Ultimately our determination is based on fundamental fair- ness, a determination Legislature we believe the would share. Act, The from the date of very day, its introduction to this has reevaluation, revision, been in a state of analysis. Chapter 178 of the Laws of 1985 has probably effected what will turn revision, out to be the most substantial in but fact there have been even later revisions and pending there aré bills still further revision.14 Legislature apparently finally has de- Molnar, (1980), although finding equities 13In State v. 81 N.J. that the justify application, question case did not retroactive we held that the proof "procedural provision” meaning allocation of burden of was a within the 2C:l-lc(l), appeal "pending” of N.J.S.A. and that cases on were within the meaning of that section. Id. at 487-89. c.478;
14See L.1985, (Feb. 10, 1986). S.1680 imposed, termined that order for death to be must State prove beyond a aggravating reasonable that the doubt factors outweigh mitigating relatively factors. Given the short period transpired of time that has between the enactment of the Act in regard the amendments in we as would it impermissibly defendant, apply harsh to on this one critical death, question significantly of life and a standard less favor- applied defendant, able merely than that to be to another *44 relatively because of the short time differential between the doing commission their crimes. Much more is at than stake justice Biegenwald. at Mr. What is stake is the fundamental system generates fairness of a life and death decisions. suggest We do every changes not time the criminal law defendants, for the benefit of apply it should to all who ever crime, many years committed that no matter how before that change, any more imply than we would (contrary the Consti- tution) when the criminal is changed law to make it defendants, any harsher towards application such retroactive unfairness, appropriate. would any, be if there be in not applying laws retroactively in cases these is balanced practical needs of justice; system administration of reevaluate, continually cannot retry, all resentence those prior every changed. convicted under time that laws law is See Burstein, 394, (1981); 85 State N.J. 406 see also Johnson v. 719, 727, 1772, 1777, Jersey, New 384 U.S. 86 16 2d S.Ct. L.Ed. 882, (1966)(in determining 888 whether two decisions should applied retroactively, the Court considered “the effect on the However, justice”). respect administration with to the death penalty, changes only three-year and period within that affect imposition, its it unjust, probably is both outside of the Legislature’s intent, give previously those tried the provisions benefit of intended to have been in the in law the holding way in our place.15 Although any we do not rest first there is no sub- efficiency, we note that on considerations Although here.16 problem judicial stantial administration sentencing proceeding holding require our retrial of the will others, price relatively small this case and some all determinations: assuring in this most awesome of fairness live or shall he die? shall the defendant Act, tried under the hold that in all cases We therefore imposed, State must penalty to be in order for the death factors aggravating that the prove beyond a reasonable doubt outweigh mitigating factors.
VI. Resentencing sentence, no remanding we foresee vacating this death resentencing defendant. problems arising from double-jeopardy Supreme is, all, practice for the United States after standard It resentencing sentence for and remand a death Court to vacate See, e.g., Ed intact. leaving underlying conviction while L.Ed.2d Oklahoma, 455 U.S. S.Ct. dings v. *45 2521, 38, 100 Texas, 65 L.Ed.2d (1982); 448 S.Ct. Adams v. U.S. 1993, 633, Louisiana, (1980); 431 97 S.Ct. v. U.S. 581 Roberts 349, Florida, 97 (1977); 430 v. U.S. 637 Gardner 52 L.Ed.2d statutes, more 1197, (1972). Many state 393 51 L.Ed.2d S.Ct. in event that resentencing over, explicitly for such a provide (as opposed to legal grounds on is vacated a death sentence would, by Russo in 1986 Senator bill introduced 15We note that a Senate by weighing providing "if clarify among things, function other further exist, whether the verdict shall state any aggravating factors are found outweigh beyond reasonable doubt aggravating factors of all of the sum total S.1680 mitigating are found to exist.” factors which all of the sum total of added). 10, 1986) (Feb. (emphasis at 3 L.1985, c.178 was only capital were tried before cases 15 16We note that enacted. 68 evidence). See, (1982); e.g., 1113A-5-53(d)
insufficient
Ala.Code
15A-2000(d)(3) (1984);
19.2-264.3(0)
Va.
N.C.Gen.Stat.
§
§
;
(1983)
16-3-25(E) (1-2) (Supp.1984);
Ann.
S.C.Code
La.Code
§
30,
3,
905.1(B) (1984);
ch.
art.
tit.
Crim.Proc.Ann.
Ga.Code
cf.
17-10-35(e)(l-2)
(authorizing
Supreme
Ann.
the State
Court
§
the sentence aside and remand the case for resentenc
“[s]et
ing
judge
the trial
on the
argument
based
record and
”).
But see Ohio Stat.Ann.
(1982) (provid
counsel ...
2929.06
§
imposition of
ing
resentencing
for
life sentence should
be
Floyd,
Commonwealth v.
85,
506 Pa.
required);
ton v.
430,
101 Ct.
1852,
U.S.
S.
68 L.Ed.
451
270, in
2d
which the
held
Court
that a defendant who had
successfully appealed a
conviction
which life sentence had
given
exposed
retrial;
been
not
could
a death sentence on
of the
penalty
retrial
instant case on the issue of
would result
severity
potential punishment.
no escalation in
Cardwell,
Knapp
See
v.
1253,
(9th Cir.1982)
667 F.2d
1265
(distinguishing Bullington
part
because
sentence that
“[t]he
imposed
resentencing
can be
here cannot be more severe
assessed”),
1055,
cert.
previously
den.,
than that
U.S.
459
103
473,
Watson,
(1982);
S.Ct.
L.Ed.2d
State
120 Ariz.
(1978) (en banc),
den.,
924,
cert.
Resentencing double-jeopardy cannot be considered where the first death sentence was a sentence and the evidence charge was sufficient. This does mean that the State can any aggravating resentencing factors at that were not found *46 Redd, v. phase. Zant Ga. jury sentencing the first 249
69 1213, 103 (1982), den., 211, 36, 463 S.Ct. 39 cert. U.S. 290 S.E.2d State, (1983); v. 237 Ga. 3552, 1398 see also Miller 77 L.Ed.2d holding 376, (1976) (pre-Bullington case 557, 229 S.E.2d jury can held before a new on the sentence be that “a new trial him accused also sentenced jury that convicted the where the some appeal on because of was reversed death and sentence sentence”). infected the error that statute, trials prior capital punishment this state’s
Under
affecting
imposition of sentence
error
unitary, and an
were
den.,
494,
resulted,
Laws,
cert.
393 U.S.
v.
51 N.J.
until State
(1968),
408,
in a remand for a new
Thus, reject a the Court did not moreover, acknowledged, that its grounds. The Court jeopardy largely to the fact that resentencing due resistance id.; Jersey, “[wjhether foreign to New trials were bifurcated future,” ad- the Court adopted for the should be bifurcation “thorough study” That vised, thorough study.” Id. “calls for Act we passage of the in the to have resulted can be said unitary trial under a was decided uphold today. Because Laws misgiving major about statute, Court’s the Laws and because foreignness of bifur- penalty—the trial on the issue of separate *47 70 removed, been controlling precedent
cation—has Laws is not present for the case. only sentencing pro
Since the reversible error affects the ceeding, portion retrial shall be limited to that of the trial. shall 404, Guilt not be retried. v. Jeffers, See State 135 Ariz. 1105, den., 865, 199, 661 P.2d cert. 464 U.S. 104 78 S.Ct. L.Ed. (1983); 621, Blankenship State, 2d 174 v. 251 Ga. 308 S.E.2d (1983); Teague, (Tenn.1984). 369 v. 680 2d State S. 785 W. questions may Numerous arise resentencing, questions on initially level, are best answered at the trial and best by an appellate determined court on a full record. however, judicial economy, provide interest of we will some directions, guidance suggestions. tentative respect Act is silent with to proceedings on retrial. The question major to attempt impanel whether to same that heard originally the case or to jury. select a new While original jury advantage has the having heard the testimo ny guilt phase (thereby at the avoiding the trial necessity repeating testimony), disadvantages some of that far outweigh advantages. supposed Even as to the “advan tages,” lag original the time guilt phase between the trial of the may and the of sentencing phase long retrial be so as to raise a question jury’s about the initial ability remember that testi mony. Intervening subject events would be a exami careful nation on they voir dire order assure that have not prejudiced any original jurors, as well as to ascertain juror’s any whether mind unalterably had become fixed question of the sentence. We objections— believe these problems not to may simply mention the arise locating impaneling original jury—are insuperable. almost We therefore conclude that a new must selected. See State Finnell, 732, 769, 772, v. den., 101 N.M. 688 P.2d cert. 469 U.S. 918, 297, (1984); 105 S.Ct. 83 232 L.Ed.2d v. Com Watkins 469, monwealth, 422, (1985), den., 229 Va. 331 S.E.2d 431 cert. — U.S. -, 1503, (1986); 106 89 Hopkin- S.Ct. 983 L.Ed.2d
71 den., 908, State, 43, (Wyo.), P.2d 84 cert. 464 v. U.S. son (1983). 104 S.Ct. L.Ed.2d available, that, are It seems clear where the witnesses required present testimony through them rather State is offering transcript testimony original of their at the than Arnett, 201, 608 P.2d trial. 125 Ariz. See State *48 (1980). testimony. for such live Ordinary hearsay rules of call 63(3). to the Evid.R. While the Act’s reference State’s See (see 1985, obligation comply to the Rules of Evidence A. c. with trial, 178) presumably contemplates the initial there is no rea- why obligation applicable this should not also be to resen- son tencing. hearsay Therefore both the rule itself and the Act require testimony the witness is available. There live where why seems to be no reason the Act should not also be likewise determining presented by used in the form of evidence to be proof mitigating The Act allows circumstances defendant. 1985, regard 178. We to the Rules of Evidence. A. c. without option presenting has the therefore conclude that defendant testimony transcripts testimony or even where either live circumstances, however, the is available. Under those witness ordinarily allowing the to such inadmissible rule State rebut 1985, (A. of Evidence c. testimony regard without to the Rules 178) apply. should also resentencing, only admissi- is limited to
Since the retrial issue, namely, evidence of to the evidence is that relevant ble Retrial of issues relevant mitigating factors. aggravating and may lose guilt permitted. While defendant only to is not doubts” that the advantage inheres the “residual whatever guilt, see regarding defendant’s original jury may have had 1758, 1769, U.S.-,-, McCree, 106 S.Ct. Lockhart v. (1986), may also lose whatever the State 90 L.Ed.2d often sur- impact “advantage” inheres in the emotional guilt phase. A substantial amount the initial rounds may guilt phase nevertheless initially admitted evidence sentencing proceeding, for in the retrial of be admissible In this to the other. to one are relevant often issues relevant case, presumably required prove the State will to the circum- murder, guilt phase, stances as it did in the in order to prove aggravating c(4)(c). factor
Finally, it as seems if the State and the defense are free to present evidence, testimony new or present- documentation not original ed at the sentencing proceeding, and that the new may concerning reach aggravating conclusions factors and miti- gating findings factors from and different inconsistent with the original sentencing proceeding. words, at the In other neither assured, trial, gained side at the new of the “benefits” in the original only applicable trial. The constitutional restriction retrials in may criminal cases is that the defendant not be subject punishment beyond trial, imposed in the first and since death was the verdict in the first trial that issue is immaterial here.
Conclusion Ramseur, As we stated in supra, State it N.J. at is not pass for this Court wisdom the ultimate morality of penalty. Legislature death That issue is for the *49 Governor, and the and them alone. Our function is to determine whether their implementing decision and the it law constitutional, are and thereafter to review cases the where penalty applied. death is We find the act in constitutional all respects imposition but reverse the of the penalty death for the reasons set forth above and remand the matter for a new trial sentencing of the proceedings only, in accordance with this opinion. We affirm the murder conviction.
