*1 A.2d 172 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW BIEGENWALD, DEFENDANT- RICHARD APPELLANT. August
Argued September 1991. 1990 Decided *6 Jr., Defender, Smith, Deputy Stephen Public James J. Defender, argued the Caruso, Deputy A. Assistant Public Defender, Caraballo, at- appellant (Wilfredo Public cause for torney). Prosecutor, for argued the cause Stalford,
Mark P. Assistant Prosecutor, (John attor County respondent Kaye, Monmouth ney). General, argued Black, Deputy Attorney
Cherrie Madden curiae, Attorney Jersey of New General the cause for amicus General, attorney). (Robert Attorney Tufo, Del J. by judgment of the Court was delivered
The CLIFFORD, J. (1987) 524 A. 2d Biegenwald,
In
106 N.J.
State v.
II),
Biegenwald’s conviction
Richard
(Biegenwald
we affirmed
murder of Anna Olesiewicz but reversed his sentence of
sentencing proceeding.
death and remanded the case for a new
verdict,
having
A
death-penalty
second
returned a
the trial
appeals
court sentenced defendant to death. Defendant
direct
2:2-1(a)(3).
ly
right.
to this Court as of
R.
Because the death-
qualification process
inadequate
of the voir dire was
to ensure
right
impartial
defendant’s constitutional
to trial
a “fair and
jury”
principles
and therefore
conflict with the
set forth in
Williams,
393, 408-27,
opinion
this
Court’s
State v.
113 N.J.
(1988) (Williams II),
We believe some observations goal in jury juror fundamental selection is to make certain each willing obey will be and able to follow—to court’s instruc- —the applied in principle requires tions. As this case that that each *7 juror willing weigh be and to consider able and all of the aggravating mitigating reaching evidence on and factors before his or her conclusions. Defendant has killed twice before and has been convicted of other murders twice before. We are not sure, circumstances, many people fairly under those how could law, however, jury sit on a requires jurors this case. The mitigating who would at least listen to the evidence of factors conscientiously weigh deciding and who would that evidence in appropriate punishment. fairly jury might A chosen con- clude, vote, unanimously by split imprison- either that life fact, punishment. jury ment should be the In did so once prosecution against in another murder before this defendant. Despite II, despite our clear directions Williams prosecution’s agreement position, with defendant’s the trial Biegenwald’s simple court would not allow counsel to ask the question potential juror, knowing whether the that this defen- murders, previously dant had committed two would be able to evidence, consider other or whether those facts would death-penalty by juror. result in an automatic vote complex justification trial court’s for its refusal masks the simplicity question’s purpose: juror if to find out would, penalty, many automatically impose the death as would evidence, regardless instructions on other once he of the court’s or she knew of those other murders.
Among rights Biegenwald every capital- shares with right only murder defendant is the to be executed after a jury verdict of a that has considered all of the evidence. We do right. if not know he was accorded that jury We do not seek a that will be one whit less revulsed than the rest of us are this serial senseless murderer. We insist able, only its reaction to jury that the no matter how severe factors, aggravating mitigating least consider weigh in accordance the court’s instruc- factors and them Today’s proposition that is at once tions. decision rests on a very criminal-justice system: simple and at the heart of our trial, multiple even this murderer is entitled to a fair one that process jury-selection includes a that ensures that will according decide his fate to law.
I AND PACTS PROCEDURAL HISTORY prior procedural history fully of this case are The facts and 18-25, II, Biegenwald forth in 524 A. 2d set 521, 525-27, 542 A.2d Biegenwald, 110 N.J. (1988) III). Thus we limit our recitation to the (Biegenwald history appeal. facts and relevant to this 27, 1982, August and a eighteen-year-old On Anna Olesiewicz *8 friend, Hunter, Asbury Denise from to the Park drove Camden boardwalk, Asbury area. at the Park Hunter left Ole- While returned, to use a Hunter she was siewicz bathroom. When to her eventually proceeded unable to find Olesiewicz and alone Neptune following morning, not City. uncle’s home in The Olesiewicz, having missing-person a heard from Hunter filed report. 14, 1983, January
On a skeleton later identified as that of Anna Olesiewicz was discovered in a vacant lot in Ocean Township. There were four bullet holes in the skull. Testimo- ny guilt-phase at the trial indicated that the bullet wounds had been cause of death. The tissue that remained was inade- quate purposes of blood-alcohol or chemical tests. discovered,
One week after the skeleton was Theresa Smith police Biegenwald disclosed to the in involved shooting. wife, Biegenwald Diane, Smith had lived with and his through multi-apartment from June October 1982 in a building Asbury reported Park. Smith that she and defendant had friendly become and that she protege. had become defendant’s encouraged prove Defendant had her to find and kill a victim to toughness. night her disappearance, On of Olesiewicz’s driving co-worker, had Smith been around shore towns with a planned keeping whom she had to kill in with a scheme she had co-worker, Biegenwald. Fortunately formulated with for her resolve, by telephone Smith lost her informed defendant proceed arranged, she could not Biegen- as and returned to the apartment sleep. wald Biegenwald night
Smith claimed that had awakened her returning sleep for reasons she could not recall. Before Smith looked out a window and body” saw “shadow of a sitting in Biegenwald given the car that had to her. As II, in Biegenwald recounted Biegenwald garage the end of the next took Smith into the where he [a]t day jeans, lifted a mattress to show Smith a female a dark shirt body unzipped large green bag and no shoes. Smith did not see the face because a plastic Biegenwald covered head and was secured around the neck. asked Smith to leg touch the her and tell him how it felt. The defendant body “pick up” —to meeting told Smith he had shot the victim in the head after her on the telling marijuana, taking her he had her boardwalk, back to the house. Biegenwald told Smith that Olesiewicz had been intended be Smith’s first but
victim, when he had tried to waken Smith while the victim was still alive, get Smith would not 524 A.2d up. [106 130.] Smith, According Biegenwald removed from the victim’s finger gold ring gave it to black and later Smith. Biegenwald Fitzgerald, day next and Dherran a tenant *9 body in the lot in building, disposed of the vacant Ocean same Township. statement, police Biegen- arrested of
On the basis Smith’s wife, wald, Diane, Fitzgerald. They found the murder his and Fitzgerald’s apartment. only ammunition found weapon in bag in a weapon murder was located in the house that fit the Biegenwald slept. in which The black near the basement room having belonged as to Olesiew- gold ring identified and —later jewelry box. discovered in Diane’s icz—was guilty knowing purposeful Biegenwald juryA found affirmed him to death. This Court murder and sentenced sentence guilt-phase conviction but reversed the defendant’s concerning charge jury to the of an erroneous because aggravating mitigating factors. 106 N.J. at weighing of sentencing proceed 2d 130. remanded for a new 524 A. We ing. Ibid. proceeding, the court denied a motion
In advance of the new
attorneys
relieved as counsel. The
one of defendant’s
to be
allowing
for an order
denied the State’s motion
court likewise
Ward to be
Biegenwald’s conviction for the murder William
factor,
aggravating
but
additional evidence of an
admitted as
III,
request.
(Biegenwald
ultimately granted that
this Court
(distinguishing
A.2d 442
State v.
supra, 110
N.J.
I),
(Biegenwald
clari
Before to individual voir the court had prospective jurors complete questionnaire ques- that included concerning prior knowledge defendant, tions of or contact with witnesses, anticipated attorneys, knowledge and of a involving questionnaire murder case defendant. The did not inquire venireperson’s penalty. about views on the death asking ques-
Individual voir dire commenced with the court venireperson’s responses tions on the question- based to the concerning naire and penalty, his or her views on the death ability weigh support to aggravating evidence and mitigating factors, exposure coverage. to media After the questioning, initial permitted pursue, mostly counsel were to through court, further matters prospective raised juror’s responses. questioning Individual voir dire included sixty-four jurors. twenty-six The court excused venirepersons knowledge Biegenwald’s cause—eleven based on their panel criminal conduct—and released three because the ' complete. Defense peremptory counsel exercised thirteen chal- lenges prosecutor eight. and the party exercised Neither ex- hausted its allotment. evidentiary phase sentencing
The proceeding lasted sought day. prove aggravat less than a full two ing factors: defendant had been convicted of another murder, 2C:11-3.c(4)(a),and that the murder N.J.S.A. was “out vile, rageously wantonly or horrible or inhuman in that it torture, mind, depravity aggravated involved or an assault to victim,” 2C:11-3c(4)(c). attempted N.J.S.A. Defendant mitigating establish the existence of three factors: that “defen dant was under the influence of extreme mental or emotional prosecution,” insufficient to constitute a disturbance defense 2C:11-3c(5)(a); capacity appreci N.J.S.A. that “defendant’s wrongfulness ate the of his conduct or conform his conduct requirements significantly impaired to the of the law was as the intoxication, result of mental disease or defect but not to a degree prosecution,” sufficient to constitute a defense to 2C:11-3c(5)(d); factor, the catch-all N.J.S.A. N.J.S.A. *11 2C:11-3c(5)(h)(“Any other factor which to the is relevant defen dant’s character or record or to the circumstances of offense.”). c(4)(a), support aggravating
In factor the State introduced murder, Judgments into evidence two of Conviction for one from 1959 and the other from 1984. The 1984 conviction was for the 1982 murder of William Ward. c(4)(c), prove aggravating
To factor the State four called witnesses, during guilt-phase trial all of whom had testified original sentencing proceeding. Park, trip Asbury
Denise Hunter Aliano recounted the boardwalk, returning her leaving Olesiewicz on the to find cross-examination, missing. defense counsel On established occasionally marijuana, quaaludes, took that the victim smoked and used cocaine. her initial state-
Theresa Smith also testified consistent with police. prosecution ment to the asked Smith what defen- the woman in the why dant had told her about he had shot it answered that she and defendant had discussed head. Smith her, just shooting her.” “just shot felt like and that defendant had her to kill some- that defendant wanted She also testified picked girl up, it me that he this one for him: “He told up I wake so he killed supposed my victim and wouldn’t defendant Smith said that she and her.” On cross-examination murder, night late on had had conversation parked in the during she had seen someone car the conversation he had and that defendant had told her that driveway, in the questioned marijuana in the car. Defense counsel also smoked August in and his parolee status as a Smith on defendant’s prison. avoiding returning to concern about investigator County Prosecutor’s testi- A Monmouth Office body found in the location of Olesiewicz’s when fied about Finally, County Medical Examin- January 1983. Monmouth death had been er confirmed that the cause of the victim’s multiple gunshot the head. On cross-examination wounds to medical examiner stated that he found no indications physically while still Olesiewiez had been tortured abused alive. only videotaped testimony of Dr.
The defense introduced Eshkenazi, had testified psychiatrist Azariah a forensic who during original sentencing proceeding in and whose Thus, testimo- testimony videotaped. Dr. Eshkenazi’s had been identical to his testimo- ny proceeding in the under review was proceeding. tape The same had also been used ny the earlier sentencing phase of defendant’s trial for the Ward murder. three times
The doctor testified that he had visited defendant eight or nine hours and had 1983 for a total of reviewed *12 containing history. He indicated records defendant’s medical had as a child and been that defendant had suffered abuse eight. Defendant had been age institutionalized at the of diagnosed schizophrenic, subjected to electro-con- as had been occasions, had twenty shock treatments on been vulsive tight, by being in a under treated for headaches constricted bed urinated on wet, In defendant had cold sheets. those instances diagnosed defendant as Dr. Eshkenazi keep to warm. himself personality known as anti- suffering a disorder from severe He that personality paranoid traits. concluded social capacity to murder, had “lacked the the of defendant time the emotionally, though not his act appreciate wrongfulness the of “Intellectually knew explained: The he intellectually.” doctor * * *, certainly appreciate not doing but he did what he was further that as a somebody.” to kill He stated wrong that it’s disorder, ability personality defendant’s result of the described his conduct or conform wrongfulness to the of his appreciate “[fjrom an emotion- requirements of the law was conduct view, impaired.” completely al point aggravating summation, applicability to refute the In c(4)(c), argued that had defense counsel defendant factor that afraid killing, namely, for that defendant was motive for report him law-enforcement authorities Olesiewicz would consequence he would be smoking marijuana and that as a was defense summation prison. The balance returned spare defendant’s essentially persuade jury an effort to in an object study scientific could an life so that he become personality disorder to find a cure the anti-social effort State, summation, high- its The from which he suffered. Biegenwald’s was lighted underlying that murder conviction as evil and third, defendant an cold-blooded and characterized punishment. only appropriate was the for whom death killer doubt beyond reasonable jury unanimously The found aggravating factors. proven had each of two that the State unanimity not Although verdict sheet indicated factors, jury found 12-0 mitigating required for the distress, c(5)(a), did not exist. or emotional extreme mental impairment the existence of twelve found Three of the defect, c(5)(d). (The form did verdict by mental disease factor.) Four intoxication connection with mention relevant other factor jurors found the existence of record, c(5)(h). then found character or defendant’s *13 16
unanimously beyond and aggravat- reasonable doubt that the ing outweighed- factors mitigating factors. Accordingly, the court sentenced defendant to death. appeal
On defendant’s
to this Court we denied defendant’s
supplement
motion to
agreed
the record but
judicial
take
notice of records filed in other courts in this
respect
state in
granted
defendant. We
defendant’s motion that the Court take
judicial
portions
notice of
of the defendants’ briefs in State v.
Ramseur,
123,
(1987),
N.J.
II —A— CONSTITUTIONALITY OF THE STATUTE Defendant claims that Jersey the New Penalty Death Act eighth violates the amendment to the United States Constitu- Ramseur, tion. In supra, State v. 185-90, atN.J. 524 A.2d Koedatich, 548 A.2d upheld we constitutionality of the act in equiva- the face of challenges. lent We continue to adhere holdings. to those
—B— PRESENTENCING-PROCEEDING ISSUES 1. Gerald Issue
Defendant claims he was never
capital
convicted of
murder for the Olesiewicz murder because “there
was no
finding
specific
of a
kill,
intent
opposed
as
to an intent to
bodily
cause serious
injury resulting
death,
nor was there
any finding that
the murder
was committed
defendant’s
”
Gerald,
‘own conduct.’ See
40, 69,
State v.
113 N.J.
549 A.2d
(1988). Therefore,
argues,
defendant
his sixth-amendment
by jury
right
have
elements of a crime decided
has been
all
violated,
due-process right
only
as
his
to be sentenced
has
he has been convicted.
those crimes of which
*14
Gerald,
held that “a defendant who is convicted
In
this Court
bodily
knowingly causing
injury
‘serious
result-
purposely
of
or
2C:ll-3a(l)
(2), or
of
ing
and
either
in death’ under N.J.S.A.
or
purposefully
to one who is convicted of
opposed
them—as
knowingly causing
provisions may
under those same
death
—
case,
In
subjected
penalty.”
Ibid.
that
not
the death
be
jury
specified
had
it had found defen-
because the
whether
serious-bodily-injury
murder or intent-to-kill mur-
guilty
dant
der,
evidence in the record it could have
and because
former,
of the
reversed
convicted defendant
Court
remanded for a new trial.
conviction and
distinguish
serious-bodily-injury mur
failure
between
resulted in
der and intent-to-kill murder has
reversal
See,
121
e.g.,
Harvey,
in
cases.
State v.
death sentence
several
407,
(1990);
Pennington,
581
483
v.
119 N.J.
A.2d
State
N.J.
Davis,
(1990).
116
547,
A.
As we stated
v.
575 2d 816
State
(1989),
341, 367,
Legislature
“never
1082
561 A.2d
N.J.
sentencing
imposed on a
capital
defendant
intended that
purpose
knowledge
of a killer.”
the defendant had the
unless
580,
(1989),
Pitts,
However, in
116
The evidence
to the Olesiewicz murder introduced at
original
resentencing
both the
and
proceeding
trial
indicated
defendant shot
victim four times
the head from close
range while
both were
Smith’s car.
also
Smith
testified that
spoken
killing someone,
defendant had
to her about
and that
defendant had killed Olesiewicz because Smith would not wake
Rose,
up
McDougald,
Pitts,
killing.
commit the
As in
Hunt, we
that the
provides
conclude
evidence
no rational basis
on which a
could conclude that defendant shot Olesiewicz
bodily
with an intent to cause
injury
serious
rather than death.
inescapable
We find
the jury’s
conclusion that
verdict
Biegenwald
included a
finding
intended to kill Anna Ole-
siewicz when
her in
he shot
the head
times at
range.
four
close
explained
This Court
requirement
has
that the
conduct”
“own
*15
“
capital
murder statute
‘is not an element of the offense
merely
murder
a triggering device for the death
[but]
”
Gerald,
penalty phase
supra,
N.J. at
99,
of the trial.’
113
549
Moore,
N.J.Super.
561,
State
(quoting
576,
A.2d 792
207
504
Div.1985)).
(Law
146-47,
But see 113 N.J.
A.2d 804
at
549 A.2d
(Handler, J., concurring
792
part
dissenting
part)
in
in
and
(“own
Moore,
murder);
State v.
capital
conduct” is
element
239, 311,
(Handler, J.,
N.J.
(1988)
113
A.2d
concurring
117
in part
dissenting
part) (same).
and
in
The “own conduct”
provision requires
capital-murder
that a
conviction be based on
and
jury
actively
directly partici
finding that “defendant
pated
i.e.,
act,
in the homicidal
in
infliction of
injuries
Gerald,
supra,
from
113 N.J. 97,
which the victim died.”
The charged defendant both and Dher Fitzgerald ran charge against with Olesiewicz’s murder. The Fitzgerald exchange his testimony against dismissed was II, Biegenwald defendant. 2d A. 130. Biegenwald’s Fitzgerald defense at the first that trial was had produced witnesses who claimed the murder. He committed he murdered Olesiewicz. Fitzgerald that had that had boasted jury claims that “the 130. Defendant now Id. at A. 2d might reasonably defendant concluded that while could have dispose and of her to abduct victim helped Fitzgerald have accomplice), an it body (thus him liable for murder as making The had fired the shots.” Fitzgerald fatal who complex and the trial court’s “given the factual counters case, jury's guilt phase] verdict instruction this [in murder of finding that defendant committed the constituted his conduct.” by own Anna Olesiewicz theory Although agree that a conviction on defendant’s we Gerald, death-eligible, supra, 113 defendant would not render theory nor the facts or neither that N.J. at A.2d put might supported it were ever before arguments that have jury presented the trial jury. summations at shot either defendant Anna starkly-contrasting two scenarios: contended, or, defense Smith himself as counsel Olesiewicz guilty her. The verdict indicates unmis- Fitzgerald killed committed the determined that defendant takably that the by his own conduct. murder to Relieve Counsel Request
2. Denial of by requir court erred contends that the trial Defendant Vida, represent attorneys, continue to ing of his Glen one proceeding resentencing during the defendant of counsel violation error denied him effective assistance to the United Constitution. amendment States sixth years by Vida three points to a similar motion Defendant *16 Betsy the murder of prosecution in the of defendant for earlier developed gap had to establish that communication Bacon counsel, Vida, Diamond. Jersey New and Louis his between bar, Diamond, had admitted New York been a member prosecu- in murder pro represent vice to defendant several hac support of Jersey. indicated in against him in New Vida tions that that motion Diamond had informed him of a guilty- plea-hearing date in connection with one of the other murder prosecutions. also dispute Vida asserted that a unrelated to case the Bacon had arisen between Vida Diamond. The court denied the in respect prose- motion the Bacon murder cution. represented prosecution
Vida on the underlying defendant through Biegenwald this in Court’s determination II. Follow- ing remand, our reversal of the sentence and Vida informed the representation trial court his of defendant had terminated request and that a had been made of the Office of the Public represent Defender to resentencing defendant relation to the assignment proceeding. judge hearing held a to determine represent defendant, would following who at which the colloquy occurred: Proceeding Biegenwald THE COURT: The of this is to determine Mr. purpose going representing who is to be on the remand from the you Court. Supreme conflicting representing
And I have heard stories from counsel to who as is you, whether it is defender, whether it would be Mr. Vita public [sic or passim] Mr. Diamond, Mr. Diamond alone. Who is it want you represent you? originally MR. BIEGENWALD: I hired Mr. Mr. Diamond. Diamond hired Mr. Vita. As far as I am both concerned, me. they represent right. THE All COURT: Because Mr. Diamond alone cannot represent you New is not because he admitted to in New He must Jersey; practice Jersey. have local counsel from New Jersey. representing Mr. Vita has indicated that he wasn’t and his you more, terminated with the Court employment appeal. Supreme right, All want be heard? anyone MR. No, DIAMOND: Your I stand the case if I am Honor, allowed ready try to. THE Mr. COURT: Vita. MR. I VITA: think we have been it over Your Honor. already
THE We COURT: were over it in but I I on chambers, think want it the record now. MR. Sure. VITA: is Honor I position Your think that My basically considering Biegenwald facing, the nature of the that Mr. that he penalty tight working deserves counsel that are And I don’t know relationship. whether or not I that is the situation. had it with discussed Mr. previously Biegenwald. large his desires have a what will occurs. Obviously impact
21 Biegenwald Mr. conflicts between Mr. Are aware any THE COURT: you and Mr. Vita? Diamond MR. BIEGENWALD: No. this Are to have both of them you THE COURT: satisfied you represent remand? MR. BIEGENWALD: Yes. right, that Mr. did Vita, THE All I am of the opinion your employment COURT: a new as of the Court. It is not trial not terminate with the decision Supreme guilty It been remanded on death to the entire case. has only phase. Accordingly, a trial date and will be you I will select conviction was affirmed. Mr. of counsel with Diamond. that the court’s refusal reject contention
We
defendant’s
decision whether
relieve
was error. The
to relieve Vida
court,
trial
discretion of the
committed to the sound
counsel is
granting
request.
See State v.
against
presumption
with a
(1967)
476,
(policy
2d
of courts not
231 A. 361
49 N.J.
Lowery,
cause);
showing of
absent
substantial
competent
relieve
counsel
(same),
67,
(1964)
Smith,
202
669
cert.
A.2d
v.
43 N.J.
(1965).
731,
1005,
We
denied,
13 L.Ed.2d
S.Ct.
U.S.
resulting
of that discretion or
find either abuse
cannot
Admittedly, the
court did not
trial
prejudice to defendant.
dispute
of the
the record the nature
explore in detail on
may
that the court
never
record reflects
counsel. The
between
differences. Further
of counsel’s
have been aware
theless
more,
counsel would
equivocates on whether
statement
Vida’s
appropriate
capital-
to a
representation
provide
be able to
resentencing proceeding
defense. The court viewed
murder
view,
original
when com
trial. That
as
continuation
history
prosecution and
this
Vida’s
lengthy
bined with
defense, provides an
extensive, five-year
involvement
as counsel.
to relieve Vida
court’s refusal
ample
basis
moved to have
actually
never
We
note that defendant
also
Moreover,
the court that
indicated to
defendant
relieved.
Vida
represent him
Diamond
both Vida and
he
satisfied to have
Finally,
find
record
we
resentencing proceeding.
in the
participation resulted
any indication that Mr. Vida’s
devoid of
counsel,
responsibilities,
neglected
provide effective
a failure to
that renders
process
in the adversarial
or “a breakdown
668,
Washington,
result unreliable.”
Strickland
466 U.S.
(1984);
104 S.Ct.
L.Ed.2d
accord
Fritz,
42, 58,
(1987).
State v.
105 N.J.
In at 524 106 N.J. A.2d 130, rejected respect we a similar contention with to denial of change defendant’s motion for for of venue the initial trial. As II, we indicated Biegenwald right It axiomatic that a criminal defendant’s to a fair trial that he requires jury prejudice. Irvin be tried before a not tainted Dowd, v. U.S. 366 panel by (1961). S.Ct. 6 L.Ed.2d We 717, 722, [81 1639, 1642], 751, 755 have emphasized the the trial cases, of court’s importance, particularly capital responsibility integrity danger prejudice “to the the and the of minimize preserve * * adjudicatory N.J.
will infiltrate the A.2d process [106 32, 524 130 (Williams I)).] (1983) State (quoting v. N.J. 93 Williams, A.2d 641 39, 63, 459 capital In may “change cases the trial court in its discretion ‘necessary venue it is when overcome the realistic likelihood prejudice pretrial Williams, of publicity.’ from v. State 13, 641; 93 at 67-68 n. 459 N.J. A .2d State v. 96 Bey, see 625, 315], clarified, 630 A.2d 666 97 N.J. A.2d [477 [483 185] 33, (1984).” 106 524 N.J. at A. 2d 130. Because we have adopted recognized “the by distinction the federal courts be corrupted tween cases in atmosphere which the trial is so ibid, publicity prejudice may presumed,” (citing Shep Maxwell, 333, 352, 1517, pard 1507, v. 384 U.S. S.Ct. (1966)), and publicity L.Ed.2d those in the is less which 1025, 1032-35, Yount, see, saturating, e.g., v. U.S. Patton (1984), 2885, 2889-91, must 81 Ed.2d 854-56 we L. S.Ct. determining prejudice. identify applicable the standard first application of case does not warrant question this Without Koedatich, In su standard. presumed-prejudice 2d we identified a non-exhaustive 548 A. pra, 112 N.J. determining prejudice whether factors to consider list of (1) community hostili evidence of extreme presumed: should be (2) defendant; prominence of either the victim or ty against (3) and community; the nature extent defendant within (5) community; coverage; (4) the size the news offense; (6) temporal proximi and gravity nature 271-73, A coverage to trial. Id. 548 .2d ty the news course, (save, of the nature of those factors 939. Consideration offense) overwhelmingly to the conclu leads gravity the extreme circumstances sion case does involve that this corrupted by publicity as atmosphere be so a trial that cause *19 II, supra, prejudice. Biegenwald of produce presumption Consequently, review the trial 130. we at 524 A .2d 106 N.J. prejudice” the “actual change venue under court’s failure standard, circumstances i.e., totality under the of the whether handling trial court’s and the voir dire impartial jury. in a fair and resulted jury-selec distance from light appellate In of an court’s to the trial court that deference process, tion we have indicated 274-76, 548 Koedatich, supra, 112 E.g., appropriate. inherently requires of selection A.2d 939. nature venirepersons, an assessment evaluation of demeanor review of an unanimated narrowly appellate on circumscribed transcript. trial admonished spanned days. The court three
Voir dire the oath to the it administered panel both before and after coverage any avoid media jurors that should the members venirepersons voir dire the proceeding. Before individual required were to fill questionnaire out a included the following questions: defendant,
6. The Biegenwald, Richard was a resident of him? you Staten Island. Do know
YES_NO _ you 7. Do any family? know member of his _NO _ YES you 8. Have ever heard of him? _NO_ YES Before coming today
19. you here murder case had ever of a involving heard Biegenwald either Richard any from source whatsoever today any or previously? time YES_NO_ you 20. Had involving ever read of a case Richard Biegenwald? YES_NO _ you 21. Have anyone? ever him discussed with __ _ YES NO responses Affirmative questions triggered those probing by additional the trial court.
On sixty sixty-four individual voir dire prospective jurors questioned indicated that they were some way familiar with defendant’s name. The eight court excused for cause venire- persons appeared because it familiarity their pro- with other ceedings involving impair defendant ability would their to com- ply with oath. their Ten deliberating jurors of the twelve had familiarity indicated with defendant’s name. One deliberating juror indicated awareness implicated that defendant had been respect to more than one murder. who “Jurors have opinion guilt formed an innocence of defendant *20 Marshall, 1, 77, must be excused.” State v. 586 A.2d (1991). However, long “we recognized impanelled have that ignorant need of the facts of the case.” Ibid. Koedatich, (citing 939; atN.J. 548 A.2d 1, 23, v. Sugar, (1980)). 84 N.J. A.2d they formed an that had venirepersons who indicated Those properly were ex- concerning appropriate sentence opinion deliberating jurors indicated some .Although ten of cused. name, almost their recollections were recognition of defendant’s with the Olesiewicz vague of defendant uniformly associations prosecution. The voir dire deliberating of the one murder and one murder does of more than juror indicated awareness who presented and facts not to be not reflect awareness sentencing proceeding: during the considered Biegenwald before? heard the name Richard indicate have You [Q.] you A. Yes. how Do recall it was? Q. you I the radio on and it comes on ride and had day A. I to work Well, every radio in past. talking are about? much in the we past How Q. I it the radio. know heard on A. I have no but I idea, Talking that? last week or beyond beyond about Q. way —back know. A. I don’t really right. like context, it was used Do recall whether any particular All Q. you Biegenwald Biegenwald, mason, or— or Richard criminal, Richard A. accused of murder. No, Biegenwald accused murder kind Richard So associate you Q. Okay, thing? Right. A. recalled? Anything have the details of the murder you may about Q. Park, think in Asbury murders took I I recall one of the place A. something Park. about Asbury murder? was more than one Do recall also there Q. Okay. you A. Yes. one of the murders? You said Q. A. Yes. thinking recollection of that? that, your about Now are Q. you A. I know. don’t Biegenwald, Park Asbury murder associated have Richard So we Q. another murder? A. Yes. Q. Okay. know? anything let me head, more in
A. if there’s know, your You A. That’s about it. though anything memory heard even your have you is there Well, may Q. might or other or affect somehow you think work is indistinct which you you juror if sit as here? you *21 IA. don’t think so.
He******* In other stick with what I aside Q. words, you’d say put any pre-conceived had? notions have you may A. Yes. job, That’s that’s oath? Q. my your A. Okay. knowing asking Then as there and sit evaluate what we’re all Q. you yourself, juror about, these do believe that if are selected to questions sit as a on you you this that could be to the case, minded that are that you open proofs put you, weigh weigh good could the and the the both you proofs, bad, sides, listen law as I it and to a then come conscientious decision as to whether explain should be death or life with no for at least 30 penalty imprisonment parole years? Yes. A. THE COURT: additional Any questions? having MR. DIAMOND: if Yes, Honor, could had the your you inquire, knowledge that he he does that there were says additional does that murders, weighing mitigating have an additional effect him factors than if he upon didn’t hear that about previously? right. something
THE COURT: All With that in have mind, heard you may floating about at least another murder where does that leave around, you far as case so decide this on what’s court- your ability presented room? have THE JUROR: I’d to take in consideration what I’m for. only here just Well, THE COURT: that’s we want true, but to make sure are not you saying that us but it that would aside really true, you please put whatever it was that heard? you THE JUROR: Yes. thing THE COURT: The other that’s if Okay. here is important you stay long ago do not whatever discuss it was heard time you idly you on getting, radio car other here. Because that’s any you outside information how or understand, some other that’s completely improper? THE JUROR: IYes, understand that.
The voir dire of that juror pretrial publicity on issue of was thorough and extensive. The court offered defense counsel opportunity probe challenge objection No further. was second-guess judge’s made. We will not the trial evaluation pretrial juror. the effect of publicity jury impanelled conclude free any We taint dire voir pretrial publicity. adequately from disclosed change need to venue sua publicity. There was no exposure to Nor find that there was breach sponte or do we otherwise. because there is plea agreements in other cases of defendant’s relating to defendant’s other murder that evidence no indication *22 process. into entered the deliberation convictions reject briefly and defendant’s pause to consider We caused him specific circumstances contentions that two related publicity. The first is an free of taint from to denied a trial be assertedly infor article, containing erroneous inadmissible and morning mation, Park Press the appeared Asbury the that brought the day Defense counsel of voir dire. the second day's proceedings that to attention before article the court’s commenced, whether he prospective juror was asked and each to complied frequent admonitions with the court’s or she had that the sub coverage. There is no indication media avoid any the the member of article came to attention stance the jury’s The it infected the deliberations. jury, much less that coverage to instructing jury avoid media diligence in the court’s exemplary, the concerning the was case and discussions has court's direction jury that adhered to the presumption the not been overcome.
Second, the failure to ex- objected to court’s defendant relating to knowledge had of facts juror who cuse cause juror quali The was investigations of defendant. murder other day of dire and defense counsel third and final voir fied on the morning session. peremptorily during that same excused her juror’s for mistrial based on moved Defense counsel also room, characterizing her as a colorfully presence jury in the might trigger mass recall of inadmissible grenade” “hand jurors. by the other evidence have juror should been argument
Although have find the failure to persuasive, cause is we excused for Foremost unproblematic for reasons. her several excused deliberate; shortly peremptorily was excused juror did not she juror’s pres- Consequently, the qualified. after she had been jury ence in the room was brief and ended jury before the exposed which, evidentiary phase, to the particularly in a mur- one, der case such as can understandably pique urge this equal discuss the importance judge’s case. Of is the scrupulous reminder each qualified venireperson any discussion forbidden, strictly about the particularly case was his admoni- juror: tion to that Judge, MR. DIAMOND: I have no more Could we instruct questions. juror on the items we discussed were not proposed here, discussed they jurors with of the other time. any any juror juror]
THE go COURT: I tell each I will Oh, tell [this when into you room are not this to discuss with you there. The supposed anybody discussing time to do about this case at all only fellow if your deliberating sit when are you you end the case. A. IYes, understand that. knowledge? MR. I’m DIAMOND: would that also include sorry, any prior Anything relating THE COURT: I case, this think that’s clear and this pretty going seems to understand lady that and I’m to fine tune it because you saying? don’t it. understand You understand Okay? what I’m juror relating indicated that she had not had discussions *23 any person husband; other than her we are defendant unpersuaded that there is a reasonable likelihood that she jury during stay infected the her in the jury brief room.