HANDLER, J., dissenting. Biegenwald
Richard was convicted of murder and sentenced to death. challenges constitutionality He capital the of the penalty statute, Ill, murder-death L. c. under which he prosecuted. was He claims that other in errors occurred the course of his prosecution require and trial that reversal his conviction and The majority sentence. sustains the murder conviction but reverses defendant’s death sentence. I would sentence, reverse defendant’s conviction as well as his and therefore dissent. Court, essentially expressed in for the reasons the com- Ramseur, case of State 106 N.J. (1987),
panion also today, upholds constitutionality capital decided mur- penalty der-death statute. It also concludes that there was no by pretrial publicity reversible error occasioned adverse aggravated by prosecutor, the conduct of the or the manner in which the voir venue, change denial of a dire examination of petit jurors was conducted. It further respect no determines that there was reversible error with to charge the trial court’s on or the denial of “reasonable doubt” request sentencing phase defendant’s to in the waive sentence, however, respect the trial. With trial give Court finds that the trial court failed to a correct instruc- concerning meaning application aggravating tion and of an capital factor critical to the determination of murder and did properly instruct to the and as establishment factors, weighing mitigating aggravating which errors prejudice require sufficient reversal of the death created resentencing defend- sentence and a remand for a trial at which again prospect penalty. ant of the death will face constitutionality of I as to the differ from the Court expressed opinion I capital penalty murder-death statute. the constitutional Ramseur thаt the Court must examine federal and State Constitutions. issues in terms of both the constitu- analyze apply state Particularly, the Court must relating principles tional federal constitutional doctrine because state capital punishment seriously flawed and because penalty markedly sovereign relating to the death concerns capital punishment or other outweigh any national interest *50 that state constitutional concerns of federalism. I reasoned require life and principles place highest value on individual stake; these greatest protections when life itself is at fairness, principles, by enhanced considerations of fundamental impel the conclusion capital penalty murder-death statute is violative of prohibiting state constitutional standards punishment cruel and unusual mandating and process. due Because major these fully constitutional issues were considered by majority dissenting opinions case, in the Ramseur and are by case, not further treated the Court in this I have not again here constitutionality addressed the capital of the mur- der-death penalty statute. differing addition to sharply from the Court on constitu- grounds,
tional agree I cannot with its determination that defendant’s murder severely prejudiced conviction was not by pretrial intense publicity, adverse and trial which was material- ly by prosecutorial exacerbated misconduct and was not cured change adequate venue corrected an voir dire jurors. agree examination of I reasoning with the majority that reversible error occurred respect with to the trial court’s sentencing. However, instructions on because of the evidentiary insufficiency charge relating and incorrect to a murder, material capital element of namely, aggravating c(4)(c), factor of I believe that the reversal of defendant’s death penalty sentence acquittal should be deemed an on the death sentence and constitute a bar to seeking another trial the death penalty. subject
These issues are the dissenting opinion. of this I address first the nature and extent of pretrial the adverse publicity, noting particularly impact its upon the selection jurors. I then consider whether defendant was entitled to a change venue, emphasizing heightened govern- standards ing right impartial to a fair prosecution in a for capital murder. requires This concern consideration of whether adequate voir dire examination was to overcome the effects prejudicial pretrial publicity right and to assure defendant’s impartial to a fair and light of the fact that the trial court change refused to Finally, venue of the trial. I grounds reversing review the defendant’s death sentence defendant, and consider whether prin- under state constitutional *51 fairness, ciples jeopardy again of double and fundamental can purpose imposing penalty. tried for the the death I.
Defendant claims that he was denied a fair trial before an impartial jury prejudicial pretrial due to massive and trial publicity, materially aggravated by prosecutor’s which was unjustifiable publicizing needless and prior of the case to trial. deny Defendant contends that it was error to his motion to change prejudicial publicity. venue in the face of such He further contends that prejudice this was not otherwise over- come, particularly in that the trial court failed to conduct an Moreover, adequate jurors. voir dire examination of refusal in the jurors court’s voir dire to excuse several attorneys question prospective jurors cause or to allow the permit challenge jurors defense counsel to for cause at side compounded inadequacies bar of the voir dire. errors, contends, right
These defendant violated his to fair process guarantee trial under the due fifth and four- right impar- teenth and the amendments sixth amendment to an Constitution, I, tial under the federal as well as Article paragraphs proper 1 and 12 of the A State Constitution. understanding of these their first a issues and resolution entails exposition relating publicity detailed sur- the facts rounding investigation prosecution and of the crime and its impact prospective jurors when the trial com- selected menced.
A. extensive, coverage graphic, Media of defendant’s crime was During period month in the and sensational. a three to four spring early widespread publici- summer of there was ty throughout newspapers about the defendant in distributed prosecution County, vicinage Monmouth in which the brought. Newspaper many the defendant to as articles linked area;
as they seven murders in the also disclosed the fact that prior defendant had a murder Front-page conviction. articles widely Asbury during period read Park Press this con- police pictures tained efforts to find and recover buried *52 maps grave bodies found, and sites where bodies were as defendant; well pictures as they shackled also related persons interviews of who knew defendant and interviews of the families of victims. There were also news stories that personnel focused on how forensic medical identified unknown through bodies dental charts. publicity prosecu sensationalism this was fed the
tor prosecutor himself. The telephone a established “hot-line” anyone number to receive calls from with information about the gave significant murders or defendant and publicity. this Moreover, press specifically the prosecutor invited report witness and investigations involving on By defendant. admission, prosecutor’s reporters own some 200 went to defendant’s mother’s house on Staten Island to observe and report digging operations on for at bodies that site. The prosecutor also press held several During conferences. one press clothes, conference jewelry a victim’s and dental charts brought were photographed and were and reported by the media. press In another prosecutor conference the clearly indicated that he believed that was guilty. defendant He also publicized made numerous concerning comments defendant’s murders, motive for the leading murders and the events to the giving impression factually these matters were true. article, One hoping headlined stab victim adds to “[Prosecutor] Biegenwald profile,” quoted prosecutor as saying that in vestigators were on concentrating identifying body a “believed (See to be the fifth of Asbury victims.” Park [the defendant’s] Press, 24, 1, 1.) April Among at col. prosecutor’s oft-repeated press statements to the were that defendant mur pleasure seeing (As dered his “for the victim sheer her die” 5, bury Press, May 1, 4); Park 1983 at col. “because he wanted night” (Star 21, 1983 1, see die May someone Ledger, at 9); guess “I she wouldn’t til die he shot her twice [sic] more”; that four of his Biegenwald victims died en because killing joyed people; and “perverted, that was a he sick individual” (A Press, 5, 1983 4). sbury May 1, Park at col. As result a characterizations, of such defendant was in head referred to lines of the Daily Trenton Times as and News the “Thrill coverage Killer.” News relating to defendant’s involvement in presented these crimes was also on the radio television. publicity, brought the wake of this adverse defendant change motion The assignment judge venue. denied 29, However, July this motion on 1983. the court did an issue enjoining prosecutor order making from further comments press regarding to the non-indicted making matters from Nevertheless, inflammatory any remarks of kind. publicity again up Sunday, flared day November before began. the trial day, Asbury On that Park Press carried a *53 front-page upcoming trial, the featuring picture article on a defendant, conviction, revealing the prior repeating his the prosecutor’s motive, linking statements on lack of and to defendant five other It is undisputed murders area. jurors that some read newspaper accounts of the trial in the jury assembly Thereafter, they empaneled. room before were constant, press coverage continuing remained daily basis relating and jury the details voir examination and dire the trial itself. The entire trial televised. tangible impact publicity
There was a from this on the jury-selection process. objected Defense counsel to empaneling jury sought change ground of venue on the that the prejudice publicity from pretrial this adverse could not and, further, jurors overcome that the voir dire examination of change itself would be insufficient to establish a basis for a motion, stating point venue.1 trial court denied the at one dire, day first 1On thе voir November the trial court denied relating empaneling jury. several of defendant’s motions to the of a These fifty jurors that if said their deliberations would by be affected the publicity, argument” the defendant would “an have for a time, change of venue. At another the court stated that it change would not entertain the motion to venue until after the grant voir dire and that it would not the motion unless 250 prospective jurors they said impartial. could not be procedure
The voir dire by was undertaken the trial court between November 14 and 1983. purport The examination problems ed to pretrial address the created publicity.* prospective jurors The trial court instructed the not to discuss among the case jurors themselves. The were asked about the publicity they exposed to which were publici and whether such ty However, would affect their guilt. determination of the trial refused, initially court objection, question over defendant’s jurors they about the details pretrial press recalled from the read; they accounts had the court indicated it would consider asking jurors only they thinking whether were all about indictments, press reported together. since the them Defense counsel then unsuccessfully moved for a mistrial on the grounds jurors being give were seated who would consider ation to other crimes and because the court refused to allow sought jury during Thanksgiving motions week sequester after selection but before the trial, to allow the to conduct the voir attorneys juror’s dire. guilt The court also refused to ask whether the determination of would be affected defendant’s choice not to defendant, unless the testify who had not decided whether made an election at yet time. testify, general 2In connection with the dire, voir the defense and prosecution were to submit additional attorneys wanted to required any questions they jury. The court made a few ask the however, have the court exceptions, allowing jurors counsel to ask one or two follow-up questions. Prospective were about their education, questioned contacts with family, occupation, prior *54 generally enforcement, law whether had been victims crime, whether they disagreed feelings could the law even if it, with their they apply they about to vote for the death capital whether punishment ability penalty, they (if juror’s would vote for a death initial answer automatically penalty this), suggested and whether would consider both the death they penalty jurors life as in the Some imprisonment options penalty phase. prospective were asked whether television cameras in the courtroom would bother them. attorneys to state their objections bar, cause at side outside juror’s hearing. any peremptory Before challenges exercised, were sixteen jurors, who were not cause, otherwise excused for were seated. Throughout dire, the voir jurors court asked most what recalled; they sought it to determine from their answers wheth- they er knew about more than one murder or about defendant’s prior Nevertheless, conviction. the court ruled that it would anyone not excuse juror cause unless the expressly stated that he or she could not impartial. again Defense counsel mistrial, moved for a claiming that the by voir dire conducted the trial court was an insufficient basis on which to exercise challenges capital in a case.
About half of panel each was excused at the outset because persons could not serve for the four to six weeks that the trial court estimated the case would Ninety-five prospective last. jurors questioned were before the final sixteen-member was seated.3 Seven of prospective jurors excused, these were conflicts, personal due to questioned before the court the re- maining jurors about they what read or heard about the case. remaining eighty-eight Of the questioned, forty-seven who were exposed significant were pretrial to publicity4 and recalled thought Defense counsel the court would allow further voir dire after the jurors used, peremptory challenge initial 16 were seated. After the first was juror questioned selected, presence jurors already another was outside the panel general jury assembly and so forth. When the first from the room was exhausted, panel brought a second was in and instructed the court exhausted, panel panel discuss the case. When this the third was called instructed; however, similarly only but juror was not this time one more complete jury. panel was needed to Each new waited in another unused was-apart proceedings general jury courtroom that from the voir dire and the assembly room. name, merely they 4Jurors who said knew defendant’s knew he was accused murder, of the Olesiewicz or other facts about this case were not considered exposed significant pretrial publicity. Only jurors expressly who mentioned prior their recollection of several murders or bodies or that defendant had a exposed significant pretrial publicity murder conviction were considered *55 specific details—usually murders, that there were several were found bodies buried in County Staten Island Monmouth or that the prior Thirty-five defendant had a conviction. forty-seven were excused by they they court because said render impartial judgment could not an in light they of what knew. remaining Four twelve were seated over defend- challenges ant’s for cause exposure publicity. based on their to Every challenge for cause made the defendant was denied. dire, day
On the fourth of voir Pisnoy, prospective Ellen juror, prior said that to the trial court’s instructions to the panel, potential jurors had discussed the fact that defendant was accused of Fitzgerald, several murders and the role of Mr. one of the main Fifty jurors State’s witnesses. had been questioned prior to this revelation but none had mentioned among discussions potential jurors. attempt The trial court’s jurors identify the only involved these discussions consisted questioning prospective jurors same random on voir general questioning juror dire and of each was about what said, by whom, among waiting jurors. fifty-fourth prospective juror, Hugo, during Michelle confirmed dire voir seated, jurors that even prospective jurors after the were were comparing newspaper recollections accounts about how him, young go defendant lured women with how had he them, murdered and how he had been turned in his friend. potential jurors, Three Cooper, Megill, Ruth Elizabeth Ennis, they Anne given revealed that had other prospective jurors alleged Cooper details of defendant’s other crimes. Ms. specially questioning immediately called after Ms. Hugo her, Megill identified but Ms. and Ms. Ennis were called randomly their as numbers were drawn from the box. These jurors identify spoke, were asked to they those whom but the since these matters were at trial, inadmissible for the conviction at except prior sentencing phase. questioning jurors court’s did reveal all who were thus exposed extra-judicial to the publicity.5 *56 all, persons nine exposed significant
In who were to pretrial publicity were seated some of with members the final they peremptorily by before were excused the defendant or publicity among State. That extensively pro- was discussed spective jurors, not all of whom were juror, identified. One Ms. Hugo, nothing knew of who the defendant before being called jury duty girls for but about young learned several murders of discussions, in courthouse served on defendant’s Before jury. seated, the juror twenty last was defense counsel exhausted all peremptory challenges.