—C— ADEQUACY OF VOIR DIRE Defendant contends that the resentencing voir dire for the proceeding inadequate First, respects. was several he ar- gues failing that the trial court by erred to define for murder panel the jury by refusing and requests defense counsel’s that potential jurors types they asked which of cases would be willing to impose penalty. According defendant, the death deny those errors right combined to him his constitutional to a impartial jury. fair and
Second, argues by defendant refusing the court erred inform potential jurors prior that defendant had murder convic- by tions and failing probe knowledge whether of those ability punishment impair their to determine convictions would Essentially, defendant claims in accordance with the law. identify jurors would “automatical- dire failed to who voir considering ly” triple death without sentence murderer to mitigating factors. Because such would evidence of cause, that the defendant contends been excludable have right to a fair ruling him his constitutional trial court’s denied jury. impartial and exclusion for cause
Finally, defendant contends that the
acknowledged
imposing
Ficsor
he
Stephen
because
him his constitu
“very difficult” denied
penalty would be
death
impartial jury.
process and a fair and
right
to due
tional
contentions,
challenge
the venue
dis
Underlying those
and
20-27,
181-185,
argument
2d
is the
supra
594 A.
at
cussed
scope
as a whole was insufficient
that the voir dire
impartial
sentencing by
jury.
a fair and
ensure
depth to
ques
relating to Ficsor is meritless.
The contention
ample
there was
reason
demonstrates that
tioning
juror
of that
his oath.
ability
the law or to abide
to follow
to doubt his
sentencing options
the limited
dissatisfaction with
He indicated
that he could sentence
say
He
could not
also
available.
killing. The
gruesome
in the case of a
person to death even
court’s decision
for the trial
indicates a sufficient basis
record
impaired
substantially
ability
juror
as a
that Ficsor’s
to act
412,
Witt,
meaning Wainwright v.
U.S.
within
Texas,
(1985),
Adams v.
U.S.
83 L.Ed.2d
S.Ct.
(1980).
v. Rams
See State
65 L.Ed.2d
100 S.Ct.
eur,
Although we do not *24 Ficsor, request he further nor did exclusion of object to the that the trial reject contention defendant’s questioning. We excusing Ficsor on the basis its discretion court abused Hunt, supra, 115 N.J. record. See such a sterile to in trial court 357, (sound of discretion measure 558 A.2d potential juror’s determine whether prevent or views would substantially impair ability sentence). or his her to decide remaining arguments, however, present
Defendant’s problems. together, more difficult alleged Taken errors and omissions efficacy raise serious doubts about the jury-selection process. The similarities between this voir dire II, and the one in addressed Williams 113 N.J. obvious, plentiful, A. 2d are and disturbing. That neither defendant nor the State exhausted complement its of perempto ry challenges consequence is of no if the voir dire to failed produce sufficient information to allow counsel or the to court challenge prospective jurors intelligently, either for or cause peremptorily. II, As this Court stated Williams thorough counsel must afforded the voir dire opportunity evaluate jurors’ and assess attitudes in order to effectively selection. participate prejudice If counsel is unable screen out and bias, that leads inevitably juries. This result —or the unfair this result —cannot be tolerat- possibility of (emphasis added).]
ed.
at 409,
In Williams we were faced with the issue of whether the trial court had abused its discretion when it refused ask penalty who favored the death in some cases whether they would automatically favor the if penalty death the defen had dant committed rape, alleged murder and as in the indict ment. We held that the pursue inquiry refusal to that line of significant component “serious error” and “a of the defi ciencies” that necessitated reversal of both the sentence and of that conviction defendant. 113 N.J. at 2dA. 1172. juror mitigating follows that a [I]t not, who will consider cannot, relevant pertaining evidence to the defendant the crime because involves rape
murder is Adams- Witt test. under the “substantially impaired” Therefore, juror mitigation failure to into whether inquire could consider the evidence *25 guilty and denies that defendant was of murder if it was established rape which to insure that the and trial court the tools with panel counsel the [Ibid. ] its in this case. undertake role could fairly “rape,” interchange of “another murder” for the mere With equally applicable present to the circum- reasoning is stances. argues that II is somehow distin
The State now Williams cases, line disagree. In the guishable on this issue. We both by court related to statu disallowed the trial questioning of of are aggravating factor the existence which tory established, obligated if in their consider expected indeed, —to — rape in II was sentencing That the Williams deliberations. of murder for which the circumstances intertwined with being prosecuted, the other murders while that defendant occurrences, separate in out of considered this case arose to be merely from Any no distinction stems is of moment. enumerating aggravating factors. wording provisions (“offense was 2C:11-3c(4)(g) committed Compare N.J.S.A. * * * of engaged in the commission while the defendant was [a] (“defendant 2C:ll-3c(4)(a) has assault”) with N.J.S.A. sexual murder”). time, convicted, of another been precluding of goes beyond the level inquiry The both cases non-specific-stat- sentencing determination intrusion into II, recognized that In we aggravating factors. utory Williams venirepersons blind rape murder could brutality of a and are jurors. Similarly, we duties as performance their could had killed knowing a defendant before convinced disregard person evidence an fair-minded cause otherwise Baldus, D. G. mitigating factors. support offered Cf. Penal- Pulaski, the Death Equal and & C. Justice Woodworth of death (1990) (reporting probability that sentence 318-20 ty prior murder each imposed percent increased will be conviction). limited to circum reasoning II is not of Williams being a defendant surrounding murder for which
stances
our
States Constitution
prosecuted. Under the United
punishment,
system capital
the sentencer must consider not
only
particular
“the
circumstances of
offense” but
“the
also
character
record
of the individual offender.”
Woodson
Carolina,
280, 304,
2978, 2991,
*26
North
428
96
U.S.
S.Ct.
49
944,
(1976);
II,
961
L.Ed.2d
supra,
accord Williams
113
atN.J.
417,
Hence,
The also distinguish II is Williams able because there—unlike this case—defendant exhausted his allotment peremptory challenges. That misper contention problem ceives the permit created the refusal to voir dire impact about the murder prospective other convictions on jurors. By prohibiting inquiry, the court “denied counsel and the trial court the tools with which insure that the panel fairly II, could undertake its role.” Williams 113 417, at A.2d N.J. 1172. Whether defendant exhausted his peremptory challenges allotment of is dispositive. not The inquire refusal to about the effect of other murder convictions necessary denied defendant the information to exercise those challenges intelligently effectively. Furthermore, the in quiry might jurors have identified who were unable consider support relevant in of mitigating evidence factors when faced jurors with a recurrent murderer. Such would have been excusable for cause under our capital-punishment system. Ibid. ruling questioning
In concerning impact of other required, murders is not the trial court that such concluded an inquiry “shopping would amount jurors with the to find out their point they when tendencies will be to a overborne where go Although may for death.” the court have been correct in its characterization, in implicit it erred its “shop- conclusion that fact, appropriate. necessary. In it is ping” permissible is not or to Williams again II: We return juror from each sufficient information concern- Once trial court has elicited * * *
ing
then counsel’s
to formulate and
that person’s predilections
ability
argue for
for
is enhanced. More
the trial court will
excusal
cause
importantly,
the Adams- Witt standard
which to
have a more
record on
apply
complete
granting
denying
cause. This enhanced record is
excusáis for
imperative
in a
disclosure will also undoubt-
interest
fair trial. Greater
preserve society’s
in the exercise of their
aid both the defense and
respective
edly
prosecution
challenges.
N.J.
A.2d
413,
[113
1172.]
peremptory
Moore,
122 N.J.
recently stated in State v.
As we
“voir dire acts as
(1991),
discovery
tool.”
We note in this credit, case that the to its acknowl- edged inquiry the need for other about murder convictions during brought voir It opinion dire. in Williams II to the trial court’s attention and even went so as far submit proposed question for the court to use: IAs advised the decision as to what previously you, is the appropriate penalty aggravating in connection this will matter upon existence of depend mitigating weigh factors factors and will then these as I will instruct you of the end this case. you legislature aggravating The has listed a number of factors has also listed mitigating aggravating legislature number of factors. One of the factors the * * * has listed and the State contends exists is that been defendant had mitigating convicted of murder. Could consider evidence
previously
you
even if the
defendant had
been
proved
convicted of
previously
murder?
endorsing
question proffered by
prosecu-
Without
the exact
or suggesting
single question
tion
that a
accomplish
can
task,
impressed
we are
with the
of
obvious merit
the State’s
light
proposal.
In
particularly
light
Williams II—and
positions
parties
inquire
trial court’s refusal to
—the
the impact
knowledge
about
of other murder convictions
ability
prospective jurors
would have on the
to credit or
mitigation
consider
mystifying.
the evidence in
permit questioning
refusal
the impact
other
during
murder convictions
voir dire constitutes serious
*28
error, however,
error. Such
is not irremediable. Defendant’s
may
sentence
if
upheld
the voir dire was otherwise so
thorough
probing
jurors empaneled
and
as to ensure that the
the “capacity
had
to
the
in mitigation,”
credit
evidence
123, 154,
(1988)
II),
112
Bey,
(Bey
N.J.
35
the court’s
perform their duties in accordance with
ability Texas,
oaths,
supra, 448
their
see Adams v.
instructions and
45,
2526,
reviewing
at
Notwithstanding
powers
vested
the
broad
II,
process,
jury-selection
Biegenwald
regarding
trial court
130;
Jackson,
37, 524 2d
43 N.J.
supra, 106
A.
State v.
N.J.
denied,
982,
160,
(1964),
148,
379
85
203 A.2d
cert.
U.S.
S.Ct.
690,
(1965),
suggested
ways
we have
several
The voir in this proceeded dire as other monotonous, consistent, pattern. if not prospec- After the jurors completed questionnaire, tive had the court conduct- beginning ed individual examinations with review an- questionnaire. potential swers on the ques- Most were concerning prior knowledge Biegenwald tioned their or cases involving person him. Each asked his was for or her views on penalty. up the death The then questions court followed concerning potential juror’s ability to follow the law as questioned prospective instructed. The court also jurors con- cerning willingness psychiatric Ques- their testimony. to credit tioning by proceeded entirely counsel minimal and almost through the court. occasions, eight
On least rejected court coun- defense request, potential juror’s response sel’s based on the to the questioning, individualized inquiry for additional about a venire- person’s penalty. views on the death That is addition to rejecting request questioning defense counsel’s as such matter course.
A juror provides review of the voir dire of Mitchell a sense approach qualification: of the court’s to death right. obligation jurors here in a limited I All this trial is one as Q with which to this situation based appropriate has to do penalty explained, mitigating aggravating factors that are factors are upon presented I think but should, unless those words throw don’t you, they presented things aggravating which tend to lean factors would be those would you *30 mitigating factors would tend to lean from you away towards the death penalty, toward with no for 30 the death and life imprisonment parole years, penalty are those the two options? A Yes. generally do Since is a what think about the you death Q possible option, death penalty? something it A It cases sometimes it’s not that I doesn’t, in certain and applies goes go it in taken on or doesn’t cases. have a definitely, position think the death should never There are some conscientiously penalty Q people are that view. That’s not view? be and entitled to imposed your they A No. if hard-nosed more, will, There are also some folks who are and you they Q whoever of that if there is a murder involved is convicted murder would say get the same death Are of persuasion? should penalties, penalty. you weigh I have to each case its merits. No, by A think you is that the evidence that will be to of Dr. of Q Okay, part presented you Anything he’s his Eshkenazi, I mentioned name yesterday, psychiatrist. think is less of than about which testimony worthy acceptance psychiatric you medical other kind of testimony? maybe valid. in some cases it’s No, sometimes, very A evidence the case have heard all the on the At end of the after Q you mitigating explaining aggravating all the who sit I’ll be factors, and law handle those and what apply how should they principals [sic] obligation as I under oath is to law your accept decision. tell that your you own to what think the it to substitute for it views as you I and not explain your ought can do that? be, law is or it think you what you Yes, A I do. sir, Sitting knowing think to all of that if us, now and it’s important you there Q juror listen would able to in that sit, are selected as a this case you you then I have make evaluation and before, described your minded open way objectively and do that and what is the fairly, decide appropriate penalty conscientiously? A I so. believe juror? THE additional Any prospective COURT: questions ‡^‡‡*#** Judge, witness I seem have a called, the next is MR. DIAMOND: before of the answer but the the nature Honor, answer, not with
problem, you, your giving same It would are answer. depend that a lot of them is always just I me there is coachment there like and it seems to facts upon he wouldn’t want that, you know, Mr. Sacchi who said before believe it’s jail who has come out of and he somebody heard else [sic: hurt] somebody again, feeling I have the terrible it my mind, depends upon facts, the facts that he murdered more depends upon than one person. THE COURT: the murder, Depends upon depends circumstances, upon but their answer is their answer, not like that you know, you answer but may it’s the correct answer. absolutely agree, MR. DIAMOND: I I realize it’s the correct answer for the person if it’s all of them who believe who kills more than then there’s anybody once, tough thing, no tough thing. it’s a I question mind, know it’s a my I something wonder if there’s we could ask them what mean that. If they could elaborate on that they a little bit more. aspect give THE COURT: You come with a it to me up question, sometime. Judge, depending MR. DIAMOND: The on the question simply, circum- what are stances, the circumstances? shopping THE gee, No, COURT: because then I’m with them. will They say if he stabbed him in the back 16 times or— shopping, asking MR. DIAMOND: It’s not a are question them you that “can already sit on a murder case and simple question you do you feel would vote for the you death would always never vote for penalty you it?” Once asked that you are in the market question you This place. shopping going go if question we’re only applies down the scale. up going It’s not like it’s a mark-down and it’s to be four murders today *31 going shopping tomorrow. to be three no Always murders, involved at all. We know there are three murders, should be allowed to know there are they three. At least ask them if under certain circumstances, have some they may outlandish if reason, all seem to if a killed they say more than person somebody going once and not then we’re death, to do it this time. put That's not shopping. haggling We know the we’re not amount, over the specific price, going there’s three murders. If are not to do at least ask you that, them what mean when circumstances on their they they say mind it’s not a special already, shopping expedition. language, THE COURT: in colorful I’m Okay, you speak satisfied the questioning so far is in accordance with constitutional mandates and I’m not going go suggest something that as beyond unless there’s in the you specific general not that right answer, answer which God knows the is, you know, willing weigh answer, we assume most are that are people way, they and it right will that’s the depend upon circumstances, answer. going I’m not go to ask them what kind of circumstances would cause you going one or another. I’m not way No, to do that. MR. DIAMOND: Well, would ask— you THE COURT: No I have ruled. more, weighing— MR. DIAMOND: from Stop you coming THE COURT: Don’t back at me with another "if.” I have keep ruled. suggestion colloquy in the there is a “correct” open-ended question your answer to the “what are on views penalty?” death troubling. Although open- is most such an question undeniably proper jumping-off point ended qualification, vapid response death depends “it on the way circumstances” in no prob- reduces the need for additional ing venireperson’s of a appropriateness views on the purpose sentence of death. The of voir dire is not to elicit answer; potential juror from a the correct it is to draw out the views, potential juror’s biases, provide and inclinations and to opportunity both counsel and the court the to assess the venire- person’s demeanor. proceed We reiterate that voir should dire object providing conscious court and counsel alike challenge with sufficient information with which to potential jurors intelligently peremptorily. for cause or —whether open-ended question
The court’s initial and variations on the depends” response closed-ended, “it were too often followed suggestive questions that, surprisingly, elicited the obvious response. example, venireperson respond- “correct” For Black question you penal- ed to the “what do think the death about ty?” in way: this
A it’s more to how the state of the victim Personally really was, up person was with at the time was he out of but I defendant, have mentally control, go thought no I don’t views, either never sat down and about really, way, killing because of a crime. somebody saying judgment are Well, will what are Q you your depend upon proofs presented you? A Yes. Depending go could either towards the death
Q upon proofs, you penalty or towards life one or the other? imprisonment way A Yes. right. jurors, All As I said to the what will will be evidence Q presented *32 aggravating mitigating big
what are called factors those are factors, come to down and minuses as to the Mr. words, really individual, pluses Biegenwald. Do think could listen to all the and minuses and then under the you you pluses right law as I’ll it decide what should be? explain penalty A Yes. [Emphasis added.] counsel, questions from de-
The court additional but invited perempto- Black was later excused fense counsel declined. Ms. rily by the State. instance, response venireperson raised
In one when the conviction, impact another murder the court the issue of the potential juror open remain did assure itself that the would Venireperson option imprisonment. of life Russo answered penalty general query concerning his on the death views way: this good A I think it’s in some if a is—I mean has committed ways, person I murder, I mean if it’s so strict have committed more than one do murder, they right believe in the death I think that’s way. penalty, murder? If have committed more than one Q they
A Yes. inclined towards the death if that were So that would be Q you penalty presented you? A Yes. that mean that wouldn’t If it were would Q you pay any presented you, mitigating evidence was? attention to what the degree A I the factors are there that it was to a certain more brutal No, mean, I lean more towards the death se, than another murder wouldn’t penalty. per willing murder in would still be words, But even with another Q your you mitigating might outweigh listen and to the that the factors still open possibility even that? A I’d Oh, listen, yes, yes. said, even with another it’s I think from what murder, you you SoQ possible, for at least 30 still could vote for life with no parole years? imprisonment A Yes. Depending what hear? Q upon you A Yes. juror trying but that’s the I’m not to lead this [sic] Understand Q perspective saying I hear him his to me. responses way explaining the case I’ll be what the law how the is to is, At the end of what the law comes down to. Do their that’s decision, really you approach willing tinkering that law as I it without believe accept explain you’d it in mind to suit own views? own your your A Yes. peremptorily. Defense counsel excused Russo Were that meth- the voir dire process, questioning employed throughout od of might Unfortunately, we find that our result well be different. excep- death-qualification questioning of Mr. Russo was *33 interrogation tion representative and the of Ms. Black is of the normal course. refusing probe thoroughly
The error of more the death- penalty compounded by views of the the absence of applicability indoctrination on the of the penalty death and the crime of murder. The court identified Biegen- the basis for during general wald’s murder conviction voir dire: answering To assist some of the it will be you questions necessary you understanding charge have some of the that was contained in the Indictment Biegenwald guilty which Richard has been found of murder. The Indict- upon regard Biegenwald, ment reads that Richard on or about the 28th or August, 29th in the did commit the crime of day City Park, Asbury girl murder of a the name of Anna Olesiewicz. Her name will come up charge guilty that’s the and he’s been found of that. He did that. response venireperson possible When the of a indicated a mis- law, understanding attempted clarify by the court disclosing imposed only that a death sentence could be on a Although agree defendant convicted of murder. we with the observation of the State that “murder is not such an uncommon society,” accept proposition occurrence our we do not average juror expected capable should be drawing legal capital distinction between murder and other fact, killings. responses gregarious In venireper- of more instruction, suggest they capable. sons that without are not so prospective juror penalty One indicated that the death would be appropriate killings. in some cases An- but not for accidental other depend indicated that her decision would on whether the “mentally death-qualifica- defendant was out of control.” The questioning venireperson po- tion Luzzati demonstrates the prejudice tential that could arise from the failure to educate potential jurors: might are What own views of the death if we ask? [Q] your penalty
A It’s how serious crime if it was cold blooded I feel that his was, murder, something life should be too. If it was an that’s taken, accident, totally different. If it’s an accident it’s not murder. Q
A I don’t know what the circumstances were. thing There’s no such as accidental murder. Q A That’s the I feel it. about way right. saying All Are then that if it’s a real the death murder, Q you penalty ought to be imposed? just
A From what I can from what had told us. understand, you what I told was there were two that’s what I told No, Q you options, you. *34 A I feel if it was then his life should be too. intentional, taken, being You can’t have a murder without it intentional? Q A Then his life should taken. be excused; however, exchange Mr. Luzzati was evinces the procedure equivocal danger inherent in a wherein answers to open-ended question by lengthy ques- the initial were followed suggested response. tions that the “correct” To admonish a potential juror talking only murder here” is that “we’re about meaning explanation ineffective in the absence of an Jersey parlance, In murder murder under New law. common killing interchangeable. are Murder as used in the crimi- and system precise meaning, capital nal-law has a and murder is narrowly more even circumscribed. question exception the notable of the court’s initial
With
concerning
venireperson’s
penalty,
a
views on the death
leading,
examination consisted of a series of
closed-
routine
questions. Although
up
the court invited follow
from
ended
counsel,
points.
inquiry
it refused to allow such
at critical
The
potential jurors concerning the
court failed to educate the
laws
capital punishment
Jersey relating
of New
to murder and
rejected hypothetical
except
general
in the most
terms.
It
predisposition.
questions designed to draw out bias and
acknowledge
paucity
objection by defense counsel.
We
However,
vigor
might
lack of zealousness and
one
whatever
way
duty
diminishes our
ascribe to defense counsel
no
by
impartial jury,
ensure that defendant is sentenced
a fair and
considering
capable
is
evidence
each member of which
reaching
aggravating
mitigating
factors before
support of
appropriate punishment.
lapses
a conclusion on the
mem-
employed here foreclose a conclusion
voir dire
death-qualified.
right
“The
to a fair trial
properly
bers were
defendants,
protected
insure that all
diligently
must
regardless
charged
weight
of the crime
or the
of the evidence
II,
by
impartial jury.”
are tried
produced,
a fair
Williams
1172;
I,
supra, 113
550 A .2d
accord
N.J. at
Williams
(“The
supra,
penalty
Mu’Min v.
S.Ct.
U.S.
(1991),
subject
possible
that “the
L.Ed.2d
confirms
bias
*35
pretrial publicity
from
must be covered—which it
was—but
dealing
questions specifically
with the content of what each
at-,
juror has read
be asked.” Id.
at
S.Ct.
[need not]
Here,
only
specific question
prior
the
1908.
was
about
rejected,
subject
was not covered
murder convictions
but
ignores
sufficiently or almost at all. Justice Stein
the deficien-
compound
asking
impact
the error of not
about the
cies that
i.e.,
prior-murder-eonviction
open-ended
the lack of
factor —
ques-
questions, hypothetical questions, prior-murder-conviction
responses, and instruction on what
tions based on individual
Jersey.
post
“capital
constitutes
murder” New
See
(Stein J., dissenting).
subject
possible
The
Finally, recognize finding that our that defendant is we possible blinding potential jurors to voir dire on the entitled likely require two-jury c(4)(a) most will a impact of the factor prove seeks to system capital for all cases which State c(4)(a), aggravating factor unlike factor. That is because factors, by gener- aggravating proved is evidence not all other ally guilt non-guilt. or during admissible the determination See Evid.R. 55. system established purposes
One of the
of the bifurcated-trial
Penalty
prevent
jury’s
Act is to
by
Jersey
the New
Death
being
death-eligibility
by
from
influenced
evi
determination of
only
appropriate
of the
sen
adjudgement
dence relevant
98, 121,
Pinnell,
tence.
v.
311 Or.
P.2d
See State
*
**
(1991) (“One
purposes
of the bifurcated trial is
prevent
jury’s
[non-guilt]
guilt
becoming
from
verdict on
tainted
evidence of defendant’s bad character that is admis
Although
single jury is
only
penalty phase.”).
sible
in the
a
explicitly provided
empanel
preferable,
Legislature
has
ing
sentencing proceeding
showing
on a
separate jury
for the
2C:11-3c(1);
“good
Long,
cause.”
v.
N.J.S.A.
cf.
439, 475,
(1990)(recognizing
2d
that other-crimes
N.J.
575 A. 435
during guilt phase may
prejudicial
too
evidence
be
admissible
by limiting
during penalty phase irremediable
instruc
be
tion);
Moore,
supra, 113
1. re counsel sentencing proceeding, defense Before Bieg relating sympathy and to several factors quested that charged sepa prior sentences be history and personal enwald’s hearing counsel pre-sentencing At the rately jury. to the individually listing the factors request to include expanded argued that counsel form. Defense special verdict on the in (c(5)(h)) factors 2C:11-3c(5)(h) (mitigating adopting N.J.S.A. the defendant’s relevant to factor which is “[a]ny other clude offense”), the circumstances of or to the or record character multiple established if the evidence intended that Legislature to the factors, presented they should be non-specific-statutory of one catch-all merely as evidence individually rather than fair considera in order to ensure asserted that Counsel factor. factors, factors mitigating non-specific-statutory tion According defense sheet. jury-verdict on the should be listed factors would the other counsel, jurors to remember require listing factors, light particularly to trivialize those appeal mitigating factors. On statutory aggravating relegating to second further, arguing that presses defendant pursuant submitted the other factors ary consideration *37 46
c(5)(h) Supreme contravenes the United States Court’s mandate that Eighth and Fourteenth Amendments the in all sentencer, but require considering os the rarest kind of not be from case, capital precluded mitigating of a defendant’s character or record and factor, any aspect the circumstances offense that the defendant as a basis for a proffers v. 438 U.S. than death. [Lockett Ohio, S.Ct. sentence less 98 586, 604, 2954, (1978); accord v. 990 U.S. 973, 57 L.Ed.2d 494 110 Boyde California, 2964, 370, (1990);
S.Ct. L.Ed.2d id. S.Ct. at 108 316 110 1190, 108 L.Ed.2d at at-, 1201, (Marshall, dissenting) (indicating Lockett); ruling on J., 333 unanimity v. Ramseur, 106 524 supra, 294-95, A.2d 188.] oppose generally charging did listing The State or requested individually, although objected pro- factors it to one posed factor on the basis of relevance. The State did voice concern, however, that if the court were to list the factors counsel, requested by jury might defense conclude that only those were the factors to “totally be considered and would disregard something that neither defense counsel nor the court mitigating Expressio had considered as a factor.” unus est court, citing by exclusio alterius. The the concern raised State, request proffered separately denied the to list the factors point but indicated that it would allow defense counsel to out the factors his summation. The court also indicated that in c(5)(h), charging it would mention the evidence tending support argument. the defense’s Court, long recognized, Supreme
We have
as has the
all,
reliable, accurate,
capital sentencing
“above
must be
and
nonarbitrary.”
Parks,
484,-,
v.
110
U.S.
S.Ct.
Saffle
1257, 1262,
(1990);
Gregg
108 L.Ed.2d
accord
(1976).
Georgia, 428
U.S.
S.Ct.
L.Ed.2d
(in
the death sentence
be consistent
the sense
[Decisions
impose
[must]
* * *
death)
other decisions to
or not
and
consistency
impose
impose
(in
deserving
reliable
the sense that
individual defendant
of the punish
ment).
conflicting,
Sometimes
the two
and
principles
consistency
reliability
rising
reflect
the increased demands of
fairness,
constitutional
accuracy
in the
of this
dimension,
criminal sanction.
[Ramseur,
implementation
unique
106 N.J. 524 A.2d
188.]
procedural
capi-
Consistent
mitigating
treatment of
factors in
fairness,
tal-sentencing proceedings advances those interests of
least
reliability,
justice. We are aware that in at
one other
non-specific-statutory mitigating
capital-murder prosecution,
jury-
were listed on the
proffered
factors
defendant
(The jury
impris
to life
form.
sentenced
defendant
verdict
thirty-year
parole
period
ineligibility.) Any
onment with a
“relevant to the defendant’s character
record or
other factor
*38
offense,”
2C:11-3c(5)(h),
the circumstances of the
N.J.S.A.
and that could
that a defendant submits for consideration
be
evidence,
2C:11-3c(2),
by some
established
reliable
see N.J.S.A.
jury-verdict
listed on the
form. That does not mean
should be
every
proffered by
factor
a defendant must be listed. See
that
103,
(sentence
Gerald, supra,
at
The State
that were
request, jurors
statutory mitigating factors on
defendant’s
they
precluded
finding
from
and
might
that
conclude
would
listed, possibly thereby
not
mitigating factors
giving effect to
merit for at least
violating
That
without
Lockett.
contention
First,
procedure
persuaded that a
that
reasons.
we are not
two
mitigating
those
jury
to itemize for
permits
defendant
possibly violates Lockett.
he or she relies
factors
which
listing non-specif
Furthermore,
importantly,
perhaps
more
does
diminish the trial
ic-statutory mitigating factors
not
mitigating
how
evi
jury
to inform
responsibility
court’s
must be told that the
may
its
dence
affect
decision.
mitigating
mitigating
factors is non-exclusive and
list
may
and considered
those listed
be found
factors other than
mitigating
are
non-specific-statutory
factors
whether or not
Brown,
479 U.S.
jury
on the
verdict form.
listed
California
(1987)(O’Con
934,
538, 545,
93 L.Ed.2d
107 S.Ct.
(“the
a whole—
nor, J., concurring)
instructions —taken'as
jury
they are to consider
jur[ors]
inform the
clearly
must
mitigating
background
relevant
evidence about a defendant’s
character”);
II,
Bey
A .2d887
(“The requirement
capital sentencing
preclude
must not
mitigating
consideration of relevant
circumstances would be
explanation
mitigate
hollow without an
the evidence can
how
imposition
penalty.”).
death
generally
See
Judges
XXXI.C.,
Capital
(1990)
Bench
at 141-42
Manual
Cases
(same).
less-paternalistic arguments
The State’s
that listing of non
specific-statutory mitigating
required
equally
factors is not
are
unpersuasive.
listing separate
The contention that
factors un
c(5)(h)
impermissible
der
counting mitigat
will lead
double
ing
previously.
factors has
addressed
See
been
State v. Pen
nington,
(“The
supra,
Common sense
the
that
determination
when evidence
of wholly-unrelated
pursuant
c(5)(h),
circumstances is offered
single
it is not
be
by
intended to
considered as a
factor
the
language
sentencer.
of
provision
permit
The
is too broad to
a contrary
example,
conclusion. For
a defendant could offer
childhood,
evidence of a violent and abusive
of his or her
potential
rehabilitation,
past
for
specific
and of
acts of discrimi-
against
nation
the defendant. To
that
consider
evidence as
probative
only
illogical
of
only
one factor is not
but also runs
requirement
afoul of the
that mitigating circumstances receive
II,
individualized
Bey
consideration. See
at
presented to the
Each circumstance must be
Defendant contends plain time constituted error define murder for right process to due law and and violated his constitutional argues sentencing determination. Defendant to reliable the crime of jury here defendant for because “the sentenced convictions, murder, prior its on two murder and based decision murder,” knowing legal its determina without definition of a definition Beyond impact suspect. tion is that absence 41-42, dire, supra had see may of murder have on the voir murder, error, 193-194, if 2d to define 594 A. at failure *40 appro here was the harmless. The determination to be made sentence, Biegenwald guilty of murder. priate not whether was underlying jury of of the The was aware the circumstances killing and knew that those had circumstances caused another jury guilty to find defendant of murder. Because jury was required permitted neither nor whether reconsider defendant guilty was charged only but rather was with determining the sentence, appropriate a definition murder of should not have changed process. its deliberative
Although educating potential jurors what constitutes mur der necessary for the court and counsel to an conduct (because depends effective voir “it dire common on the question circumstances” answer to the venireperson’s about a views appropriateness penalty unintelligi on the of the death is ble in the of a understanding by absence clear venireper son of the limited which penalty circumstances under the death may imposed), 41-42, 193-194, supra see 594 A. 2d at a definition of sentencing murder not essential to the delibera tion. agree We Judges conclusion of the Trial Com Capital mittee on prior-murder-conviction ag Causes that the factor, gravating 2C:11-3c(4)(a), appear N.J.S.A. “does not require further Judges definition.” Capital Bench Manual for Cases, J, J(2)-13; supra, Appendix Clausell, State v. cf. 298, 344, (1990) (court 580 A.2d on remand should aspects aggravating define of substantially factors that are not self-explanatory). permitted The is not to second-guess judgment prior jury of a a has convicted defendant murder; only it need know that defendant has committed specifies another murder. The murder statute the evidence prove admissible to that factor: regard Evidence offered the State with the establishment of a prior homicide murder fact, conviction conviction is an only admissible as [in prior * * * c(4)(a) aggravating (4)(a) paragraph factor under ] pursuant subsec- age tion include the of the the manner [c] may victim, of death and identity of the if victim to the defendant. [N.J.S.A. relationship, 2C:11- any, 3c(2)(f).] A understanding detailed of the murder statute is not neces- sary either to jury’s determination the existence c(4)(a) weighing factor or to its of that factor in the ultimate decision on the appropriate understanding sentence. *41 adequately conveyed by statute will be as used in our “murder” dire, trial, underlying or both. during voir the the trial court grounds, need not decide other we reverse on Because we adequate understanding “murder” was jury’s this whether effectively. it to deliberate c(5)(d) In- Mitigating from Factor of Intoxication 3. Removal structions no Mitigating Factors included Notice of
Defendant’s necessary, capital-sentencing proceeding a that tice should to prove would seek he wrongfulness of his conduct or to the
defendant’s capacity appreciate significantly of the law was impaired his conduct to the requirements conform intoxication. 2C:11- the of mental disease or defect or [N.J.S.A. as result 3c(5)(d).] sentencing counsel elicited During proceeding defense the tending to establish testimony Smith on cross-examination smoking marijuana night the defendant had been murder: having at some time when Mr. conversation, don’t you, You recall Q smoking girl? night
Biegenwald the car that pot told he was you A Yes. to the testimony, counsel returned emphasize that defense
To question: subject the final as saying in the car where you he had smoked You do recall him pot particular Q girl? stains with the
found blood Yes. A summation, Smith counsel reminded
In his defense night marijuana on smoking testified to defendant’s had summation, however, explicit no at- made murder. Rather, mitigating factor. develop as a tempt to that fact drug appeared use to defendant’s reference defense counsel’s prevent killing namely, for the focus on motive — violation„of (a drug use his reporting defendant’s from victim factor thereby aggravating refute police parole) —and c(4)(c). general, introductory jury charge,
In the court had listed eight possible mitigating point, all factors. At that in reading c(5)(d) jury, to the the court mentioned that that factor included impairing possibly intoxication as defendant’s capacity. mental However, when the court narrowed its discussion to the miti- actually gating factors advanced defendant the resentenc- *42 ing proceeding, deliberately intoxication, it omitted reference to e(5)(d)again reading jury both when to the when explaining and that factor. timely exception
Defendant took to the court’s omission of explanation c(5)(d). intoxication its The court refused to the amend instruction: MR. DIAMOND: Your the Honor, with the addition the Court, that please legislature in as to intoxication the time of the offense was put committed, jury drugs could instruct the also use you intoxication includes the as such
marihuana? THE COURT: I won’t. No, legislature MR. DIAMOND: That’s what the intended. THE COURT: I won’t instruct them. is MR. DIAMOND: There at the time the offense was committed. testimony going
THE COURT: Your is I’m not position clear, instruct them on intoxication. explanation No further for the court’s decision is evidenced the record. The verdict sheet also omitted “intoxication” from c(5)(d) the factor.