B. primary generated by The issue pre- the extensive adverse publicity trial is whether this such publicity jeopar- was that it right dized defendant’s constitutional trial by to a fair and impartial jury. dealing with this kind of issue in the context need, capital prosecution, murder we have stressed the Constitution, under our State for a strict standard that would protective fully be significant jury rights of a defendant’s light the importance of the at State interest stake. Williams, 93 N.J. 39 (1983). Cooper questioned, jurors already 5After Ms. was the seated were on the asked, brought Cooper’s presence, they the into courtroom and in Ms. if had spoken Cooper. They or had discussions about the case had Ms. denied panel brought Cooper general such discussions. Then the was in and Ms. who, turn, questioned spoke, identified those to whom she were on bias. In case, jurors Megill’s group Ms. she and had said 10 or were in her discussion involved, already.” only "come to conclusions She could name two of thоse questioned day two were on bias and the however. These next excused gave potential court. Ms. Ennis said she details of the crimes to about six
jurors panel, only questioned One in the but could recall two names. was grounds, day other excused excused on while other had been on the first family already-seated jurors due to illness. Neither the nor the balance general panel brought Megill Ms. Ms. Ennis others before or so that involved in discussions could identified. our majority The asserts that review in this case circum- defendant, appeal, complaint scribed because on this makes no dire or rulings about voir about trial court’s his cause, challenges for and because counsel failed defense change his renew motion venue at conclusion of the any dire. I not find bar voir would to our consideration this important may issue because defendant not have amade clear all, continuing objection rulings. trial court’s After “a pause justice is at stake” we life and will “in interest of plain error to invoke the rule ... and to reverse where the trial impregnated errors were of having with likelihood harmed rights Mount, the substantial of the defendant.” State v. (1959). N.J. Supreme recognized Court has the denial of the
right
impartial jury
to a fair trial
an
can involve two kinds of
*57
cases. One consists of situations in which the defendant must
See,
prejudice
demonstrate
in
jury.
e.g.,
actual
the
Patton v.
Yount,
1025,
2885,
(1984);
467 U.S.
104
actual pretrial publicity. potential effect adverse It was the anticipated prejudice or publicity—that from adverse would press coverage pretrial proceedings—that result from was focus of Court’s determination. In State v. Bey, N.J. (1984), capital prosecution, a murder Court concluded pretrial publicity jeopardize there was sufficient adverse to right impartial jury. defendant’s constitutional to a fair and hearing We conducting ruled that trial court erred a standard, determine, under the whether Williams there prejudice publicity “realistic likelihood” of from this require change would venue extraordinary or other correc- tive measures. in determining
Courts have considered several factors wheth- pretrial publicity er the are prejudicial effects of sufficient (1) right fair undermine the to a trial. These are: factual, publicity—whether inflammatory nature and extent referring prejudicial are matters which inadmissible *58 trial; (2) length of at the of time between the dissemination the trial; publicity (3) difficulty the the and care exercised and the (4) jury; prospective in final selecting encountered a the and information; (5) jurors’ familiarity prejudicial, with inadmissible jurors’ ability prospective the resultant effect on and final the (6) impartially; peremptory use of deliberate defendant’s (7) prosecution’s respon- challenges publicity; correct for 84 crime; (9) (8)
sibility
publicity;
for the
the nature of the
drawn; (10)
efficacy
of
population from which the venire
venue;
(11)
curative measures
change
precautionary
of
and
a
publicity.
the trial
of
by
taken
court to alleviate
effects
See
Annotation,
As
Publicity in Criminal Cases
Ground
Pretrial
17, 33,
(1970)
Venue,
(Supр.
Change
33 A.L.R.3d
38-78
For
cases);
1986) (collecting
Ranney,
Prejudicial
Remedies for
Review,
819, 829,
(1976);
Publicity: A
Villa.L.Rev.
Brief
Note, Community Hostility
Right
Impartial
and the
to An
(1960).
361-65
Such factors are
Jury,
Colum.L.Rev.
in
illustrative of the circumstances
are relevant
determin-
pretrial
ing
publicity
effects of
and trial
prejudicial
whether
given
in
case
the “realistic likelihood” that defendant
a
create
impartial
jury.
could not otherwise obtain a trial
fair and
case,
undisputed
facts in this
informed
Consideration
factors, leads
conclusion
such
to the
that defendant’s constitu-
right
jury-trial
publicity.
undermined by
tional
was
this
recounted,
prejudicial publicity
As
there
extensive
about
was
newspapers
County
in
the defendant
distributed in Monmouth
during
spring
of 1983.
trial
and summer
When
commenced
November, the
resumed
publicity
and continued thereafter
basis,
daily
unsequestered.
on a
while the
remained
publicity
inflammatory
was
and
rather than
sensational
factual
objective.
prejudice
newspaper
and
Particular
inhered
arti-
murders,
one
cles that discussed several
in addition to the
tried,
being
highly damag-
defendant
and
which
was
contained
information,
names, ages
ing and inadmissible
such as the
Further,
other murder
locations
bodies of
victims.
extensive;
population
publicity
widespread
was
the same
exposed
pretrial publicity
was
constituted the source
to the
prospective jurors
from which
were drawn.6
359,254.
population
County’s
Its
6In
Monmouth
“over 18’’
was
total
503,175.
515,181,
slight
July,
population
population
total
Its
was
Labor,
figures.
Dept,
Demographic
increase
the 1980
See N.J.
Office of
over
Estimate,
Analysis,
Population Estimates for
and Economic
Official State
New
*59
publicity
This
publi
was fueled
the prosecutor’s widely
personal
cized
regarding
bearing
comments
critical matters
not
guilt
only
well;
on criminal
on culpability
but
as
such as
result,
of
charged
defendant’s absence motive. As a
the crime
appeared especially shocking
impact upon
public
and the
highly sensational.
prosecutor
The actions of the
were inten
tional,
inadvertent,
surpassed any professional
and
needs
arising
investigation
prosecution
from the
of
case itself.
Indeed, this
Jersey
conduct violated the New
Rules of Profes
Conduct,
(1982),
sional
3.6. In
of Rachmiel,
Matter
Although this
an
proceeding,
case is not
ethics
it is none-
prosecutor’s
theless clear that
professional-
conduct was not
ly justifiable
defensible;
or
it
an
undoubtedly
was
factor
added
that contributed
violation of defendant’s constitutional
rights.
prosecutorial
This form
weighed
misconduct must be
Estimates,
Estimates,
1,
Jersey:
July
July
Revised
1982 and Provisional
Estimates,
Thus,
1984).
July
(Sept.
jurors
and Provisional
were drawn
(over 18) population
County
approximately
an
from
adult
Monmouth
360,000
more,
slightly
County
readership
1983.
Monmouth
adult
Press,
Asbury
greatest
prejudicial
Park
which the
number of
articles
115,276
appeared,
162,513
(daily)
(Sunday)
slightly
in 1982 and
higher,
increase,
Thus,
adjusted
population
for the
in 1984.
as much as
population
pool
exposed
one-half of the
from which the
was drawn was
highly prejudicial
Asbury
day
information in the
Park Press on the
trial.
before
*60
heavily against
assessing
the State in
defendant’s claim to a
and,
denial of
rights
important,
constitutional
more
in determin-
ing what relief defendant is
repair
entitled to receive in order to
damage.
the constitutional
Sugar,
See State
sures, imposition such as its “gag of a order” and a short continuance of the publicity trial. That the effect of the was by steps by overcome these is evidenced the news articles appearing day trial, the repeating damaging before and inad- information, including missible prosecutor’s inflammatory addition, In by comments. as evidenced the voir dire examina- tion, 75-81, supra see at publicity tangible impact had a prospective and jurors. selected
The extent and nature of the publicity, by as measured factors, relevant created the realistic likelihood that a fair and impartial jury could not be obtained. Absent effective correc- measures, tive defendánt should change have obtained a of therefore, question, venue. The is whether the trial court’s voir dire examination served to neutralize the effects of the prejudicial publicity impartial jury. and secure an
C. flexibility Courts have in coping preju considerable with the dicial publicity. effects of adverse may The trial court order an adjournment trial, venue, change a empaneling of or the foreign jury; of a they may engage also particularly in a thorough prospective voir dire examination of jurors. See Williams, 39; supra, Allen, State v. 93 N.J. State v. 73 N.J. 132, 161(1977)(Pashman, J., Trantino, concurring); State v. (1965). Williams, N.J. 39-40 In supra, State v. at N.J. 60-63, premise 67-68 n. regarding of the discussion juror change taint and of venue motions was that in cases preceded by publicity, extensive an searching “exhaustive and linchpin voir necessary empaneling impartial dire” is particularly jurors, pretrial change where motions to venue and 68-69, sequester the have been denied. Id. at n. 18. case, the sequester this trial court refused change venue, order or to require foreign jury. More- over, its short imposition continuance the trial and its aof gag order after several publicity months adverse inef- were prevent fective did not the resumption publicity. of adverse question We turn then to the whether voir dire examination itself sufficient to prejudice generated overcome the severe pretrial publicity. the adverse and trial appellate Our own role must be understood. This Court has recognized the independent need for the and scrupulous evalua- tion appellate voir dire examination court to *61 by pretrial resolve the claims publicity. raised adverse See 369, (1964). Duyne, State v. Van 43 Sheppard N.J. 386 In v. Maxwell, supra, 1507, 600, 384 U.S. S.Ct. 16 L.Ed.2d Supreme the has Court also considered the appel- standard of late review complains community where defendant that the jury from which the was by publicity drawn was so tainted that process transgressed. due and the sixth were amendment The must, reviewing situation, court in independent that make an evaluation of facts regarding publicity the and circumstances and the jury of voir dire examination to determine whether the publicity pervasive prejudicial profes- was so and or the jurors’ of impartiality sufficiently sions is doubtful that a new trial required. corollary Williams,
A ruling of this Court’s v. State supra, if a a showing that defendant makes of a realistic prejudice likelihood of publicity, from adverse he should be change reason, entitled to a of venue. For we also necessary considered in proof the burden of in order Williams change to secure a of In of adopting venue. the new standard taint, jury specifically the “realistic likelihood” of we overruled change the former for of test a venue announced State Wise, (1955). impartial N.J. That “whether an jury among county could be from citizens of the or obtained they they qualified
whether are so aroused that would not jury try operative sit a case.” as The standard now of governing judicial review a trial court determination a right impartial jury defendant’s to an was not and a violated of not change required venue was is the test of substantive procedural and Duyne. test of Van Our stan- Williams Duyne requirement in this kind of case is the dard Van of an record, appellate independent applying evaluation of determining “realistic likelihood” test for whether the Williams right change required. has been violated and a of venue is my opinion, independent relating In an evaluation of the facts pretrial nature of publicity to the and extent the adverse makes abundantly it clear that there was a realistic likelihood that defendant could not a a fair impartial jury, receive trial that, in the publicity, face this adverse voir dire of the efforts trial court were ineffective to neutralize the Thus, prejudice. effects resultant it is error reversible granted for the trial court change have venue. denying venue, change motion defendant’s obviously trial court believed that the voir dire could be an prejudicial publicity. effective antidote to the relied court simply experience every prospective its own juror would forget every not have read article or would what he she read began. However, prejudicial impact time the trial publicity adverse on the immediately became evident. *62 jurors prospective Both and final had become with the familiar through publicity, of learning prejudicial case the both and noted, As more inadmissible information. than half of the prospective jurors questioned publicity specific about recalled prejudicial, concerning inadmissible information defendant. jurors overwhelming majority of these volunteered impartial they juror could not render an decision. One who was finally seated knew that the defendant was accused of murder- girls impartial. ing professed but nevertheless to be several argued Defendant at scope trial that the of the voir dire was sufficiently not to prospective jurors exhaustive reveal who might knew and by prejudicial be influenced and inadmissible information; result, as a develop defendant to was unable facts to demonstrate further the realistic likelihood of or taint to provide a basis on which change-of-venue to renew his motion after the voir intelligently dire examination or even to exercise challenges for during cause voir dire.
I find merit in this claim. The of questioning prospective was, jurors publicity about for part, general the most too to any have acknowledgement jurors elicited from they knew prior of defendant’s conviction or his connection five mur- Initially, questions proceeded ders. the court’s from directly juror’s exposure to publicity juror to whether the could impartial verdict, render any an without as inquiry to what the Later, juror had read or heard about the case.7 as a result of objections, throughout dire, defense and the rest of voir prospective juror court asked each what details he or she publicity recalled from the in connection with defendant’s name any background whether he or she recalled information However, juror about the defendant. if a did not mention murders, prior or link defendant’s conviction to other the trial simply juror only court went on to ask whether he she impartial. strong finding would be There is a basis this seriously examination to be deficient.8 Cross, example, prospective juror, 7For Mr. said he read articles in the defendant, Asbury including particular Park Press about article trial, appeared day prior before which mentioned conviction and link any specific to other murders. Yet because Mr. Cross did refer these impartial, dire he facts voir and said would the trial court denied the challenge Mr. defendant’s Cross for cause. Relating 8The Fair ABA’s“Standards Trial Free Press” are instructive adequacy purposes exposing prejudice resulting toas of voir dire for They publicity. provide: from adverse (a) Method examination. *63 inadequacy
Related to the of the voir dire to elicit traces of part jurors bias on the is the failure of the trial court to jurors excuse challenged several cause. Defendant six prospective jurors grounds exposure for cause on the that their relating publicity to inadmissible information rendered their impartial highly improbable, impossible, deliberation if not re gardless impartiality. of their own belief their Four of these jurors they mentioned information that indicated knew defend ant was accused of several other murders or prior that he had a prospective jurors, murder conviction. Five other whose state they ments indicated knew the defendant was linked to several prior conviction, murders or that he had a murder were seated challenging without the defendant them for cause. Two were peremptorily defendant, excused were two excused the state and one jury. served on defendant’s The court questioned prospective jurors each of these nine juror and each professed put that he or she could aside the extraneous infor *******9 mation and impartially.* deliberate general excusing
The test for prospective juror for cause is strong whether there is a probability, grounded likelihood or experience, be, human that such an individual will or will significant possibility Whenever there is believed to be a that individual ineligible exposure potentially talesmen will to serve because of materia), prejudicial juror respect the examination of each with to his exposure place presence pro- shall take outside the of other chosen and spective jurors____ questioning purpose shall be conducted for the determining prospective juror what the had read and heard about the case exposure trial, and how his has affected his attitude towards the not to duty convince him that he would be derelict in his if he could not cast any preconceptions might aside he have. Project See American Bar Association on Minimum Standards for Criminal Jus- tice, Relating 3.4(a) March, (approved Standards to Fair Trial and Free Press ed. 1968) Standards], [hereinafter ABA Appendix opinion, 9The to this at recounts the examination infra jurors. inadequacy these nine It is included to illustrate the of the voir dire prejudicial pretrial publicity examination to ferret out the effects of the as well provide concluding strong as to a basis for there was a likelihood that these jurors prejudiced by pretrial publicity. had been *64 be, appear prejudiced. The criterion is not whether the prospective juror’s experience necessarily will or inevitably be Jackson, See prejudicial. State v. 148, (1964); 43 N.J. 157-58 Bernstein, Wright v. 23 N.J. 284, (1957)(test 295 is not wheth- irregular er actually result, matter influenced the but whether it the capacity doing so). had for
The decision prospective juror whether to excuse a for cause lies within the discretion of the trial court because that determi is heavily dependent nation subjective on a evaluation of the juror’s credibility. See State Singletary, v. (1979). 55 N.J. 80 Nevertheless, this Court appeal particular can decide on present strong circumstances such a of prejudice likelihood that, law, as a matter prospective jurors of should have been Duyne, supra, excused. See State v. Van 43 N.J. at 386 (appellate required court to independently determine whether publicity pervasive prejudicial, juror’s protestation so and of doubtful, v. impartiality so State required); that new trial is Deatore, 70 N.J. (1976) (where juror 105-06 had close victim, relationship excused); juror with State should have been Jackson, supra, v. 43 N.J. (juror key 148 of who was friend Bernstein, excused); state witness should have Wright v. been supra, 23 N.J. 284 (mistrial should have been in declared in juror’s plaintiff accident case which in mother was unrelated personal injury v. in Panko Flint day); case heard court that Co., kote (1951) (new 7 N.J. 55 required juror trial where trial). liability during learned amount of defendant’s insurance faith, A prospective juror’s professions impartiality, good necessarily See Irvin v. controlling. fair actions are not Dowd, 717, 723, 1639, 1642, 366 U.S. 81 S.Ct. 6 L.Ed.2d (1961) (jurors thought guilty who defendant before trial though they they should be excused for cause even said would deliberate impartially).10 juries relating empaneling 10TheABAStandards fair address the tests for determining juror pretrial publicity exposed whether a to adverse should be cause,
excused for viz: overemphasized proce- It cannot be substantive protections necessary dural de- assure vindication Constitution, rights—under fendant’s constitutional the State particularly as enhanced considerations fundamental fair- prosecution capital ness—must be maximized in a murder. See Ramseur, State v. supra, (dissent- N.J. at 369-382 ing rights opinion). respect surrounding With to the cluster of fairness, capital require higher the need for cases stan- applied ordinary in or by dard than that cases trial court Williams, here. See supra, State N.J. at 61 (requirement impartiality heightened fairness and eases which *65 Alabama, Beck v. death) 447 U.S. (citing defendant faces 100 S.Ct. 625, 637-38, 2382, 2389-90, 392, 65 403 L.Ed.2d Jackson, supra, State v. 43 N.J. at (1980)); 156; State Mount, supra, Wynn, N.J. State v. 213; N.J. 30 264, at 21 271 (1956). whether, respect With in capital involving to cases prejudicial publicity, jurors reasonably should be excused for Williams, supra, cause, at N.J. in Court 93 68-68 stated: greater willingness court could consider whether be a there should to [trial] excusing jurors resolve doubts in favor of the in defendant for cause. Particularly cases, capital judge extraordinary in the trial should exercise care potential jurors any juror in the voir dire of and could for excuse cause who (b) acceptability. Standard of degree jurors’ exposure prospective testimony Both the and the toas acceptability. his state of mind are relevant to the determination of A prospective juror who states that he will unable be to overcome his subject preconceptions challenge slight shall be to no for cause matter how exposure. If his he has seen or heard and remembers information that trial, developed may will be in the course of or that be is inadmissible but prejudicial judgment so as to create substantial risk that his bewill affected, acceptability testimony his shall on turn whether his as to impartiality having opinion, is he believed. If admits to formed he an subject challenge be shall to for cause unless examination shows unequivocally impartial. prospective juror that he A can who has been information, exposed reports highly significant to and remembers such confession, incriminating as or the existence contents of a or other matters evidence, may that be inadmissible or substantial amounts of inflamma- material, tory subject challenge regard shall be to for cause without to his Standards, testimony 3.4(b).] supra, as his state mind. ABA [See
93 exposed prejudicial publicity, especially has been to sensational where such exposure repeated patently (Footnote and involves inadmissible evidence. omitted.) Williams, 61, We supra, added in 93 at jurors that who N.J. have an opinion guilt formed as to or innocence must be excused, that “only and if it is juror demonstrated that ‘the can lay impression opinion aside his or and render a verdict based presented the evidence’ court exposure will extraneous grounds the case facts of not be disqualifica for automatic (quoting 23, tion.” Sugar, Id. State v. 84 supra, N.J. at Florida, Dobbert v. U.S. S.Ct. L.Ed.2d (1977)).11 my opinion,
In error was inherent in the trial refusal court’s recounted, nine jurors already excuse these for cause. As Hugo, juror, implicated Ms. knew defendant in other addition, eight prospective jurors—who murders. the other Hugo’s knowledge—sat shared Ms. with some of the actual jurors varying periods being in the room of time before prior excused. Jurors knew about the defendant’s murder conviction or he was connected with accused of several being recent murders other he than for which was tried. strongly suggests may This information have inadmissible jury, serving come to the attention to con defendant’s sciously unconsciously prospective influence jurors to *66 verdict, the guilty penalty ward either the death or both. circumstances, strong extremely Under these there is an likeli hood, experience, in grounded jurors human that such would prejudiced despite their impartiality. their sincere belief in own comparable 11This is to the ABA that call a reason standard standards for prejudice jury. require showing able test and no likelihood of actual provide change The that is made ABA standards also where a motion venue selected, jury jury after the the fact that satisfies reconsidered controlling prevailing acceptability of is not if the that standards record shows Standards, supra, likelihood was met. ABA 3.2. reasonable standard See discussion, supra, 10. See at 91-92 n. 94 Dowd, supra, 366 81 6
See Irvin U.S. S. Ct. L.Ed. 2d 751.12 result of the trial
As a court’s erroneous failure to excuse cause, jurors required defendant peremptory to use challenges jurors. to remove of peremptory All defendant’s challenges By forcing were exhausted. defendant use his peremptory challenges to prejudicial pub- excise the effects of from the licity jury, trial court denied defendant his full complement challenges. of peremptory practically It is axio- matic that the of a peremptory challenge denial is the denial of right. a substantive See Singletary, supra, State v. 80 at N.J. psychological publicity 12The and social science research on the of effects on conclusive, juror prejudice entirely is not casts but serious doubt on whether jurors ignore prejudicial relating can information to the defendant obtained despite posit outside the courtroom curative instructions. At least two studies prejudicial publicity that instructions can eliminate or reducе the effect of See, Simon, jurors’ e.g., deliberations. "Does the Court’s Decision in Impact Press Nebraska Association Fit the Evidence Research on the on Jurors Jess, Coverage?,’’ (1977); “Prejudicial of News Stan.L.Rev. 29 515 Kline and Juries," Publicity: (1966). Q. Its Effect on Law School Mock 43 Journalism 113 However, cautionary other studies indicate that such instructions are ineffec See, counter-productive. e.g., Padawer-Singer, Singer Singer, tive or & “Voir Lawyers: (1974); Safeguard,” Dire Two An Essential 57 Judicature Padawer Barton, Verdict," Singer Publicity Impact Jury & "The of Pretrial on Jurors’ The Doob, (Simon “Evidence, System 1975); in America: A ed. Critical Overview Procedure, Research,” Psychological Psychology and and the Law: Research (Berman, Vidmar, eds., (1976)); Sue, Caldwell, Frontiers & Nemeth Smith & Inadmissible, of "Effects Evidence on the Decisions of Simulated Jurors: A Dilemma," (1973); Sue, Gilbert, Applied Psych. Moral 3 J. Soc. 345 Smith & Decisions,” “Biasing Publicity Effects of Pretrial on Judicial 2 J.Crim. Justice (1974); Chaffee, Publicity Prejudice," 163 Tons & "Pretrial and Juror 43 (1966); Q. Montgomery, Journalism 647 Wolf & of “Effects Inadmissible Disregard Judgment Evidence Level of Judicial Admonishment to On the Jurors," Ellman, (1977); Applied Psych. “Impact Mock J. Soc. Oros & Judge’s Upon Charge Cautionary Rape Instructions Jurors' Decisions: The Trial," Broder, Representative (1977); Psych. Research Soc. “The Univer Chicago (1959). sity Jury Project,” foregoing 38 Neb.L.Rev. 744 studies suggest empirical strong proposition rather evidence exists for the jurors by prejudicial publicity carry are influenced bias into deliberations, regardless court’s instructions or their sincere belief in impartiality. their own *67 Moreover, capital in a prosecution, 62-63. murder the loss or right is significant of this more ordinary diminution than in an may trial. The Court right criminal suffer in an the reduced v. case, e.g., supra; State Singletary, ordinary it should not it when a countenance defendant’s is at stake. life dire, Finally, the voir as related to the deficiencies defend- that the trial requests ant contends court improperly denied his cause, challenges publici- to hear for due exposure pretrial of the ty, hearing juror out of the prospective being who was challenged. challeng- Defendant asserts act openly that the ing juror’s against claim of impartiality prejudiced juror the defendant. picayune captious complaint.