Defendant that claims the trial court’s refusal to include reference to intoxication in its mitigating instruction on factor c(5)(d)precluded jury considering giving the from and effect mitigating requires evidence and vacating therefore of the death sentence. The State contends that trial not court did err because was there no evidence of intoxication. The State precluded further contends that from consider- marijuana ing usage defendant’s on night the murder mitigating c(5)(h), under factor the catch-all factor. correctly points eighth
Defendant out that the amendment “requires juries given that instructions which allow them to ” evidence,’ give mitigating ‘consider and effect to quoting [the] 314, 2934, Penry Lynaugh, v. 492 U.S. S.Ct. (1989). previously This has indicated
L.Ed. 2d Court juries mitigating to consider all circum that must be allowed Bey II, at trial. stances advanced defendant emphasizes he 2d Defendant is not 548 A. 887. suggesting of intoxication would have consti evidence rather that the evidence prosecution, tuted a defense but supported charge mitigating as a factor under on intoxication c(5)(d). charge its
That trial court omitted intoxication from on c(5)(d) left intoxication out of the recitation of factor troubling, particularly because the trial on verdict sheet is language provision including refer court read the — jury in its initial overview of the ence to intoxication—to the gave explanation no for its failure statute but thereafter specific charge have intoxication its included plainly includes intoxication in its verdict statute sheet. c(5)(d) drug from intoxication can derive language. That Zola, generally. E.g., usage recognized alcohol *43 2C:2-8e(1) (defin 424, (1988); 384, 548 1022 N.J.S.A. N.J. A. 2d physical mental ing capaci as of or intoxication “a disturbance resulting introduction of substances into ties from the body”). denying Zola, trial had not erred
In held that the court we of on the defense intoxi request jury be instructed a that 425, 1022. reasoned that 548 A.2d We cation. 112 N.J. at * * * drugs must cause may attributed to but “intoxication negating to relevant of faculties’ to be considered ‘prostration 424, (citation 1022 548 .2d the offense.” Id. at A an element of 54, Cameron, 104 514 A.2d omitted) (quoting State no (1986)). trial court had “found reliable Because the 1302 alcohol, any less inca drugs much ingestion of evidence of substances,” ibid., such due to use pacitation judgment of [of] charge intoxication a as decision not we concurred capital murder. defense
54
Whether the refusal court below instruct the on decide, significant intoxication we constituted error need not grounds. because we vacate defendant’s sentence on other However, do that for admissibility we note the standards during of capital-sentencing pro consideration intoxication a ceeding comparable are not the same as the applica standards during guilt. ble the determination of See N.J.S.A. 2C:11- 3c(2)(a) (“defendant producing shall have the burden of evi ** * any mitigating dence of the existence of factors but shall regard not have a burden with to the establishment aof factor”); -3c(2)(b) (“defendant mitigating offer, may without regard to governing the rules admission of evidence trials, criminal reliable evidence relevant to the mitigat factors”); ing -3c(5)(d) (defendant’s capacity impaired as the “intoxication, result of but to a degree sufficient consti State, a prosecution”); tute defense to Smith v. 492 So.2d cf. (“some (Fla.1986) evidence, slight, however marijuana night Smith had smoked of the murder” held justify giving “sufficient to capacity instructions reduced and extreme emotional in capital-sentencing pro disturbance” Goodman, 1, 32, ceeding); State v. N.C. 257 S.E.2d (1979) (“[w]hen the defendant contends that his faculties intoxication, impaired by were such intoxication must a be to degree ability it affects defendant’s to understand and actions”); 103, 105, control his State v. Bellamy, S.C. (“if (1987) S.E.2d there is evidence that the defendant drugs,” could be under the influence of alcohol or court should charge mitigating relating circumstances capaci reduced ty). Videotape
4. Use of the of Dr. Eshkenazi process Defendant contends he was denied due when law he was forced to the resentencing proceeding use at five-year-old videotape testimony psychiatric expert *44 during original sentencing proceeding. witness made the Ac cording defendant, public to the of psychiat- denial funds for a the trial in 1983 denied him the expert ric witness before resentencing minimally-adequate defense essentials of a of in 1989. The mere statement that contention proceeding credibility. dubious manifests its public expert provide refusal funds an court’s Biegenwald’s clearly at the time of trial was not
witness indigent, showing There was no that defendant was erroneous. public legal entitlement funds for prerequisite a Moreover, public funds is irrelevant on services. denial process defendant had the benefit of the issue due because expert testimony from an witness. We are un- psychiatric public by defendant’s contention that the denial funds moved position counsel into a his trial 1983 “forced defense before videotape pay expert for an rely he either had to where during sentencing proceeding new pocket” of his own out 1989. Assistance of Counsel
5. Ineffective argues to use the Biegenwald that counsel’s decision assistance of five-year-old videotape constitutes ineffective (1) by only defense its use counsel waived counsel because mind”); c(4)(c) (2) (“depravity of waived factor aggravating testimony regard to without opportunity present by a 1985 amendment to N.J.S.A. permitted rules evidence as L.1985, 178; (3) improp 2C:11-3c(2)(b), introduced an see c. of fifth- to defendant’s exercise by prosecutor er reference rights. have some Those contentions and sixth-amendment however, note, prosecution in the appeal. theoretical We Ward, only evidence introduced of William for the murder proceeding capital-sentencing during defense counsel testimony of Dr. Eshkenazi at issue videotaped was the same here, life. jury spared defendant’s and there the ineffective-assistance-of- considering an
The standard for performance “if has been so counsel’s counsel claim is that probability that these defi- deficient as to create reasonable *45 56 materially conviction,
ciencies contributed to defendant’s the Fritz, constitution will have been supra, violated.” v. State 58, 336; Davis, at A. 105 N.J. 519 2d see supra, State v. 116 356, at 2d (holding 561 A. 1082 applies N.J. same standard cases). capital That adopted substantially standard un changed from the by Supreme standard announced the Court in 668, Washington, 2052, v. supra, Strickland 466 U.S. 104S.Ct. 674, Cronic, 648, 80 L.Ed.2d and United v. 466 104 States U.S. 2039, (1984). 80 S. Ct. L.Ed.2d 657 clearly Counsel’s conduct does not to rise In level. strategy, of great matters trial accord we deference to decisions of counsel: hindsight, suggest not strategies With it is difficult to different trial might assessing counsel have but the law is settled pursued, “[i]n ‘strategic thorough of counsel’s adequacy choices made performance, after investigation of law and facts relevant are plausible unchal options virtually Burger v. lengeable.’” 483 U.S. 776, 819 S.Ct. Kemp, 97 3114, [107 3139], (1987) (Powell,
L.Ed.2d dissenting) (quoting 673 638, Strickland, J., 466 supra, 695). at U.S. S.Ct. 80 L.Ed.2d at v. at 2066, [State Marshall, supra, 123 N.J. A.2d 165, 586 85.] Defendant not does contend that the decision use the video- tape was product thorough investigation not a of a of options circumstances and of preparation consideration resentencing notwithstanding proceeding, the conclusory by statement that counsel was “forced” financial considerations tape. record, moreover, use does indicate the investigation extent of counsel’s planning, any, if in prepa- proceeding. circumstances, ration for that Under the defen- dant’s ineffective-assistance-of-counsel claim based the deci- videotape sion to use the must denied because defendant has not identified the deficiencies that materially contributed his Fritz, supra, sentence. See v. State 519 A.2d 336. Aggravating c(4)(c) mind”)
6. Factor (“depravity of application
Defendant
portion
contends that
of that
c(4)(c)
mind,
relating
depravity
by
as construed
this Court
Ramseur,
197-211,
State
Were imposi seeking which the State relied aggravating factor on resentencing defen penalty proceeding, at of the death tion However, question. difficult might present claim a more dant’s conduct notice this defendant that his any requirement of clearly by other fulfilled produce capital verdict was could statute, specifically other-murder- provisions of the murder 2C:11-3c(4)(a). See N.J.S.A. aggravating factor. conviction acknowledge the construc though even Consequently, we Ramseur, c(4)(c)adopted by this Court tion of 208-11, 188, interpretation,” id. is a at 524 A.2d “broader 188, 205, approved Godfrey, its A. 2d than due-process clause not violate application to defendant did when as a crime an act lawful punishes neither because it crime punishment for a committed, more burdensome “makes commission, deprives after its charged one with crime of [nor] according defense available law the time when the act Ohio, 167, 169, was committed.” Beazell 269 U.S. 46 S.Ct. 68, 69, (1925); 70 L.Ed. Florida, see also Dobbert v. 282, 292, U.S. 97 S.Ct. 53 L.Ed.2d (1977) (quoting Beazell).
Ill
CONCLUSION vacated, Defendant’s death sentence is and the case is re- manded Law Division for resentencing proceeding consistent with opinion. this
HANDLER, J., concurring.
The Court vacates defendant’s death sentence and remands
resentencing.
It bases its
inadequacy
reversal on the
expresses
voir
disapproval
dire and
of the trial court’s refusal
*47
separately
jury
to list
for the
the mitigating factors under the
factor,
catch-all
2C:11-3(c)(5)(h)(c(5)(h)).
agree
N.J.S.A.
I
that
the inadequate
reversal,
voir
here requires
dire
and would add
that
separately
failure to list
mitigating
factors under
c(5)(h) independently requires
However;
reversal.
unlike the
plurality, I would
specifically
state
that
listing
individual
mitigating
c(5)(h)
factors under
constitutionally required.
is
I
would further base
part
reversal
this
sentence
on the trial
court’s
jury
failure to instruct the
during
on intoxication
addition,
penalty phase.
In
I continue
believe
to
that our death-
penalty
enacted,
statute is unconstitutional as
interpreted, and
see,
applied,
e.g.,
Marshall,
1, 214-15,
State v.
123 N.J.
586 A. 2d
(1991) (Handler, J.,
dissenting);
Bey,
v.
188-90,
(1988) (Handler, J.,
I Court, issue, by the merits aside additional brushed One independent ground for reversal. an serves as attention and dehumaniz- particularly his actions Defense counsel’s trial — during and his re- summation ing presentation of defendant mitigating evidence— videotape key five-year-old on a liance of counsel. of the effective assistance deprived defendant A summation, repeatedly argued counsel defense During his spare life so that to defendant’s jury should vote that in an effort performed on defendant research could be medical personality para- disorder develop a cure for anti-social to urged: point At one he noid traits. this here that he’s studied and is lives, if he person [defendant] Suppose, drug to that, is chance do by for adults. This society's that miracle
produces killing gain killing him? If we keeping What do we him him. alive, by by right, he is the him, opidimy [sic] person him alive and can study keep subject alive____ going find a better You are never who should kept subject going who person to find I submit you and are never you person him going use, study back to can they clinically, has had records with____ in his he have the cure for AIDS AIDS, body, If he had could him?____ ... save him, here hesitate say kill anybody would [W]ould you long as can. What’s the difference? him alive as keep you the summation. throughout theme to that Counsel returned thusly: astonishingly, Perhaps counsel concluded most up no has had value here, a human life tel! have you this, I life you day, life____ this until that, more than still a human But importantly but it’s added.) (Emphasis lives. save other a human life that may many have you sentencing phase lawyer’s at the defense function A jury, that convinces portrait the defendant create a 522, 545, Oglesby, 122 N.J. deserves to live. State defendant J., (Handler, I believe that (1991) concurring). A.2d 916 characterizing defendant his function betrayed here counsel being. human of worth as a devoid completely someone as defendant, essentially por summation dehumanized Counsel’s inviting lacking any human virtue traying him as *48 socially acceptable only his guinea pig, defendant as a to view client, his himself from counsel distanced doing, In so state. communicating jury to the repugnance the irremediable of defendant. He conceded that defendant did not deserve jury’s sympathy. To the extent that counsel had theretofore presented a mitigation, meritorious case in that case was shat- acknowledged tered when counsel that defendant did de- serve to live. capitulation complete summation constituted a to the position.
State’s It conceded that defendant did not deserve to live, urged spare jury but him use for the benefit of Supreme capital punishment others. The Court’s recent juris prudence develop system capital punish has striven to “a principled ment at once consistent and but also humane and uniqueness sensible to the of the individual.” Eddings v. Oklahoma, 104, 110, 869, 874, 455 U.S. S.Ct. L.Ed.2d (1982). respect fundamental for humanity underlying “[T]he Eighth requires Amendment ... consideration of the char acter and record of the individual offender and the circum particular stances offense as a constitutionally indispens part of process inflicting able the penalty of death.” Carolina, 280, 304, v. North Woodson 428 U.S. 96 S.Ct. (citation (1976) omitted). 49 L.Ed.2d Defense repudiated counsel respect humanity” that “fundamental “uniqueness” and denied the defendant his summation. addition, In presentation counsel’s irresponsible defense was arbitrary. if legitimately argued Even he could have that spared defendant’s life should be so that he could serve as a ground testing experimental drug, for an there absolutely no factual support argument. basis to There was no testimony any drug developed had been or could have been disorder; to treat defendant’s no there was evidence defen- dant testing compelled would consent to such or could be it; submit to and there was no evidence that the State would experimentation condone such or would use defendant for such undefined research. The risk that defense counsel’s bizarre theory conjecture, would pure wholly strike as if not ridiculous, cannot attorney be discounted. An his who treats
61 it with expect jury cannot a to treat mockery life as a client’s dignity. (1987), Fritz, 42, this 519 .2d336 Court
In
v.
105 N.J.
A
State
modification,
determining
adopted,
slight
the standard
Supreme
by the
of counsel established
ineffective assistance
668, 104
Washington, 466
S.Ct.
in
v.
U.S.
Court
Strickland
Cronic,
(1984),
466
2052,
States v.
80
674
United
L.Ed.2d
(1984).
648,
2039,
This Court
104
B relied Court, resentencing counsel defense As noted expert testimony psychiatric videotape five-year-old on a witness, Eshkenazi, Dr. during made original sentencing 54-57, trial. Ante 594 A .2d at majority 200-201. The arguments concedes that defendant’s reliance this vid eotape constituted ineffective assistance “have counsel some appeal.” theoretical Ante at .2dA at 200. seeming rely
Defense counsel’s decision videotape, on the *50 rather any than conduct investigation preparation new in for retrial, deprived this competent defendant of representation. Although defense counsel used videotape successfully had previous in a capital trial Ward, for the murder of William years trial occurred proceeding, five before this sentencing shortly original after the sentencing trial and in this case. Furthermore, although videotape been had used successful- ly trial, in testimony the Ward Eshkenazi’s failed per- had to jury suade the in the first trial for the murder Anna Olesiewicz.