I do consider this a or Cross, prospective seventh juror, questioned, When the Mr. impartial he he would be he although prejudicial said had read The court ask news stories. refused to defense counsel’s follow-up questions challenge juror or allow him to at cause, challenged juror side-bar. Defense counsel then for challenge jurors, presence, his which was denied. Two more fifteenth, Herron, posed Mr. and Ms. fourteenth Allocco problems. requested be al- similar Defense counsel that he on at side challenge lowed to state his reasons for the record bar, presence jurors. requests of the hearing out The denied, challenges cause. subsequent were as were the alleged Defense counsel then moved for a mistrial based ruling as improper challenge, on the well as the asserted cause prejudicial challenges jurors. effect of made before mistrial, counsel denied and defense trial court the motion for a subsequently jurors. of these peremptorily excused each rulings discre-
Concededly, to the were extent the trial court’s that the court was tionary, defendant must demonstrate Smith, this discretion. See State in the mistaken exercise (1970). Here, an N.J. it is clear there was abuse *68 took position consistently discretion.13 The the in defendant pretrial throughout the motions and voir dire that there were many prospective jurors who knew of defendant’s link to at respect least other to four murders. With the examination of jurors, required express, three defense counsel was to in their presence, believing his for they impartial reasons could not be though they obviously they even believed that could be. effect, argue defense counsel was jurors forced to before these that he did not them they find credible and that should not be Moreover, stating believed. defense counsel curtailed in was compelled his objections present position elliptically and to his in jurors reinforcing order not to offend the and avoid to what jurors already suspected the or knew the about murders. Fi- nally, guarded defendant to in in had be his remarks order to the they publicized minimize risk that press. would be in the illogical It is imaginary psycholog- to conclude that the conditioning ical resulting challenge a may from act subcon- sciously impede juror’s ability solely to a to reach a verdict upon Simon, the evidence before him. See State v. 79 N.J. (1979). Here, 199-202 the trial court’s decision to hear cause challenges open presence in in challenged court of the juror negative adds to this influence. The evidence of mistake 13In v. Smith, State 55 N.J. the first time counsel asked to make supra, challenge challenge for cause at bench he was to do so permitted challenge sustained, time second the trial court told him to make his court it and was also sustained. On open this Court observed that the appeal, knowing ruling trial court, instance, its the second probable have may challenges wanted save Later, time. defense counsel made for cause requesting without at come the bench. When one permission point challenges counsel said that he felt to exercise because compelled peremptory challenges the court had instructed him “that be for cause could not heard at judge side bar,” the trial said Later, "I did not that." Id. at 483. when say again asked, counsel he was to come to bench for permitted purpose making challenge for cause. This Court concluded that the trial court had general ruling prohibiting challenges not made any bar, cause at side subject prejudice was within discretion, the trial court’s and that no to the defendant had been trial case, shown. Id. In this court not barred only challenged jurors side bar conferences, it refused to excuse for cause. agreed confirmed the fact that the State with defendant that challenges presence such for cause should heard out of the jurors the court eventually relented. challenges In my view defendant’s for cause were erroneous- denied; ly prejudice juror the incremental attributable to chal- lenges presence challenged juror merely for cause in the inadequacy adds to the reasons for reversal to the attributable of the voir dire examination.
D. sum, abundantly it is clear that there was massive detri- pretrial publicity prejudicial mental and trial so it was created the realistic likelihood that defendant could not obtain a by impartial jury. trial a fair and The of defendant’s violation State, rights egregious constitutional was more the because through prosecutor, intentionally encouraged the and added to pretrial publicity. only the This not underscores the violation right, of the constitutional but also influences the nature of the relief to which defendant entitled. Defendant was entitled change under the to circumstances of venue. venue, change
Since the trial court did not order a the right impar- violation of defendant’s constitutional to a fair and jury unrepaired. procedures leading tial went The to em- paneling jury wholly of the were ineffective to overcome the impact prejudicial publicity surmount the realistic or to jury fairly impartially try likelihood that a could not and appears defendant. It further that defendant was forced to challenges peremptory jurors exercise all to excuse who should by have been removed the court for cause and that this was opportunity denial of full to secure a fair and defendant’s impartial jury. The risk of was further increased bias improperly compelled instances in defense counsel to which argue presence of grounds for in the the excusal for cause jurors. reasons,
For these I conclude that defendant did not obtain a impartial jury. trial before a fair and His conviction of murder and death sentence must be reversed.
II. Court The reverses the defendant’s death It sentence. deter- seriously prejudiced mines there were several errors that sentencing proceedings which mandate a reversal of the penalty. death It may nevertheless concludes that defendant again be retried as he may exposed to sentence imposition Court, penalty. my opinion, of the death neglects apply principles jeopаrdy constitutional double fairness, precepts of fundamental which under the circum- presented, purposes seeking stances bar a retrial for imposition penalty. of the death trial, penalty phase
At prosecutor sought have the consider aggravating whether two factors had been established the evidence. One aggravating factor was prior murder, c(4)(a); defendant’s conviction for section vile, other was that the outrageously wantonly murder was or inhuman, c(4)(e). respect aggra- horrible section With to the c(4)(a), vating prosecutor factor under submitted evidence *70 a copy certified of defendant’s 1959 murder conviction. The prosecutor offered no ag- additional evidence to establish the gravating c(4)(c), upon factor under the relying evidence that guilt-phase support had been adduced at the of the trial. In of aggravating c(4)(c), prosecutor argued factor the in summation that four bullet aggravated wounds to head constituted an battery. sentencing trial,
At phase of the the defense focused entirely establishing mitigating present- factors. Defendant ed psychiatrist complete a forensic who made had a evaluation diagnosis during of three in defendant visits October and November, 1983. He testified that defendant suffered from a personality personality severe disorder as known anti-social He stated that as a result of this disor- paranoid with traits. der, wrongful- capacity appreciate lacked the defendant requirements his to the ness of his acts or to conform conduct summation, counsel stressed de- of the law. On the defense history. personal mental illness as well as his fendant’s explained that charge jury, to the the trial court its doubt, aggravating beyond found a reasonable factors must be mitigating that a jury only that the had to be “satisfied” but jury, The court further instructed the over factor existed. objection, mitigating of the factors had to prosecutor’s that all However, against aggravating proved. weighed each factor jurors in order for the death the court did not instruct the imposed' beyond a penalty they to be must find reasonable outweigh mitigating aggravating doubt that factors out, charge majority points factors. As the the trial court’s respect proof weighing and the with to the burden error, requiring aggravating mitigating factors was reversal of at defendant’s death sentence. Ante 53-67. noted, prosecutor, position as took the that defendant guilty capital deserving penalty murder the death be- aggravated battery in the course of
cause he committed an victim, c(4)(c). thereby satisfying The trial court murdering his factor, aggravating find instructed the that to this or conclude that the murder “involved either torture must savagely indicating depraved mind or ... was so conduct adjectives wantonly, that the vile outrageously cruel and violent words, justified.” In other the trial or or inhuman are horrible statute, simply language reiterated the without court Moreover, the did not explanation. court further definition aggravated battery. explain what constitutes hour, deliberating jury requested for an an addi- After c(4)(c). The court explanation aggravating factor tional c(4)(c), satisfy only one of the three replied that order to conditions—torture, mind, aggravated bat- depravity of or an hours, jury re- After several more tery—had to exist. *71 jury charged turned verdict. The of found that both aggravating beyond factors existed a reasonable doubt. As to factors, mitigating it found that the defendant was under disturbance, the influence of or extreme mental emotional but capacity appreciate wrongfulness that his of his act or to conform his requirements conduct to the signifi- law was cantly impaired as a result of mental disease or In defect. addition, found that relating another factor or factors to the defendant’s character or record to the circumstances of the offense also constituted mitigating Finally, factor. jury found aggravating that neither outweighed by factor was mitigating the combination of factors. Consistent with the trial instructions, court’s this verdict led to a sentence of death. The theory prosecution in this case was that aggravating c(4)(c) factor of was satisfied because the murder accompanied by aggravated battery. аn This Court now “aggravated battery” rules that physical means serious harm pain or severe precedes victim means an act that death and does not serve to cause instantaneously. death See Ramseur, supra, State v. at N.J. 207-209. The Court concludes that aggravated evidence of an battery was I agree. insufficient.
Contrary
contention,
to the State’s
under the facts of the
present case,
evidence
four bullet wounds to the
head
aggravated
insufficient to establish an
battery
purposes
determining capital
Georgia,
murder.
Patrick v.
449 U.S.
(1980),
Supreme
S.Ct.
101 Nevertheless, the rules that there sufficient evi- Court was that murder with to show the defendant committed this dence mind,” satisfy aggravating this would “depravity of and that Ramseur, v. State c(4)(c). of companion In the case factor of supra, “depravity explains that 106 N.J. majority consist of states of mind or mental condi- mind” can several tions, any torture or an and can be found without evidence of case, Id. battery. at 208-210. this the Court aggravated existing only mind as “the depravity define of when would killing enjoy the victim the act purpose defendant had in was to killing other Ms. killing itself and that he had no reason for of to kill.” Ante at 50. For wanting Olesiewicz other than Ramseur, dissenting opinion in I expressed my in reasons “depravity that definition of of mind” believe Court’s applica- utterly vague incapable of reliable and consistent J., Ramseur, supra, (Handler, 106 N.J. tion. at 400-402 may, under of dissenting).14 Be this as it the circumstances case, jeopardy I it am satisfied that would violate double this purpose of retry fairness to defendant for the and fundamental impose penalty. seeking to death original “depravity mind” 14The Court’s definition of of does not follow Georgia required of the murderer courts a state mind that led rule of the battery aggravated See an on the before death. torture or victim to commit 420, 431, 1759, 1766, (1980). Godfrey, 64 U.S. S.Ct. L.Ed.2d 408 446 100 Instead, interpretation closely construc- more resembles Florida's the Court’s pitiless or See State "a conscienceless crime.” tion of its "heinous” factor: law, However, Dixon, (Fla. 1973). even under the murder 1 Florida 283 So.2d State, might So.2d “heinous.” In Jackson v. case not be considered in this (Fla.1984), up McKay picked him in the for drive and shot the defendant back; bag put McKay plastic placed trunk him in the in a the defendant body again McKay later and the apparently he was was shot while still alive. McKay bridge; remained dropped contains no evidence that off a record held that than a after the first shot. It was for more few moments conscious aggravat- incapable suffering contemplated McKay extent this to the State, (Fla.1983), ing the defendant In Clark v. 443 So.2d circumstance. died; elderly no there was head and she later a disabled woman in shot shot, being any pain. or The Court after that she was conscious evidence anticipation impending helpless is insuffi- death for an instant ruled aggravating establish this factor. cient to theory The State’s was that the murder was committed under circumstances that demonstrated murder was out- “[t]he vile, rageously wantonly or horrible or inhuman it torture, depravity aggravated involved battery mind an victim,” c(4)(c). constituting aggravating factor prosecutor primarily exclusively if upon relied evidence “an aggravated battery” to establish that crime was “out- *73 vile, rageously wantonly or majority horrible or inhuman.” The finding sets aside the verdict that the murder was out- vile, rageously wantonly or horrible inhuman because it was upon aggravated battery. based insufficient evidence Nevertheless, the Court authorizes a retrial of to defendant again try the State once to enable to that establish the homicide c(4)(c) capital was a murder. permitted retry
The State should not be
to
the defendant
a
as
crime
to which we have ruled the evidence at the first
trial
jeopardy
was insufficient.
principles clearly prohibit
Double
retrying
the State from
a defendant
for the same crimes based
upon evidence that was itself
firmly
insufficient. This is
estab-
See,
lished as a matter of
jeopardy
federal double
doctrine.
Ohio,
e.g.,
Brown v.
161,
U.S.
2221,
432
97
S.Ct.
53 L.Ed.2d 187
States,
(1977);
Blockburger v. United
299,
U.S.
284
52
S.Ct.
180,
(1932).
76 L.Ed. 306
We
similarly recognized
have
the bar
jeopardy against
prosecutions
double
successive
for essen-
Tropea,
State v.
tially
(1978);
the same crime.
N.J.
78
309
Lynch,
State v.
(1979).
N.J.
79
327
Double
jeopardy as
matter of federal constitutional
law also
apply
has been held to
specific
to the
context
sentencing phase
of the
a capital
Missouri,
Bullington
See
murder
trial.
451
U.S.
S.Ct.
(1981).
To allow State c(4)(c)capital homicide as murder would be to lish defendant’s object the same retry defendant for crime indisputable I under our prosecution. first think it is capital penalty aggravating murder-death statute the factors capital elements of the crime of murder. Unless a are essential murder is shown to have been committed under circumstances constituting “aggravating penalty an factor” under the death statute, “capital it not constitute murder” for which the will may imposed. pointed my I out in dissent penalty death As aggravating as ing opinion in Ramseur: “The factors act form, murder]; they specifications capital of the class [of effect, defendant must have committed elements offense Ramseur, class.” supra, come within at N.J. added). (Handler, J., dissenting) majority itself (emphasis aggravating constitute elements of recognizes that the factors murder, capital functionally aggravat “that the offense of indistinguishable from the elements ing factors in the Act are *74 Ramseur, supra, of a crime.” at n. 27. 106 N.J. 226 See 534, (1976); State, 224 386 v. v. 236 Ga. S.E. 2d State Arnold (1981). Silhan, 223, “Capital murder” 275 450 302 N.C. S.E.2D degree quality culpability. The level unique a or of embraces by the culpability capital for murder is defined quality or of Hence, the of Criminal “aggravating factors.” under Code offense”, of an aggravating factors are Justice “element[s] the “conduct” or “attendant by defined the Code to mean required culpabili kind of the circumstances” “as [establishes Goodman, 92 43 v. N.J. ty.” N.J.S.A. 2C:l-14h. See State (1983). jeopardy, the subse- principles of double
Under well-settled upon same that is based the quent prosecution for an offense prosecution in an earlier is barred. See State elements involved (1983). is no material differ- 92 573 Here there Dively, v. N.J. as to of ence the elements the be crime that will retried—it is as capital aggravating c(4)(c). murder defined the factor of The State argument should not succeed in its that on retrial it on rely “depravity seeks of evidence of mind” rather than of “aggravated c(4)(c). battery” to establish That cannot make a difference in this To case. the extent the evidence relied earlier on was found to support aggravating be insufficient to an murder, capital factor that would elevate murder to the result acquittal must be deemed to been penalty, have an of death surely barring a retrial to that aggravating reestablish factor. Missouri, Bullington supra, See v. 451 U.S. 101 S.Ct. 1852, 68 270. With respect L.Ed.2d to the contention that the retrial, rely State will on other—sufficient—evidence on a answer to this assertion is that retry the State still seeks to crime, namely, e(4)(c) defendant for same murder. Dou applies jeopardy applies ble here because it bar a successive prosecution of either the same crime and or a crime that has the same elements of the earlier offense. Dively, See State v. supra, may 573. It be prove N.J. evidence to that a “vile, vary. murder is or may horrible inhuman” It consist can proof torture, mind, depravity aggravated or bat tery. Nevertheless, crime depending itself not different evidence; c(4)(c) words, in in capital differences other mur der has one “aggravating but essential element or factor.” Thus, just may any as State in retry other context crime, defendant same the State should not cаpital prosecution context of a given opportunity murder an retry purposes defendant for establishing aggra the same vating factor. amI convinced that the views articulated Justice Marshall — Arizona, -,
in his dissent Poland U.S. S.Ct. (1986), express 2d 123 principles L.Ed. of double Constitution, jeopardy apply, that must under our State in a prosecution capital There, murder in these circumstances. as *75 here, aggravating specifications factors function as of class and, capital effect, murder in form elements the offense. Supreme resentencing hearing Court held that a in a capital by case is not barred jeopardy appellate double when the rejects aggravating court the sole factor found the sentenc er; the Court ruled that the failure of the sentencer to find alleged aggravating “acquittal” other factors an is not of these dissent, jeopardy purposes. factors for double Justice Mar shall stated: “In no other circumstance would the Double Jeopardy Clause countenance the offer of a second chance to judge theory upon the State and the trial to find a better which at-, Id. 106 S.Ct. 90 L.Ed. to base a conviction.” at 2d (Marshall, J., dissenting). at 136 ourselves not We would Tropea, in such circumstances. State v. countenance a retrial supra; Lynch, supra. State v. circumstances, principles jeopardy
Under these of double and prohibit trying fundamental fairness from the State defendant again c(4)(c) attempt capital to establish that the murder is a State v. expressed offense.15 For I in reasons similar to those case, contrary 15Under the facts of this I think it would be to fundamental subject hearing, sentencing fairness to defendant to another even if the State request penalty only prior were to base its for the death on the conviction factor, c(4)(a). aggravating c(4)(c) regarding The Court has found that the trial court’s instructions aggravating improper factor did were and that the evidence at the trial c(4)(c) support jury’s finding aggravating jury factor. The did find c(4)(a) aggravating applied this factor factor also to defendant fact, however, outweighed by mitigating alone was not This would factors. not be determinative on a retrial as this Court has held that the State must higher proof: aggravating outweigh meet a burden of that the factors must Also, jury’s mitigating beyond Ante at 53. factors a reasonable doubt. finding potentially prejudicial must be considered to have been tainted “the unsupported influence that an instruction could well wield delibera- Christener, (1976). tions." State v. 71 N.J. taint, jury may weighing regarding Without this have reached a different mitigating remaining aggravating factor. The trial factors the one finding deprived opportunity court’s error thus defendant of an to secure improperly penalty. that could have avoided the death When the State acts case, sentencing phase capital requires that the fundamental fairness being subject again State not be allowed to the defendant to the risk *76 Ramseur, I would bar a seeking retrial the death sentence and judgment enter a imprisonment. of life
III.
I
already expressed
length my
have
at
reasons for concluding
capital
that the
penalty
murder-death
statute is unconstitution-
Ramseur,
al.
supra,
See State v.
In this case compelling additional reasons call for such rever- sal. The highly prejudicial massive pretrial publicity, and trial unjustifiably aggravated by prosecutor’s misconduct in case, publicizing the impossible rendered a trial a fair and impartial jury in vicinage. The court any failed to take effective measures prejudice to cure the occasioned Further, publicity. because of the errors pre- involved in the sentation of evidence and instructions in the sentencing phase trial, defendant, grounds jeopardy double fairness, and fundamental again should not be retried for purposes of imposing the penalty. death significance
The
impels
of this case
me to make an added
observation. Murderers like Richard Biegenwald pose the
greatest
fairness,
challenge
impartiality
to the
integrity
judicial
our
system.
terrifying personalities
of such mur-
derers, their
compulsions,
irrational,
inscrutable
seemingly
their
random
victims;
actions take
they
more than their
exact a
debilitating toll
society, reducing
on all of
nothing
the most
right
cherished
public
of life
A
perception
itself.
legal
that our
system leaves society unprotected against
people,
such
or fails
register
society’s outrage
actions,
at their
undermines both
(1987) (Handler,
sentenced with
Ramseur,
death. See State v.
This kind of puts judiciary supreme case tests. It exposes judicial judicial principles. attitudes as well as It principles enough. shows that noble are not Principles can be *77 by betrayed Principles a want of conviction. serve us law only application; wrong applications their are no than better unjust principles. the principles Here that we summon are recognize importance those that of individual life and the life, scrupulous protections need a life—any before includ- ing unrepentant of an by that murderer—can be taken protection State. such impartial One has to do with a fair and jury. The assurance a fair impartial jury easy Vigilance requires community achieve. outrage over a defendant’s crimes not be allowed to infect the that will fate, deliberate the defendant’s particularly where life is at by guided stake. are that principle We here. We in its falter application, however, we a when allow defendant be tried before a which risk of prejudice is so real. Justice is by right disserved as much failure principles as a follow recognize failure to them.
APPENDIX excerpts jurors There follows of the dire of who voir nine prior knew about defendant’s conviction other murders but accepted by expressed were court on their trial based belief they impartially. could examina- deliberate voir dire jurors tion of these is recounted in detail to illustrate the inadequacy light dire in of the adverse voir massive pretrial publicity. and trial
(a) Ms. Herron originally knowledge Mary Herron stated that had some she recognized the case and name in defendant’s connection with she read in Press. Asbury what Park reading anything Do recall in the [THE you COURT] Q: newspapers you Biegenwald’s background?
told us about Mr. prior A: Yes. There was some mention of that. [THE JUROR] being What recall mentioned? Q: you you A: That he had been arrested and also in for a crime his childhood previously he had—I think I have read that he had been institutionalized as a child or may young person. questions The Court then asked Ms. Herron seven to determine knew; whether she she would affected what she main- tained that she would not and volunteered that she didn’t everything newspaper believe she read in the and that there every Story. were two sides to At the end of Ms. Herron’s voir questions dire defense counsel asked for additional about what else the veniremember recalled. anything reading If there is more about [THE COURT] Q: recall about it in you tell us. newspapers, this About case? [THE JUROR]: particular Biegenwald. MR. Mr. DIAMOND: About original A: I did hear radio some on the time after the arrest, the incident on Staten Island I heard the radio news. Something on Staten Island? Q: *78 A: Yes. But that’s all. trying everything to I was include Q: my you have that questions you having Biegenwald. have heard to do with you something pertaining,
A: No. It was like a second time I really heard you know, him. What did then? Q: hear you digging A: In fact I on the turned tail end of of that there was some it, in Staten Island and the name was mentioned, but— Anything again Biegen- Q: that have been mentioned then about Mr. may background? wald’s A: Not at no. that time, background And the that that Q: did hear was which read in only you you that have to us newspaper repeated you already? A: Yes. right. affecting judgment, All The I asked Q: before about I questions your anything mean them to include have ever heard on the certainly radio or you read in the Did that understand them you way? newspaper. A: I did. Yes, THE COURT: Diamond? Mr. Okay, just MR. DIAMOND: I’d like to know a little bit more about what she knows as digging to the in Island, Staten Honor. your challenge THE COURT: I won’t If wish to exercise a inquire. you cause, for I hear will that. In open challenged court defendant Ms. Herron for on cause ground give that she would other consideration to crimes committed the defendant based her on statement about the diggings on Staten Island. The summarily trial court denied challenge. peremptorily Defendant Ms. excused Herron days two later.