Although any whether counsel investigation conducted new prior resentencing to the proceedings is unclear from the record, papers he in indicated submitted to the trial court proceeding planned before the to rely he solely on the videotape. Defense counsel he relying told on the videotape for “expediency.” There no is indication in the record, however, that sought defense counsel arrange to or change court dates so Eshkenazi testify would be able to in Also, person. defense never prior counsel intimated to the resentencing prevented that lack funds had calling him from testify person, Eshkenazi to nor did request prior counsel to the resentencing that the trial court payment authorize for Indeed, Eshkenazi as an expert witness. defense counsel never challenged, prior proceeding, subject to the the earlier denial of psychiatric State funds evaluation. See Ake v. Okla homa, (1985) (if 470 U.S. S.Ct. L.Ed.2d 53 sanity likely significant trial, is to be issue at State must provide psychiatrist defendant with access if defendant can one). not afford no consequence, evidence that defense counsel
As a there prior a new resentencing or whether investigated determined evaluation, by or either Eshkenazi some other psychiatric sentencing defense. The benefit defendant’s expert, would did make that defense counsel effort inference arises existing of defen- “update” or evidence uncover new evidence crime. at the time of the psychiatric condition dant’s possi investigate no effort to defense counsel made That factors, develop any other bility mitigating of other mitigating or evidence to counter State’s factors evidence factors, apparent. The record alleged aggravating also seems defense to the nothing defense counsel did to mount a reveals sentence, videotape. is inex except rely That death 577 A. 2d Savage, supra, N.J. at cusable. See State v. (“if additional information at presented counsel had defense state, phase regarding mental there is penalty defendant’s imposed jury” not have probability that a would reasonable (Handler, J., concurring A. 2d 455 penalty); id. at death (“total “prepara dissenting part) forfeiture” in part and *51 mitigation consti presentation” of defendant’s case tion and counsel, knowing assistance). Defense tuted ineffective old, sought other should have witness videotape years was five factor, es, existence of the catch-all particularly to establish the c(5)(h). two-pronged a test ineffective adheres to
The Court assistance. This counsel’s was deficient. the defendant must show that performance
First, showing was not errors so serious that counsel that counsel made requires guaranteed functioning the Sixth Amend the defendant by as the “counsel” preju must show that Second, performance ment. the defendant deficient showing errors were so serious that counsel’s diced the defense. This requires is reliable. trial, fair a trial whose result the defendant a as to deprive showings, it said that the conviction cannot be Unless a defendant makes both from a breakdown the adversary process or death sentence resulted Washington, 466 U.S. at [Strickland the result unreliable. renders 80 L.Ed.2d S.Ct. 104 693.] priorities That defense counsel had other than his client is very sought proceed quickly clear. He to with the case.1 For one, impatient he intimated that he was the voir dire paid. he getting because was not He also opportu- declined the nity videotape to edit the in order to remove indications that the tape court, was old. Defense counsel instead told the “Just let fly.” it Many counsel’s decisions seem hasty to have been impatient though even apply any pressure the court did not proceedings. advantage to accelerate the I can see no tactical videotape in the to a death-penalty decision use stale in a case. Defense himself expedient. counsel described the decision as prepare adequately That failure resentencing for the denied defendant the effective assistance of counsel. dire, employ system, 1In Voir defense counsel declined to a struck even though way trial court went out of its to make clear to defense counsel that gladly jury system court would use the struck court was in no hurry. THE COURT: Mr. Diamond? any objection voting right MR. I DIAMOND: won’t have these up may go through now and see what we end with. We not have to 45. moving previous Seem to be lot better than we did in the trial. Why go through people might we should for another week when we have the first 14 or 15? Why go through morning you THE COURT: don't we this and then if want it, sure, try way, doing way it that I’ll do that intermediate because if so, go morning through probably people we this we’ll have about 20 I now, 13, guess, many qualified. would we have how Now, know, starting you I don’t think there’s sense in now because
just going go through again. process you one is to make us Are in a rush? MR. DIAMOND: Rush? you THE Are COURT: in a rush? interviewing people, I MR. DIAMOND: can’t see the first 20 will do it. you THE That means are COURT: rush. started, get going MR. I DIAMOND: would like to I don’t think we’re many jurors. need that stay MR. He’d like DIAMOND: here forever. (Laughter). got plus plus THE COURT: I know it will take 14 I I and know have *52 jury. a solid going many. MR. I DIAMOND: don’t think it’s to take that
65 II sentence of death. vacating of defendant’s in the I concur GARIBALDI, J., dissenting. Bieg- of Richard death sentence
Today the
vacates the
Court
yet
and remands for
Anna Olesewicz
murder of
enwald for the
proceeding.
majority
The
concludes
penalty-phase
another
I
disagree.
I
constitutionally deficient.
voir dire was
adequate
and that
voir dire was
that the overall
conclude
impartial
due: a fair and
his constitutional
received
defendant
majority’s ruling and
from the
I dissent
jury. Accordingly,
death.
sentence of
affirm the defendant’s
would
I
Voir Dire
Overall
impartial jury.
is the creation of an
dire
purpose
The
voir
409-10,
(1988)
393,
128, 155, (1991); Hunt, 330, 354, 590 2d 624 A. State v. 115 N.J. (1989). 558 2dA. 1259
Determining whether a voir dire is adequate requires an
examination of
entire
is
record.
It
a fact-sensitive task.
As
previously recognized,
this Court has
process
the voir dire
frequently
“rhythm
on a
Dixon,
takes
of its own.” State v.
125
223, 244,
266,
(1991);
Moore,
N.J.
593 A.2d
276
State v.
122 N.J.
420, 447,
(1991).
judge
sit as a fair trier of fact.
such
impartial
evaluations are
Consequently,
juror’s
during
necessarily
an observation of
dependent upon
demeanor
course of voir dire —observations which an
court
from
appellate
precluded
making.
him from
juror’s
insulate
Although
will
always
impartiality
professions
e.g.,
N.J.
Deatore,
State v.
Jackson,
State v.
cause, see,
supra;
[70
excusal
e.g.,
weight,
(1976)
great
see,
deal of
will
accorded
We measure tone, any one by its and character prospective venireperson. State response one of a of the court or question (1988); 384, 397, State v. Zola, 548 A.2d 112 N.J. 256-57, 188. Unlike the Ramseur, 524 A.2d supra, 106 N.J. at record, I find reading this “unanimated” majority, after sufficiently probing to weed out a whole was dire as voir cor- ability to decide defendant’s jurors whose any prospective impaired. was rect sentence spanned
The days. voir dire three The trial court took precautions in conducting numerous prospec- the voir All dire. jurors completed tive a questionnaire. questionnaire con- general questions concerning age, tained juror’s marital status, age children, and sex of occupation, physical condition, defendant, familiarity witnesses, prospective case, lawyers juror in the whether the or a member of his or family employed her close friend enforcement, was in law charged had ever been with a criminal violation or had ever potential been the victim of juror a crime. Each also was asked whether he or had heard of involving a murder case she any they defendant from source and whether had discussed anyone. Finally, juror defendant with each requested was any personal disclose or prejudice they bias believed would disqualify serving juror. them from as a prospective
As juror questioned each individually, was court questionnaire inquired reviewed his or her about example, answer that raised a For prospective concern. if the juror young young woman or had family women mem- bers, the court would ask whether that fact would create a bias *55 against a murdering young defendant convicted of a woman. Invariably the court- also venireperson asked each if he or she any preconceived prejudice had against psychiatric bias or testimony. general
The trial court’s potential jurors instruction the to set the tenor of the in early proceeding. voir dire the judge The that have to point [is] you evaluate the will the yourselves, explain case to introduce the you, various connected it and have to people you objective listen and would I then to able be fair and and say on that impartial case? Could I be all minded? Could I listen to the open witnesses listen to judge the and then call it fairly? along get And if think there, but the line sit someplace yes, fine, you you if gee, oughtn’t juror the idea that I abe on this case for whatever maybe * * * reason, juror that’s the [w]ell, is entitled to okay. their ... Everybody opinion [but] just forget sitting deciding not should about law are when the case. they jurors an to follow the law. But ever take oath observe the to law, you if
got juror ain situation that yourself like where are a you prospective you okay. feelings, you strong feelings, but entitled to the have You are juror particular that case. That's all we as on do not sit try should jury selection. [*****] [***] right things such as the answers or there are no that I you want assure questions put, we wrong or either written answers questions All we want are honest answers. You know we’re the oral questions. give an honest trying standards. us Try to measure you somebody’s we and that’s all ask. evaluation of yourself fudge on should kind of an answer same if some reason token, you theBy ought to answer, fail to answer a question you really questionnaire right thing, because we need that frank response, not be the openness, would miscarriage something, result in a terrible it could otherwise if conceal you justice added.] which wants. nobody [Emphasis beyond dispelling the notion that there went That instruction Dixon, “right” answers. See were they impressed A at 277. It .2d duty or possibly compromising their anything report should On judge, regardless of when it occurred. directly to the oath following occurred: closing arguments, morning of chambers.) (The following was recorded just make a record of me, talk with we will have asked to THE COURT: You going on? so know what’s it we something I know. Right. I out didn’t weekend, found A This JUROR: THE Yes? COURT: never who met, seen, who I have never husband’s brother THE JUROR: My I aware of. which wasn’t Prison, he’s Trenton State consider family, I don’t juror? affect as you Would that THE COURT: thinking, a mistrial. I don’t want to cause I was Well, no, THE JUROR: man But didn’t know this about that. Well, you don’t worry THE COURT: him? never met all, brother, you husband’s your No. THE JUROR: he’s is information over the weekend have learned So all you THE COURT: Prison? in Trenton State night. Right, he called Friday THE JUROR: message for your did he have a called, specific When he THE COURT: husband? No. THE JUROR: anything than that? more didn’t to you And husband say THE COURT: your *56 doing? than how are you More THE JUROR: about his telephone husband say did your you What THE COURT: with his brother? conversation Nothing, THE he told had JUROR: me called. Tommy how THE COURT: But did discover was you his brother then? somebody jail, THE He told I knew I me, JUROR: his brother was in didn’t know where anything, and— or why get nervous, THE COURT: Don’t I understand where Okay. you that’s are, all. You knew had a a husband brother who was kind of your ne-er-do-well, jail in criminal of some sort someplace? THE JUROR: Yes. until THE COURT: the weekend didn’t know where. You tell me Up you got additional bit of information was—where was Trenton you it, State only Prison? Right. THE JUROR: asking going I’m Now, THE COURT: bottom is that line, affect you, you knowledge deciding in somehow, now, affect somehow case? you this THE JUROR: I don’t it No, see would. why THE COURT: You are the one who can tell me? only THE JUROR: doesn’t make No, difference to me. go jury THE COURT: Do me a favor, back to room. Don’t Okay. anything mention to the about what we have talked here. about Sit tight, talking I’ll be to the If let lawyers. have I’ll know. they you problem letting But thank much me know. you very (The chambers) juror leaves the record, THE COURT: On the with the counsel in chambers here. Mrs. morning Robinson indicated to the Court officers this that she wanted to brought with me and her in I here with the and I asked her speak reporter what she wanted talk and said this: about she That she didn’t know [to] up night until that her husband’s brother was an inmate in Friday prison. She did know before that her husband had a who was kind brother Friday jail ne’er-do-well She has never met the brother, someplace. night never talked to the her brother, but the brother called Friday said, how are And the husband indicated to her and all he "Hi, indicated to you?” calling her was "That’s from the State brother my prison.” I asked her on the “Do think record, that would somehow affect you your judgment juror?” here as a And she I said, “No, don’t know it would.” why I Go I’ll room, back talk to the and if said, “Okay. lawyers they have a we’ll with touch further.” That’s where we are. problem you MR. I DIAMOND: have no that. problems MR. FAGEN: I sure would have liked to ask her more Well, questions. bring THE COURT: I’ll her in if want more you questions. give thought? MR. FAGEN: Well I it some may rushing. THE COURT: I’m not Okay, Fagen THE I COURT: have asked Mr. whether he would like to.question juror further and said— he MR. FAGEN: No. *57 to allow her to it’s to both sides And I understand satisfactory
THE COURT: continue? MR. DIAMOND: Yes. a exhibit concerns and behavior Juror Robinson’s
Alternate recognizing the solemnity her task and juror educated to the impartiality but only fairness and on-going need to assure not impartiality. fairness and appearance of dire can an by reading the entire voir appellate court Only trial court’s voir dire adequate. The whether ascertain Zetkulic, Sacchi, Chang im venirepersons questioning overall voir the character of the indicative of presses me as unearthing potential dire. of the court persistence “to air their forcing, allowing, indeed prejudice and Hunt, words, in their own penalty” views on the death the ade demonstrates 558 A. 2d inquiries. quacy of that court’s gave are the truth I us on this the answers Zetkulic, questionnaire Mr. you Q
take it? A sir. Yes, long indicate that now, time you in Monmouth County you You have lived Q during long juror have lived here? time that you have served as A Yes I do. long ago that? How Q ago, Honor. A A round three years your Here at the Courthouse? Q
A Yes. juror? on as a cases have sat kind of you may Do recall what Q you I sat on? A The one was it? kind of case What Q charge of A It was criminal rape. through go to a verdict? all the Did way Q you A Yes. sitting juror on that Anything case, any impres- as a about Q experience might in one or affect way which feel you have formed you sions you may juror sitting case? as a on this another sir. so, I don’t think No, A have may with a sometimes case, you difference, obviously, rape There is a Q something the result of feeling that nature as strong about process feelings? strong those don’t have service, very you your A sir. No, Biegenwald, You did cheek off the fact that have Q heard of Mr. you and that involving read of a case him? you A I read it at the time of the I read the case, about but it, as I newspaper anything, forgot. I didn’t discuss it or indicated, I really reading, What do remember Q you about that’s the next question? anything, A sir. Hardly reading? what do
Q Well, remember you *58 A That it was just— a—what shall I quite say sensational, you know, — Aside from the fact it Q have made headlines, what content do may you recall, what facts? something something A I recall something I mixed it about, maybe else, parking something in like it was lot or like that, if this is the I one, don’t but that’s know, all. something parking You recall Q about lot? A I sir, couldn’t I Yes, did not hear of it. say n Okay, trying figure might that’s What we’re out is what be still Q fair. your in the back head? anything,
A Hardly Honor, because I don’t recall your what it was all fully about. right. saying All juror Are if Q that should you sit as a on this you case in jury box, would decide the you of what the question is proper penalty based what hear in this solely upon Courtroom? you A I believe so, yes. And whatever it that faint Q is, have, will memory you you put aside, saying?
that what are you A I think I would. Yes, asking memory We’re wouldn’t big want a out to be Q blossom —we faint your decision in this case? affect
A I understand. You don’t think Q that would?
A I don’t think so. No, One of the Q there are is the death possibilities, two, What only penalty. concerning are views your death penalty? A against I have no firm conviction either I think that I’m not it way, and I’m for it. I would for it in certain totally circumstances. depending Q So Okay. circumstances? upon A sir. Yes, saying depending that’s good things Well, another Q way and the upon things
bad that are revealed to in the courtroom? you A I would so. say put mouth, your I you saying? don’t want to words in that’s what are Q justified. A I would think I would have to find own mind whether it’s my go things either for the depending come could out, how you But it’s Q upon right with no life parole it’s or for imprisonment if think death penalty you 30 years? sir. A I think I could, yes, morning this will be psychiatric as I indicated of the testimony Some Q given Dr. Eshkenazi. to us which will be
testimony just anything as such that about testimony think there’s psychiatric Do you might it or it to it or sort of put not listen poo-poo make feel you would you aside? feeling about it at all. A I have no No, of the other? One
Q way A sir. Yes, saying it? would listen to Are you
Q you judge it on its sir. merits, A I would listen to it and [********] there and a seat in the room Mr. thank take Zetkulic,
THE COURT: you, this engage are ahead of with the who you don’t discussion right. it’s all the weather or if want to talk about case, sports, you sir. added.] A Thank you, [Emphasis responses court, perhaps by the tone of influenced
The trial follow-up questions responder, asked or the demeanor *59 service, knowledge of prior jury regarding possible effect of testimo- case, penalty, psychiatric Biegenwald the death suggestive. nor questions neither close-ended ny. Those were to Furthermore, misunderstood they if could have been even misunderstanding by so, dissipated the effect of that the court venireper- put to words stating that it did not “want [the mouth.” son’s] also demonstrates venireperson Sacchi
The voir dire of dire. much of the voir patient probing that characterized was or some member your family You did that either Q say you personally the victim of a crime? A Yes. that about? What was
Q A It was an assault. Who?
Q A mother. My long ago How was that?
Q ago, A two she answered the door her house Approximately years and she gun was at accosted point. [********] find the Did who did it? Q they person A and I did, believe he was They convicted, yes. anything Is there about mother’s Q which was a your experience certainly terrifying that has one, affected where it influence you point may your
judgment some how or other here? A It has in because it an emotional I way was was experience. upstairs going I the time and wasn’t aware of what was So I downstairs. felt I could something, have done a duress for mother. quite my But understand that Q incident? you separate A Yes. linger You think the of it onto the Q would where when memory point you might came to decide what the is in this it case, affect appropriate penalty you coming decision? A I sure can’t be of that because— trying can be Q Well, nobody sure. We’re to probe you? A I understand. Yes, You understand how will work? Q this case A Basically. Because what will so are is that Q there will be Okay. you clear, happen, aggravating information as evidence to what call presented you, factors they mitigating aggravating factors, and in shorthand form the factors are the mitigating minuses if are you will, factors insofar as the death pluses is concerned. penalty And then the end of I’ll the law that to the presentation explain applies weighing when come to do the of those and minuses. they pluses I Do think would be able to listen to the law you as you explain it, accept given then make own evaluation that, of the evidence that’s your independent right come to and then a conscientious decision as to which is the you penalty being one without influenced mother’s by your experience? A I would that I would be—I think I can do hope that, yes. juror You served as a Q have before yourself? A Yes. that? When was Q ago Bergen A Must have been about four Hackensack. County, years what Remember kind of case it was? Q A Vandalism. juror Anything anything about that as a about what Q experience you judgments during again heard that case which feel would affect as a you your
juror sitting are if here? you *60 A so in I don’t think no. case, is a Dr. I indicated to as witnesses who will testify One Q Do have you any pre-conceived Eshkenazi is a Dr. psychiatrist. Eshkenazi. value of testimony? about the psychiatric notions it can be feelings can be—I feel about psychiatry A own personal My misleading in own misleading my so—it can be I don’t think in some respects, opinion. is The question hands of some psychiatrists. it can be in the Well, maybe Q be do think that him, listen to you you’ll Dr. will Eshkenazi, see you here, you’ll deciding valuable you is testimony decide whether his testimony able to just here comes will should be or you say okay, what the appropriate penalty paying him? forget attention to any about another psychiatrist the rest of the it would know, probably lay I’m a law I don’t Well, man, A where it is. I don’t know evidence, and there man medical man or professional talk about kind of You can any Q good and bad in are any profession. A Yes. just wrong you tell me I’m wouldn’t simply you wouldn’t take You Q if — it — forget about it? and say backhand testimony psychiatric No I wouldn’t. A certainly view of that? what is your as to the death And penalty, Q feeling I is yes, or not my be appropriate. A That it could appropriate I’m — believe. do Yes what? Q for that. A I’m it all the time? For Q I don’t it, can I because —how say it’s hard to answer well, feel
A I that— I mean— that. if can rephrase know you you trying trying prompt to— we’re but I’m not Q right you trying give answer. A I’m the heart? right the answer me answer. Give There’s no from Q tell me— A Could you death about the penalty? do think What Q you right. A I think it’s time? all the follow up question, In all cases, my Q guess no I there’s— I’mOh, A sorry, sitting Are murderer. Biegenwald you there as a Mr. In other words, Q going further? get going death without penalty to say you be fair. A it wouldn’t No, doing Might that? it wouldn’t be. you course Of Q about it to be fair I would tend do that. I wouldn’t No, consciously A if that answers judgment your question. own, wise my with, just please we you me Well, see, have no answer that there is Q — want to know little— it’s a it really, know how to phrase A I didn’t *61 good weighing good Well, and minuses, bad, and bad Q pluses always go the could indicates one or another. I’m so sure not that possibility you way exists for possibility you. strong feelings being A I had some about the death more sort of very penalty, in that honest That’s proper my respect. opinion. THE COURT: other questions? Any MR. have a DIAMOND: Could we brief side bar? THE Sure. COURT: (The sidebar.) following was at recorded THE COURT: I’m inclined to excuse him for cause.
The Court excused for cause. Sacchi voir dire of Sacchi captures
The
approach
the trial court’s
voir dire. “We’re
and attitude for
trying
probe you,”
“you
wrong,”
tell
if I’m
“I’m
trying
prompt you,”
me
“there’s
answer,”
right
heart,”
no
“[g]ive
your
the answer from
you
“there is no
please
answer that
have to
me with” illustrate
deeply
willingness
court’s
to delve
when it
a
believed
Dixon,
v.
venireperson
forthcoming.
than
State
was less
See
supra, 125 N.J. 593 A .2d
at 277.
court’s directness
refreshing
is
“plain speaking
get
because
is the
way
best
Moore,
predisposition.”
such
N.J. at 445-
46,
Typical also of trial openness questioning court’s regarding juror’s penalty a on the following views death is the exchange potential juror Chang: between the court and the death a we Since choice would like to know what are Q possible penalty views the death your penalty? A I it, don’t know what to make of I Well, really because never really, yet, go through have to that And as far I see as about the death it myself. penalty, good good thing, has some bad and some a is that one points point points, won’t have to the criminal. And spend taxpayers money support thing is bad that can encounter fact a be could innocent you always person killing doing and in that So are criminal. person. you yourself doing I hear didn’t what? Q that, by doing A incorrectly are criminal. By you yourself Aha. would Q Well, how that affect are entitled to those you, you okay, juror? how would that affect if selected views, were as you you
A I would feel do I could, bad if I didn’t the best I do the best I can based on good what evidence if I me, shows did I didn’t make a then I bad, choice, would bad. feel feelings all those have would. But with you I’m sure Well, anybody Q juror? to sit as a would that react on your ability how now, according to me and if I made that I I do to what’s do, A Whatever presented to me. I made it because that was what presented choice, saying want to be sure? Are that you Q you right if I made that choice because choice, sure I make the A I want Yes, just thought I did it it, it when I about not because hastily. I did flipping a coin. You understand this not Q *62 putting a in line. A are Yes, person you there do believe if sat those views have you you In line with you expressed, Q sitting imagine to on there will be evidence there, presented you are now, you aggravating factors and there will be evidence presented called these what are mitigating be able to listen to both of factors. Do think you’d to on you you through come to a decision based them and evaluate them and them and sift as I’ll it to you? the law explain upon A I could do it. Yes, [********] asked, Chang’s voir dire it the court as ending
Before Ms. fol- did, questions?” The invariably “[a]ny additional almost place. lowing dialogue then took Chang stated one of Honor. I believe Miss Yes,
MR. DIAMOND: your having was the alternative of she had with the death penalty problems the cost factor. to take care of person, THE COURT: Yes. taking care of one is death or the State alternates, MR. The two DIAMOND: the cost decision, his would that affect life, this for the rest of your person factor. that I’m a taxpayer would think to yourself THE COURT: As a you taxpayer, and not— paying I vote for the death penalty this and therefore will him? kill him than feed words would rather MR. DIAMOND: In other you first? Let her answer my question THE COURT: know if that I wouldn’t even exactly I see the A. don’t Well, money anyway, taxes. has been by my supported person deciding as to going when are to be in mind you THE Is that your COURT: death or not? to penalty whether impose death or life, deserve mind should is, person A what would be No, my going it’s don’t even know if to Ime, and whatever is all, really that’s presented going paying to matter, him it’s not maybe because to make difference of cents. couple thinking going dollars and cents? are not to be You Q going just it’s whether be, person course not. I wouldn’t A ofNo, anything going else, think of going I’m not as but die, that, live or simple if a of difference person— make a whole lot doesn’t really money THE COURT: Bottom line value is human life? Right. A. Chang’s
Ms. voir dire was then concluded. (voir foregoing examples Each of the Zetkulic, Sacchi, dire of Chang general instruction) as well as the combines with the admittedly-proper venireperson voir dire Russo demon- sufficiency strate the overall of the voir dire. majority points to the juror voir dire of Mitchell to
provide “a sense of approach the court’s qualification.” death 36-37, However, Ante 594 .2dat A 190. the majority ignores responses Mitchell’s actual and does not consider the effect of the non- or extra-verbal modes of communication and observa give tion that trial overwhelming courts an advantage over appellate courts in assessing the venireperson’s character of a responses. “We can from an occasional profit reminder of the limitations that our isolation ** * from the courtroom on a full of the trial imposes appreciation dynamics. although
A bloodless record conceals subtle nuances; we cannot sniff always them do not judges.” out, often detection they our trial escape Gilmore, [State N.J. (1986) (Clifford, 511 A.2d 508, 547, J., dissenting) (quoted Ramseur, supra, in State v. at 188).] 524 A.2d Instead the majority focuses an ensuing colloquy between *63 court, counsel and during the which the court said venireper- of response, son Mitchell’s may “You not like that answer but it’s absolutely the correct answer.” agree
I
majority’s
with the
point
abstract
sugges
that “the
tion in
colloquy
the
that there is a ‘correct’
open-
answer to the
question
ended
your
‘what are
views on
penalty?’
the death
most troubling.”
Ante at
79 * ** 856-57, questions voir (“[rjelevant at 857 dire 83 L.Ed.2d exclusively language in the of the control need not framed be is, all, opinion after ling appellate opinion; division an will”). imprecise in a An devise opinion and not an intricate (that “qualifying” answer a “correct description calling one”) court belies the re exchanged between officers actual, accept rather than the peated attempts here elicit able, jurors. beliefs indeed, did,
This conducted a voir dire that “draw trial court biases, views, juror’s and inclinations potential out the opportunity provide[d] counsel and court the both [that] at at venireperson’s demeanor.” Ante A.2d assess the an intent to elicit certainly court never exhibited 192. The trial Dixon, supra, 125 v. “correct” answer. See State (voir attempt not questions “did 2d at dire A. fact, mode”). specifically In any into the court force the importantly, More focus any such notion. against warned dialogue court and defense ing only between trial on the rather than on Mitchell’s voir Mitchell’s voir dire counsel after itself, erroneously concludes that the voir majority dire I agree with the Court’s juror inadequate. Mitchell is dire of have been more Mitchell's voir dire could observation suspect I same could be said voir probing indeed, — — at-, Virginia, U.S. dire. Mu’Min Cf. constitutionally (“[t]o at 504 be L.Ed.2d S.Ct. might questions such enough not compelled, it is However, certainly adequate. dire helpful”). his voir (O’Connor, J., Ibid.; at-, 111 S.Ct. at id. see also more” does (that judge could have done “the trial concurring) violation has Amendment automatically mean that a Sixth occurred). MITCHELL,
RANDALL sworn. BY THE COURT: EXAMINATION lived us that have family You tell there, you your Take a seat please. Q live *64 Oceanport? two where did before you for years, Oceanport that. Beach before before that and Bradley A Toms River during You Q indicate that some Okay. time had period heard you Biegenwald. Richard How did that occur? through A Just back that time. papers ago? Back Q some years A Oh, yeah. through Do recall Q what it was read you back then? papers you just having A I have read the No, seen it in the name, papers. In what context? Q InA relation to some of a trial type or, know, have stories that you you you don’t know the contents but about remember really certain individuals that you were that’s it. involved, about right. All When Q that’s about say it, is there fact you any precise you remember from that time or from whatever read? you just A it a no, was name, because I have Actually, only lived in the familiarity for a number of county years. Q None of members or your have ever been connected family you with police anything work or Prosecutor’s office of that nature I take it from your answers? A Correct. These
Q answers are all true answers? A sir. Yes, juror You have never as a Q sat before? A have No, sir, I not. Bridgewater You manager Q work Wholesalers and are the you a is that? wholesale —what building A it’s Well, basically materials, wholesale. Building Q materials wholesale? Right, A in Somerset up County. right. manager? All And wife Q is a dental your office Right. A girl age You some Q have small have children, a who is I you see. The young anything victim in this Anna a case, Olesiewicz was female, there’s about having young daughter young a going and a female victim that think is you juror? affect decision if as your should sit you daughter A I think No, don’t one of the so, reasons is primarily doesn’t my live with she lives with the mother. me, right, all Q Well, wherever she lives, is still the same? question A No, that doesn’t seem to create for me. problem right. obligation All Q here in this trial is a limited one as I to do explained, has with which to this situation penalty based appropriate aggravating mitigating factors that are upon factors are presented Unless words those throw I don’t think presented. you, but they should, aggravating things factors would those which would tend lean you mitigating towards the death factors tend would to lean from penalty, you away *65 death and life with no for 30 toward penalty imprisonment parole years, are the those two options? A Yes. generally think Since death is a what do about Q you possible option,
death penalty? something A It in certain cases and sometimes it it’s not that I doesn’t, applies goes go have taken a on that it or doesn’t in cases. position definitely, There are some think the death should never Q people conscientiously penalty are entitled to that view. That’s not view? imposed they your A No. if hard-nosed and more, will, There are also some folks who are Q they you
would if there is murder involved whoever is convicted of that murder say get Are of that should the same death you persuasion? penalties, penalty. weigh A I think have to each case its merits. No, you Dr. Part of the evidence that will be is that of Q Okay. presented you Anything he’s a I mentioned his name Eshkenazi, psychiatrist. yesterday, than about which think is less psychiatric testimony you worthy acceptance other kind of medical testimony? maybe A in some cases it’s valid. No, sometimes, very after have heard all the evidence on the At the end of case Q you aggravating mitigating explaining all the who sit I’ll be factors, handle those and what of law to the decision. how should they principals apply obligation I under oath is to the law as I tell your accept explain you your as to what think the law is or it and not to substitute for it own views you your ought it think can do that? be, what you you A I do. Yes, sir, knowing Sitting think that if it’s to all of us, you there now and Q important juror able to listen in that sit, are selected as a on this case would be you
you
make
evaluation and then
before,
minded
that I have described
your
open
way
objectively and
and do that
fairly
decide what
is the
penalty
appropriate
conscientiously?
A I believe so.
right.
juror? All
THE COURT:
additional
prospective
Any
questions
seat in the
room
there
Then thank
Mr.
will
take a
Mitchell,
please,
you,
you
I didn’t ask.
case.
one
Oh,
are others
don’t discuss this
there,
question
anything,
reading
listening to
I
about not
was very emphatic
Yesterday
anything
I
there
have been
that has to do with this case. Now understand
may
something
something
night,
I understand there
have been
on T.V. last
may
listening?
reading
Did
do
paper.
you
night.
I fell
last
A I chuckled
because
asleep
only
anything
good,
right.
see
on T.V.
before
fell
did you
All
That’s
Q
you
asleep
morning
to see?
have a
you happened
and this
did anybody
newspaper
brought
I
some of
own
A No
my
paperwork.
bring
don’t look at any newspapers.
THE
own
COURT: Okay,
your
paperwork,
MR. DIAMOND: Your Honor there is one
I
had,
number
question
19, ever
involving
juror
heard of a murder case
believe the
said he recalled the
—I
headline but not the
here
is a
but
there
mention he
facts,
said
specific
yes
having
of a
his
case,
heard
murder
recollection then is of a murder and I would
like to
of that.
inquire
Biegen-
THE COURT: Of the
said
recollection
had about
you
you
Richard
wald,
connection
the murder?
A Not
no.
really,
THE
what
COURT:
that’s
checked
Well,
here?
you
*66
get
A It was—I tried to
checked it
I
that —I
because wanted
only
to have an
to
it to
explain
you.
opportunity
THE
it?
COURT: Okay, explain
A It was a
a
situation, name association with
case
hit the
if
you
papers,
long enough
live in the area for a
time
name,
of
oh
I
period
remember
yes,
anything
but
not
that,
remember
about it and
you’ll
that’s
what I was
basically
trying
nothing
of
there,
I heard
it but
it.
say
yes,
about
Biegenwald
THE
Of
COURT:
Richard
in connection with murder?
Biegenwald
A Of Richard
but not with relation to
crime.
specific
any
Generic
of
Q
crime murder?
A What
I’m
question,
sorry.
coming
The
Q
is, before
here
had
ever heard of a murder
question
today
you
involving
Biegenwald
case
Richard
from
source
either
whatsoever,
any
today
Biegenwald
involving
time
Richard
of a
any
murder case
Richard
previously,
Biegenwald and you checked yes?