(b) Mr. Forse Forse, articles, James Jr. had although read in recently, not the Asbury Park Press about the case. reading? What do remember [THE COURT] Q: you What sticks out in your things
mind? There were lot of in the but what do you remember? paper, Well, A: the case in Ocean I [THE JUROR] was one that Township remember mostly. What do remember of it? Q: you girl being A: About the found in back of the—the fast in food Ocean place Township. And do recall of the names that were mentioned in Q: you any connection with the newspapers? girl, Fitzgerald A: the name of the and I Only think and the defendant. Biegenwald’s background Do recall details Mr. about Q: you any you may read in have the papers? No, A: not too much I don’t no. think, I recall the fact that he had Yes, been convicted and served time for a crime. trial questions court then asked Mr. four Forse to deter- mine whether the juror publicity what knew from the would any on have effect his Mr. deliberations. Forse maintained that challenged he would not be affected. Defense counsel Mr. grounds Forse cause that he knew about defend- prior although going ant’s conviction defendant was testify specific he knew facts this case from the that, newspaper. evaluation, juror The court said its *79 sincere, thought that he has and about it that that’s the best can being. argued that be asked of a human Counsel that the juror ignore would knowledge. Alternatively, not that defense requested inquire counsel that the court further about the publicity prior agreed and nature of conviction. The State
although knowledge prior it that a maintained conviction is excusing grounds juror not for cause.
BY THE COURT: Mr. we are interested in one and that is said Q: Forse, area, have you you Biegenwald read in the that Mr. had a conviction. prior newspapers Anything more than that in mind? specific your A: that it was for murder. Only know that’s that and it. Do Q: Now, know think that is you obviously you you going judge charge, charge to affect him in this which is also a your ability of murder? A: I don’t think so. No, That’s a know. Q: consideration, very important you (Nodding affirmatively.) A: forget, juror Before I chance Q: if are selected as a per you this ultimately there case, should never discussions of that fact any by anybody
room. A: I understand it. something Unless the fact is that comes out in this Q: courtroom. A: Yes. just it Because otherwise rumor. Q: A: Um-hum. You understand? Q: (Nodding affirmatively.) A: right.
THE COURT: All With all the discussions in mind that we have had on grant challenge I will record, for cause. peremptorily Defense counsel excused Mr. Forse later that day.
(c) Supple Mr. Supple Michael stated that he had read about the case Daily Register months before in the and heard about it on the commuting radio to and from work. From those sources details do [THE COURT] Q: Okay. what recall? you There is a lot of stuff in the thrown Some stuff hear on the radio. paper. you hearing? But what do remember you hearing IWell, A: remember had [THE arrested Mr. JUROR] they Biegenwald and that Staten he and Island there was imprisoned [ ] up gentleman some a burial whatever, burial area and a who was with type him, degree, just an to some or were— relative, accomplice parent they Biegenwald, something had Mr. about—I
they believe it was apprehended pregnant something along his wife, have her and she was detained, they those lines.
Ill diligently, something I didn’t follow it but really like [ ] that. Biegenwald’s background Do recall details Mr. Q: you any about that you may have read or heard? other he No, A: than lived in and—no, Park I Asbury don’t recall really too much of sir. it, The trial then court Mr. Supple questions asked four to deter- mine whether what Supple Mr. knew about the defendant would affect his juror deliberations. The maintained that it would have no effect. Defense requested counsel probe juror court about his reference to the defendant’s being imprisoned and about the burial area in Staten Island. Defense counsel also challenged juror indicated that he for cause, which was denied. THE BY COURT: discussing the course what Q: [] had read in the you or had papers Biegenwald heard mentioned that Mr. been in you had Had seen prison. you
that? No. A: I meant he was taken to prison. Taken to Q: prison— When A: he was apprehended. thought I in which used Q: context it. you Okay. something In Staten Island mentioned a you about burial. What do you recall about a burial situation Staten Island? Ugh, thing A: I rеcall was that and found bodies. only they anything Did something see on television or was that Q: you read in the you
newspaper? IA: believe it was sir. strictly newspapers, something And then also mentioned in with Q: connection you about accomplice. What do about recall that? you could Well, A: what it be considered as an is someone accomplice who—who Biegenwald Mr. was affiliated with. Someone who him Q: helped out? A: Someone who him an out, helped accomplice. That’s what meant that? Q: you sir. Yes, A: And do recall name? Do associate name with that Q: you you accomplice? No, A: sir. You do not? Q: (Nodding negatively.) A: right. challenge THE COURT: All I will rule that the Okay. cause be denied with connection Mr. Supple____ peremptorily following
Defense counsel Supple excused Mr. day.
(d) Ms. Ellen Carroll *81 originally knowledge Ellen Carroll stated that she had some recognized of the case and the defendant’s name and face from pictures captions Register Red Bank and in the or the Star-Ledger. also She recalled that wife a defendant’s had baby. nothing Now, recall little or [THE COURT] Q: you about what say you you
read. What do if I to recall, were you press details? you your memory A: reading It’s hard to from I [THE JUROR] what recall from separate and what I have heard since I have here. been to do then Q: that and we will ask Try what have heard since you you you have here. to been But make try first. separation girl young A: if I’m not mistaken there is a Oh, in her teens that was I digging murdered. remember—I recall a were paper. picture They up having going about and Diane But yard other than into the baby. nitty gritty I it, wasn’t in it. really involved Biegenwald’s background? Do recall reference Q: to Mr. you specifically any A: I don’t. No, go Now, Q: what were told and you say you what heard when here. you you got morning. That means after here did What hear? you Monday you A: I heard that he been had arrested for it. For what? Q: Now, wait minute. was shot before. Someone—somebody was Somebody murdered before. anything? What else did if Q: hear, you A: He was on at the time that this You so parole hear much. So happened. goes through— much right. all so Well, The much that did Q: hear that before the you heard, you jurors brought began telling were this courtroom and I them up about the case? talking A: I think were No. about it we before were even selected for they coming because someone case case, said this up. And that is when the Q: discussion arose? A: Then course has everybody input. thing? A buzz buzz kind Q: A: Um-hum. questions
The trial court then asked Ellen Carroll two to learn juror whether what she heard in assembly room or what newspapers she read in. the would affect her deliberations. not, She it volunteering maintained that would that she would have to make her own decision. dire,
At the end of Ellen Carroll’s voir defense counsel requested questioning prior further about defendant’s murder conviction, she jurors panel, what learned from other on the yard her being dug up statement about the to see if she knew body. last, there was more than Except one for the the court agreed inquire.
BY THE COURT: saying You Q: mentioned that when first came here [] were you people something Biegenwald talking about the case and started about it— A: Um-hum. (Continuing) Biegenwald mentioned Q: Mr. had another somebody conviction, or what did they say you? Well, A: said—I had can’t it word they for word—that he repeat had been trouble before. something You said about Q: parole. A: And *82 he was on when this evidently parole happened. right. just telling I don’t if these Now, know facts are I’m what I heard. you right. something All Q: Once hear it is you there. A: Um-hum. having juror Do think that heard Q: that if sit as on case you that, this you might feeling before the case starts even have a did you he maybe something as far this is as case it is concerned, so? maybe A: I’d No. have to hear the facts for myself. Q: Okay. A: To make I I own As have heard so much. You hear so my opinion up. say, just guessing things. much. are at a lot People So much this Q: about case? anything? A: or About this case case or any do Q: talk. People
A: um-hum. talk, People saying But are it Q: you us whatever was that heard you you could put aside? thought A: I’d want to hear it from someone in someone who I authority, knew. ifAnd didn’t hear it here in this courtroom Q: you wouldn’t, would you, you allow it to or other intrude somehow ultimate decision? your A: I’d No. have to hear it from someone who what are knows really they talking about. In this Q: courtroom?
A: Um-hum. juror outside this courtroom cоncerned, Because as far as is anybody Q: foggiest talking idea of what are about.
hasn’t they right. A: You are questions counsel asked for further because the
Defense much.” The court refused and denied the juror had heard “so challenge grounds juror for cause on the was not position. peremptory ex- precommitted any The defendant following day. cused Ms. Carroll the (e) Ms. Patterson Asbury Park Press that the
Sylvia Patterson knew from the defendant was accused murder. hearing anything seeing Do recall ever on the radio or
[THE COURT] Q: you anything Biegenwald on television about the matter? A: Yes. [THE JUROR] seeing? What do recall
Q: you A: Just the Staten Island incident where discovered whatever it was, they you just know. I don’t watch the news that much. It was on one of And, well, see, caught going the channels. It was there and it attention and your you keep it’s not— Do recall other from have details what have read or what Q: you you any you have seen on television other than what have told us so far? may you A: details mean, know— By you you as to what or what he is to have
Q: done, Specifics happened supposed thing, sort of whatever the said as remember it. newspapers you I A: ’cause don’t even remember how it is he is No, many people supposed something it’s once it off. I know, and wore didn’t even think of it have—you again. Do as a that when someone is accused Q: you person accept proposition committing a crime, as far as the law is concerned it assumed didn’t do it they and that the burden is on the State to that he did do it? always prove *83 A: Yes. You that?
Q: accept
A: Um-hum. juror questions The court then asked the two to learn whether affected; any her she denied deliberations would be effect. party challenged Ms. for Neither Patterson cause. She was peremptorily following day. excused State (f) Ms. H. Johnson
Hilda Johnson about the radio knew case from newspaper connect but did not defendant’s name with it until got she to court. did and hear on What read in the the radio [THE COURT] Q: you Okay. paper
or what do remember? you happenings. A: About the [THE JUROR] happenings, When what
Q: details do remember? you say you things finding A: About he was various—uh, connected them with; people that were buried. Biegenwald? But didn’t Q: associate that with the name you didn’t—you A: No. Biegenwald nothing meant
Q: you?
A: No.
[********] background So remember Q: that do of the details of the Okay. you any reading hearing from it the radio? person newspapers background.
A: I don’t know about the trial juror The court then asked the questions two to learn affected, whether her would she deliberations but denied the publicity any would effect. nor have Neither the State cause, challenged juror although defendant for the court specifically challenge did not whether ask either wished for fact, challenge anyone cause. the defendant did not for Judge cause after juror accepted. the 36th McGann When for challenges, party simply making asked each alternated their time, every peremptory challenges; challenge until that bar, cause had side defendant been denied. At both the requested questioning and the State defendant further about juror’s penalty “finding the death and the statement about bodies,” respectively. Court cut defense counsel off for “being ruling prior he between a nonsensical” when asked for a murders,” juror’s prompted “mass fur- statement about which questions questions court’s more ther and the refusal to ask juror “finding per- after this mentioned Defendant bodies.” emptorily day. excused Johnson later that Ms.
(g) Hugo Ms. Hugo actually jury. said Michelle served on She knew nothing appeared jury duty about the defendant before she prospective jurors. but learned details from other morning jurors After came here did of the you [THE COURT] Q: Monday any jurors before were and before sat did down, assembled they they any this talk about case? were a heard A: There few. I have mentioned that JUROR] name, [THE picking jurors, heard the trial were whatever. they they [] supposed itself, never—none of them talked to me about the trial what had [] They just anything. thing or name mentioned the and then the I They happened only was what told when in the other And heard had we were room. then of you course roused and— [ ] up people IWhat told when were in the other and I Q: you room, roused you up people? A: Um-hum. was that? What Q: A: When told what case was about. you ‡******* guess, talking I
Then started about it. know, you they After I told them to talk talked about it about it? Q: they Yes, A: yes. did What Q: they say? Well, A: all had different think stories. None them—I don’t they any straight anything. talking them all had it or was really had—[] Everybody [] things. about different One that. One heard this. heard person person They anything.
never—the stories matched really—never really waiting And this was in other when Q: courtroom were there? you A: Yes. did What hear? Q: you girl saying reading A: One was how she was about it in the [ ] [ ] newspaper, anything and a us had whatever, said we don’t know about it well, couple [ ] being that we are not to talk about and I ] said, “Well, she [ supposed it[ ] thing,” girl girl.” this, heard and the And that, other “about this this it [ ] just—and anything was then it I like—“Well, was I’m not so won’t say say anything.” Can for us? Q: you person identify A: her Um—Ruth—I don’t know last name. Ruth?
Q: A: Yes. saying And what she recall? Q: Okay. that you something A: she said he Um, about how he how had killed them. How he [ ] gone luring getting go had about like them or them to with him or—and, [] ugh—oh—and something, police about a friend of his or how he went to the [ ] *85 and told them about what he knew. or whatever only talking in that fashion or were others Was this Ruth one who was Q: giving little tidbits? others, it, yes. A: There were others that knew they saying I’m sure there were others that knew about it. What were Q: about it? They Ugh, they comparing they more or less read. were— A: were what “Well, this,” and, “Well, newspaper newspaper I read this and this said I read they just comparing they one. This one said this.” And were like what this knew between each other. any they comparing any Did of those notes that were of the little Q: Biegen- they contributing anything to do with Mr. information were have background? wald’s No no. A: anything you gave you you Is there heard them that a mind set which Q: might your ability judge fairly you feel affect this case on what hear in this courtroom? Because, um, rarely go say very newspapers I will A: No. what the before prejudging people. very pick up I a trial. I don’t believe in don’t—I seldom a newspaper, newspapers because all different have different stories and it would you clearly you go by just—it allow to think if were to what wouldn’t [] facts, really everybody says, nobody has the true the true honest facts because anything. about the trial or you trying Let me ask this: This case that we are concerns one incident. Q: Apparently people saying what some of the were there referred to other incidents. A: Yes. might you incidents Do think the fact that there was reference to other Q: sitting capacity your judgment on this case? have a to affect No, dealing you just are with one. The other ones aren’t—don’t A: because anything to do with this case. have you say discussions of Ruth or whoever How extensive would were these Q: comparing else was notes with Ruth? They—they brought things A: the other into it. long did that last? How Q: until—well, day sitting by guess just when we were A: I that was the first and, um, After had found out what the case was about after a ourselves. we said, “Ruth, going couple of us who hadn’t known about what was on had [ ] too, it,” whatever, got you’re supposed I she the idea to talk about think [ ] not to talk about it or whatever. big you say? principal mouth from what She was the Q: sitting. A: Where I was you put right. you you All heard would be able to But feel that whatever Q: juror? your judgment you aside and not allow to affect if sit as a right.
A: That’s party challenged Hugo peremptorily Neither Ms. for cause nor her. excused Kelly Ms.
(h) Kathy Kelly nothing Biegenwald knew about Mr. until she Asbury Park Press Sunday, read the article Novem- 13, 1983. ber case, Now, knowledge you what have of did when did COURT] Q: [THE you acquire knowledge and from what source? Sunday Asbury A: It was from the Park Press. Someone called [THE JUROR] up they picking jurors laughed and said are me for murder trial I anything. my point I hadn’t heard mom because about So then made it paper in front me so I stick would read article so that I wouldn’t be basically. briefly, always pass read I considered So I it but didn’t—I sort paper anyway. over that information in the *86 put paper you. mother in Your front of Q: you reading paper? doWhat remember in the that, Biegnewald supposedly somebody, A: I read Mr. um—that talked to Asbury Press, they body things Park then and later found the other happened. hand, really go had But of the case at it didn’t into much. go background Biegenwald? it into Did at all the of Mr. Q: Something that—something prison A: about about he had been in at one
time. youDo recall for what? Q: something A: For murder of a District Prosecutor or like that. court Kelly questions The trial then asked Ms. two to learn her whether deliberations would be affected what she knew. no everyone She said and volunteered that she believed was crime, proven guilty particular innocent until presented. depended on what court was then continued his questioning. right. newspaper something All Also in the was there about other—other Q: things? others,
A: There were about but I didn’t want to read the I didn’t. I rest and stopped reading sort of it. what? Other Q: going A: were to be There about other murders that were—that was tried succeeding jury. this Okay. you charges against Then are aware there are of murder Mr. other Q: Biegenwald? Right. A: you you juror case, Do feel judging Q: that if were a on this case this that that background might your information about ability judge his affect this case? Um, will, guess—nobody A: I don’t exactly feel it but—I—I they knows how going they hearing testimony. are to feel when start asking No one ever Q: does. But what we self-appraisal. are is an honest No, going A: I don’t think it is to affect me. Biegenwald’s prior The fact of Mr. Q: conviction—I think I covered that a little bit—but if I didn’t— A: Did that affect me? Right. Q: A: No. say, something put You could Q: “It is we will aside and we will concentrate here,” on what is is that it? A: Yes. honestly you You think so? You Q: think can do that? only why hesitating
A: The just reason I guess, am at all is because of—I as you say, staying through the inconvenience having my here this and boss getting upset with me. regards being juror, a fair and honest I think I could be able to sit through given the information that at this trial and not—not listen to anything else. you Monday jurors After assembling came here getting Q: when the were organized thing, any seated and jurors and that sort of did of the other talk to you you any jurors about this case or talking did overhear of the other about the case? Everyone—I really anybody—I speak A: people, doubt if can’t for other but everybody speaking about it. right. All Q: Speaking they Somebody A: speak today about what heard. wanted to to me said, judge and I “Leave me alone. The said not to talk about it.” Okay. helping. assembling process—now That’s Q: But we are concen- trating Monday. back then on People about, speaking you guard top A: were “Did see the building?” walking morning. when we were in in the *87 Right. Q: reading—somebody papers A: And then night. had read the the other you any you discussing? Do recall details that Q: overheard them Um, person juror A: saying they one had read the article about the first that person just believed a processing, life for a life.16 Another had discussed the coming into the courtroom and out of the courtroom. Asbury Tuesday, 16The reported, Park Press article on November alia, very juror questioned inter that the first on voir dire said she believed in case, Q; looking any background underlying I’m for detail about the case, thing. facts of the that sort of Actually nobody really part. They just A: wanted to talk about that were talking going go through picking process. about whether we were you part general panel pool Then remember were available for trials. Q: you anyone you you As sat there did talk to about this case or did overhear not, know, anyone talking talking just, you about the case? And we are courthouse, going in the cases but details about the incident itself. Um, actually A: about this case. It was more about—about the other cases, having people—the proceeding going up about cases that are to come having something. about bodies found his mother’s lawn or ’ you they jurors just general pool Do recall whether were who were in that Q: they maybe persons jurors or were who had been excused as from here and had gone back? everybody—I’m sorry. people general pool A: No. It was It was the in the they before had come. right. Again anything they you, All is there that told all these little tidbits Q: around, been, may passed they may you have been whatever have feel you would accumulate and add to whatever other information had and then capacity your judgment juror? have the to affect as a Um, case, my feeling A: honest is that for this the stuff for this individual case, heard, mean, any for what I read and what I there wasn’t evidence that—I case; my feeling it wasn’t substantial that he was the killer in this but it was many—incidents, highly probable guilty that after so it he is is of one of these crimes. highly probable being guilty How about this crime? Q: crime, A: From what I read and what I talked about this he talked to somebody body. and then there was a But I saw no connection in between. concerned, right. not, All As far as a connection is whether there is or Q: is you you juror do feel could sit as and listen to all the evidence that is determination, not, presented in this case and then make that isor based on you disregarding anything you may hear in the what courtroom and else have heard or read. Yeah, A: I feel so. important you give feeling. It is to us that us that honest You understand Q:
that, right? A: Yeah. cause; challenged
No Kelly peremptorily one Ms. she was day. excused the State later that automatically "a life for a life." She was excused because she said she would penalty. vote for the death *88 (i) Mr. Revill
Bertram Revill jury questionnaire he, stated his recog- that nized the defendant’s name. knowledge Now would tell us [THE COURT] Q: information, what what you got had of case before here on
you you Monday? girl just missing A: JUROR] Uh, that the was from the [THE Boardwalk in Park and that had found the a Asbury they and about body couple days later, the bodies in Staten Island. Biegenwald’s And Mr. Q: name in connection that? Okay. with Right. A: Q: Staten Island did that have connection in connection, mind any your working with sister over in your Staten Island? No, A: sir. get And did read Q: you information from the newspapers, or from or television from combination?
newspaper A: A combination. What would have read do think? Q: papers you you Ledger.
A: It be the would Star And then too? Q: maybe television, Right. A: The fact that bodies in are Q: Okay. you mentioned, Staten Island—we quote, dealing one with case—do think that the bodies that you plural, you might judgment sitting
mentioned affect’ on this your case? A: sir. No,
The trial court questions then asked Mr. Revill five learn impartial despite whether he could be fair and what he had heard or knew about defendant. Mr. said “I Revill twice, think so” and twice “no” if judgment said when asked his questioning would be affected. Then continued. got juror jurors coming together Once here all as were in the
Q: you groups, organized room downstairs and before were kind of assembly into you jurors did of those talk with about this case or did talk any you with you any jurors other about this case? A: There has been mention of it. right. All Did mention or that, it did overhear Q: people directly you you both? A: Both. was What mentioned to Q: Okay. you? being
A: Just that the case held here. basically did What mentioned else? Q: Okay. you anybody I A: what knew. Just, know, you basically *89 exchange just us Did information that told about with Q: other you you jurors? A: Oh, yes. girl disappearing Did this has to do with Q: like, “Oh, case from you say Boardwalk Park”? Asbury A: Yes. “And bodies in Staten Q: Island”? A: No. You didn’t mention that? Q: A: No. It never came up. regarding Biegenwald’s background? recall Do information Q: Mr. you any A: Yes. What do recall about Q: that? you A: had That he been in prison prior. For what? Q: A: For murder. Did read that in Q: you newspapers? A: Yes. get You didn’t that information here? Q: A: might Do think that fact Q: stick the back of you head affect your your judgment juror if sit as a on this case? you A: sir. No, again Do think Q: could that aside and stick you you with what really put you hear in this courtroom? A: sir. Yes, talking jurors talking among We are about kind of Q: each other. You are talking about what said to what said to other people you you people. jurors discussing, talking, Did overhear ever other you whatever want to you about the case? say, just A: I sir. mentioned it. Yes, thought juror. I it Q: and another Okay. you A: You said overheard or talked. being exchanged Overheard, And did overhear Q: details okay. you any among jurors? A: sir. Uh, no, generally Just knew was a case. Q: this There was a murder they case or big some case sort of are here for? they A: Yes.
[*] [*] [*] [*] [*] [*] [*] [*] Then far as Q: concerned, as are from all that you have whatever heard, you give do have, feel that if sat on this could input you you you case a fair you Biegenwald coming be fair and Mr. shake, both to and to the State in impartial decision? your A: I so. think gossipy And aside whatever stuff or Q: whatever heard? put you A: Yes, sir. Including those other items that Q: we talked about? Nodding affirmatively.) A: [********] Right.
A: Do think that that basic Q: about the of innocence you perception presumption as it is called would be affected in mind the fact that know that he your you had a conviction of murder? prior A: Can that? you repeat goes He is to be innocent Q: when he to trial here. presumed A: sir. Yes, You understand that. Q: Right. A: do think the have of that Q: Now, you perception you principle, presump- *90 tion of innocence, would be affected because know that he had a you prior conviction of murder? A: sir. No, You could Q: keep completely separate apart? A: sir. Yes, right. All Then I am satisfied and Mr. Revill can then [THE COURT]: Okay. number____ take chair Mr. peremptorily Revill was excused the defendant as accepted by soon as he was the court.
For WILENTZ, —Chief Justice and Justices affirmance CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
For reversal —Justice HANDLER-1. PLAINTIFF-RESPONDENT, JERSEY,
STATE OF NEW RAMSEUR, DEFENDANT-APPELLANT. THOMAS C.
Argued February Decided March1987.