Biegenwald
A
I was under
Yes,
was Mr.
impression
question
reference to whatever the
situation
be and
or less
more
happened
you people
have
what
identified
the crime had been.
Biegenwald
I
Oh,
said
Q
because
this is murder case and
had heard
you
that’s the association that made
check
you
yes?
A Yes, sir.
right.
THE
All
COURT:
Thank
same
you,
spot.
A Okay.
The voir dire Mitchell,
the majority
which
holds out as
illustrative of some inadequacy, actually
per-
demonstrates
open-mindedness
sistence and
of this trial
The court
court.
initially
open-ended
an
question
penalty,
asked
death
about
questions
concerning previous
defendant,
five
knowledge of
questions
two
potential
impact
related to the
of the victim’s
status,
question
and a
appraisal
about
the use and
of psychiat-
testimony.
ric
responded positively
trial court also
counsel’s request
inquiry
for further
and asked at
least six
questions regarding
prior knowledge
Biegen-
more
Mitchell’s
exemplifies
The voir
of Mitchell
how
or his crimes.
dire
wald
Williams,
court,
repeatedly
asked
this trial
unlike
court
requested by counsel in
order
“follow-up questions
1172.
explain” previous answers. 113 N.J.
550 A.2d
Finally,
pry
respons
failure to
into the terse
the trial court’s
change my opinion
does
that the
venireperson
es of
Black
not
constitutionally-ade
general
of that voir dire was
character
reasons,
from
quate.
apparent
A
the written
host
record,
acceptance
may
the court’s
of them
have contributed
inquiry. Defense counsel also declined to ask
without further
believing
venireperson, apparently
of this
questions
further
enough
about her from her re
he had received
information
during
Such
sponses
questioning.
and demeanor
conduct
impression
strengthens my
adequacy
of this voir
counsel
396-97,
Zola, supra,
2d
This voir dire met standard historic of voir purpose lated and fulfilled the dire. Courts long process dire but have stated that voir is not selection 68, 71, Missouri, rejection. Hayes one of v. U.S. See Moore, 350, 351, (1886); L.Ed. S. Ct. *67 864; 259, 454, Manley, v. 54 122 at 585 A.2d State N.J. N.J. 280-81, (1969). Manley, 255 193 In we defined A.2d dire, noting that scope of voir purpose the and begun] the function which was assist in the counsel to subvert to [had jury impaneling jury using it to educate the on the of an by panel impartial against prejudice jury for or of a to case, party, facts particular particular argue jury, indoctrinate the to induce use to case, by in a or otherwise to commit themselves vote particular questions hypothetical at 255 A.2d or to them in matters of law. N.J. 276, 193.] instruct [54 way, inescapable is that impression We went to observe “the longer partial unfit or of is no of or the aim counsel exclusion jury of a favor- jurors. as It has become selection biased through the indoctrination party's point to the view as able can or assumed facts and rules of law questions medium of 281, remedy 193. To the situation accomplish.” at A.2d Id. l:8-3(a), adopted Rule this Court the basic intent of which was to the voir dire conducted or exclusively by have * * * through judges to the trial the extent reasonably Of course possible. questioning counsel is not foreclosed supplementary but personally entirely, judgment over its and control content is left to the scope and experienced judge discretion the trial to be exercised with the and history purpose A.2d 1 rule mind. at [Id. 93]. The court’s dealing exercise of discretion in with such re quests subject only showing reversal on a prejudice resulting from an abuse of that discretion. See Bieg State v. enwald, supra, 106 A .2d 130. The majority’s “shopping,” view with its connotation post- of selection and comparison purchase, is “permissible appropriate,” indeed “necessary,” metaphor for voir process, dire see ante at 32-33, abuses, ignores concerns, A.2d and shaped solutions that have Courts, the evolution of voir dire. counsel, along with market, are not consumers in the voir dire picking choosing jurors personal tastes; who meet their they only market, are inspectors examining testing venirepersons impartial to ensure the creation of an from those that remain.
The entire dire voir was more than sufficient to fulfill that goal. nothing There “perfunctory” death-qualifi about the process. Williams, cation See State v. 113 N.J. at Moreover, below, A.2d 1172. fully reasons stated more (1) I believe that trial court’s failure define the crime of (2) venirepersons murder or to ask possible about the effect Biegenwald’s prior that evidence of murder would convictions have on their decision-making process did render this voir constitutionally dire deficient.
II The Trial Failure Court’s to Define
Murder During Voir Dire
appeal
For the first time on
defendant raised the issue that
failure
define the crime of murder denied
fair
defendant a
*68
impartial jury.
The trial court did not define
murder
unnecessary.
jury
This
did
it was
prospective jurors because
Biegenwald had committed
determine whether
not have to
jury’s sole
murder;
already
had
been determined. This
penalty. Failure to
appropriate
the
function was to determine
during
dire
legal
tangential
on a
issue
voir
provide a
definition
unjust
v.
“clearly capable
producing an
result.” State
not
is
(citing
1:7-2 and
Hunt,
558 A .2d1259
R.
supra,
Defendant’s reliance on State misplaced for three reasons. 412 n. 550 A.2d is jury the same would be First, a case in which Williams life-impris- the guilt/non-guilt issue and called on to decide the course, “knowledge about onment/death-penalty issue. Of murder,” ibid., place have a capital would constitutes what stage. pre-guilt had a setting. jury This never pre-guilt such a Second, met the command. trial court fact Williams this the provided court helpful if the trial “It would be Ibid. The penalty death statute.” of the State’s an outline words, It said “a outline to them.” gave, in its basic trial court The court two-stage procedure.” usually “done in a that it was then continued: It’s a different is somewhat unusual. a murder but task case,
This case is your be asked to kind of task that perform. you’ll ft#***#*# is stage jury or not the who is to determine whether person first before the
The jury guilty the sits and decides murder, of the crime of of the crime is accused guilty guilty first of murder. That’s the or not the man is or woman is whether stage the case]. [in typical is a second legislature then there finished, has said after that’s Then the the second trial is to determine proceeding, a second trial and purpose jury the one in New is Jersey is that should be imposed, what penalty legislature has enacted And the that decides the penalty. options is is convicted of murder penalty if somebody the law are two: penalty, least 30 for at years. with no death or the life parole either imprisonment Those are options. jury first for the part it’s tried to the same tried, when a case is Ultimately on whether or heard all the evidence for the second So part. guilty, then that guilty is if it decides crime, person the person *69 jury same the with of sits and case continues the additional presentation proofs jury’s which the decision in the second bear whether the upon part case, man to be or is death life with no penalized by penalized by imprisonment parole for at least 30 years. jury Of course if in the first of the the case decides the is not part person guilty, that’s end the of it. The that of are the second the case are which proofs proffered part proofs aggravating mitigating bear what are called and factors. Common sense upon aggravating tells factors those are which would cause you to proofs you Mitigating kind lean of towards the death factors are those factors penalty. which would cause to lean towards life you with no for at imprisonment parole least Those that years. are the are in the proofs second of presented part the case. jury And after those are then the deliberates as to what the proofs presented, weighs aggravating should and it be and considers penalty those and carefully mitigating Judge factors under of law which the trial to the principles explains jurors. legislation, jury Now, while it that the same provides takes care of usually jury both of the case also allows in cases for a different to parts specific be jury for the second than impaneled that which heard the first part And part. happening that’s what’s here. exactly Biegenwald Richard has been convicted of no murder, about he’s question that, guilty jurors deciding of murder. The be this case will is question what legislature is the two which the appropriate penalty has options provided. jury going we’re to select then will have to decide whether from all of the aggravating mitigating that are proofs these [proffered] factors and weighing after them in law, accordance with the will have to decide whether death is the or rather whether other appropriate penalty appropriate is life with no penalty least imprisonment possibility parole years. jury going going This then we’re to not is to be concerned at all pick deciding guilty. guilty. man was, whether the should have or is is been, not He No about that. And don’t have concern over that. The question you going that’s to decide this case will decide punishment penalty. among jurors is to from Now, our select purpose who will able fulfill you, in a fair and We will responsibility impartial ascertain way. attempt from each whether think that do you can so of an you you way inquiry which one, will to a involve, answers written your preparation questionnaire that we’ll that written will distribute, ask about questionnaire questions your background, things of that and then nature, will, we after fill out the you come in will questionnaires, and we look the answers you’ll individually and we’ll ask certain which will questions you us, enable questions get background means the Court and the an lawyers involved, idea of your thinking, ought so that we can evaluate your whether to be to be you able juror fair and on this case. impartial Because trial counsel asked for no more-elaborate definition of appraise issues before the jury, we this issue under me “outline” of this detail convinces An plain-error standard. further did not contribute to to adorn it failure that the court’s Hunt, supra, v. 115 N.J. at unjust See an result. State jurors certainly compre- “some had basic 1259. These 558 A.2d legal duties would be.” their as hension about what Moore, A.2d 864. supra, 122 N.J. at would have at all clear that Williams itself Finally, it error. stated a failure be reversible Williams held such *70 provide a to such helpful” for the trial court “it would be imply did not state or that failure Ibid. definition. Williams or an inference that gave presumption to a even do so rise to confused or misinformed. jurors were case the facts of this am not that either I convinced during dire an holding defining murder voir made of Williams they I convinced that even if imperative. am also not absolute I am did, did not meet that standard. instructions this Court’s not however, to murder was convinced, the failure define that error. plain
Ill Dire How on Voir to Ask Jurors The Trial Court’s Refusal Aggravating Factor React to Evidence They Would 2C:11-3c(4)(a) N.J.S.A. jurors whether prospective to court refused ask
The trial they mitigation heard once consider evidence they could murdering had convicted Biegenwald that been evidence I that Anna Olesewicz. believe in addition to person another question. to ask that to refuse trial court had discretion allowed the should have even if the court I also believe Hence, must I resulting harmless. error was question, majority. disagree with the
A their categorically prejudge to must not be asked “Jurors v. in the case.” State willingness impose penalty death 88 257,
Ramseur, Here, supra, 106 at 524 1 A.2d 88. proffered question dangerously comes to doing exactly close Obviously that. defense would counsel have liked to know the undoubtedly question; answer he could more have intelligently peremptory made excusáis if he could have forced response question. a to that Those two them observations do selves not create a constitutional command. Mu’Min v. — -, 1904, Virginia, supra, 111 U.S. at 114 S.Ct. Moreover, prospect at 504. uniformly requiring L.Ed.2d question a such troubles me. Constitution does entitle defendant to have always questions posed during preju voir dire might directed to matters specifically conceivably * * * against obligation dice veniremen him. Thus, State’s to the defendant jury generally an can be satisfied less than impanel by an impartial inquiry prejudice into feared Ross, U.S. specific the defendant. [Ristaino (1976)]. S.Ct. L.Ed.2d 594, 1017, 589, 1020, 258, Supreme
As the United
prospective
States
Court has stated: “a
juror
expected
cannot
say
advance of trial whether he
in fact
penalty
would
vote
the extreme
the case before
Illinois,
510,
21,
him.” Witherspoon v.
522 n.
U.S.
88 S.Ct.
(1968).
1777 n.
20 L.Ed.2d
785 n. 21
Whether
is,
inquiry
remain,
this
allow
on voir dire
and should
within the
Hunt,
sound discretion
the trial
court. State v.
N.J.
majority
ques
I remind the
distinction between
“[t]he
which
jurors
they
tions
ask
how
would decide issues of a case if
such
presented
questions
and when
issues are
and
which mere
ly inquire
whether
can start
the case without bias or
prior
always crystal
State,
inclination is not
clear.” Waters v.
355, 363,
238,
(1981).
248
283
precisely
Ga.
S.E.2d
247
That is
why we accord a “sound measure of
judges
discretion” to trial
Hunt,
in the conduct of
supra,
voir dire.
v.
at
State
“
357,
may
only
Assume there’s a
* * * willing
or able
consider
sentence
satisfaction, would
be
you
to your
follow the law that allows it.
under
those circumstances
less than death
[Id.
at
that indicate its resolve to far clear of such areas on voir Perhaps importantly, dire. more appellate court deferred to the sound discretion the trial in all court three cases. See Francis, 667, Godfrey supra, 819; v. 251 atGa. at 308 S.E.2d State, 783, supra, 243; Castell v. 250 Ga. 301 S.E.2d at Waters, 363, State v. 248 atGa. 283 at 247. S.E.2d The main thrust behind springs such resolve from a desire to trying avoid the case during voir The jury dire. should decide the ultimate issues of fact based on the they evidence all hear trial, questions any not the one of them is on asked voir dire. parties “The are the opportunity furnished proper to make inquiry, they trying but are foreclosed from their cases at the Jahnke, 991, time of voir dire.” v. State P.2d 1003-1004 (Wyo.1984). question Even where the itself does not seek an juror, immutable commitment from the it can result in a similar dynamic. question improper “The was because it went to the * * * ultimate issue question required of fact. speculate on presented Furthermore, evidence be at trial. question designed probe juror’s present impression of facts developed which were to be later at trial.” Reynolds v. Commonwealth, 157, Va.App. (1986); 367 S.E.2d see Montez, 564, 584, also Or. P.2d (1990) (a question may improper only even if it “asks the juror to comment advance on he specific how would react to evidence”). cases, I along find these Georgia, those reasoned, soundly employing analysis comparable an to that by used court trial here.
Today’s majority
question
believes that the
considered
merely sought
trial court
“inquire
the impact
about
knowledge of other murder convictions
would have
ability
prospective
jurors to
credit
consider evidence in
mitigation.”
Ante at
91
incorpo
agree
adequate
I
that “an
voir dire should
case
proper
Moore,” ibid.,
II and
I do not
suggestions of
rate the
Williams
applicable
“suggestions” in
cases are
here.
the
those
believe
evaporates as a
often
constraint
accept/consider distinction
process into “the selec
because it transforms the
on voir dire
party’s point
view as
jury
of a
as
to the
tion
of
favorable
questions or
through
assumed
the medium
indoctrination
of
accomplish.”
Manley,
can
v.
and rules
law
State
facts
of
281,
added).
(emphasis
A. 2d 193
We have
supra,
Moreover, merely majority also that it can inter the believes analy change “rape” purpose for the of “another murder” 393, Williams, 113 2d supra, 550 A. under v. N.J. sis State 31, Although each 594 2d at 187. It cannot. 1172. Ante A. factor, prior-murder aggravating the statutory establishes factors. among statutory aggravating the unique factor is 521, 538, (1988). 542 2d 442 A. Biegenwald, 110 N.J. State v. is more aggravating these two factors The distinction between than semantic. 5,n. 2d Williams, supra, 113 at 412-13 550A.
In v. N.J. 1172, questions “hypothetical approved voir dire we might person’s affect a probe various factors examples to how examining the effect in the context of decision-making process” sought non-statutory factors. We or other of a victim’s status the only focused on defendant jury that a remain to ensure it. before stated, has
As this Court his crime offender and the individual characteristics the consideration of inflicting the penalty is “a part process constitutionally indispensable 96 S. Ct. 2978, 2991, Carolina, v. North U.S. 280, 304, 428 of death.” Woodson (1976); 438 U.S. S.Ct. 98 Ohio, also Lockett 605, v. see 586, 944, 49 961 L.Ed.2d (1978) (“an essential decision is 990 individualized 973, 57 L.Ed.2d 2954, 2965, cases”). sentencing, it must have before all possible In capital “regarding of the defendant characteristics individual relevant information including and the circumstances of crime nature and offense, and his 92
L.Ed.2d
penalty
convicted of
In
538-39,
By going beyond
case,
majority
rationale
this
fundamentally recasts this Court’s understanding
goal
of the
guise
voir dire under the
of applying established law.
Sympathy engendered by the victim’s status must not infect
“
balancing
the careful
‘regarding
evidence
the individual
”
characteristics of the defendant and his offense.’
State v.
Biegenwald, supra,
539,
at
110 N.J.
542
(quoting
A.2d 442
Ramos,
1006,
v.
supra,
Voir dire suggested questions potential victim-related biases. victim cases in which a murder II involved Moore and Williams spouse pregnant or was the raped or was child often, though exclusively, a rape/murder A defendant. deserved, excessive, sympathy for the causing gynocide infanticide, foeticide, Likewise, and uxoricide have the victim. the defen- duty from their to assess potential to divert questions, avenge dire the victim. Voir to their desire dant regarding venireper- inquiries repeated like this trial court’s *75 hearing regarding the evidence ability to decide after son’s woman, explore the effect of a properly young of a murder decision-making pro- juror’s prospective status on the victim’s cess. relating to 2C:11-
Although presence evidence N.J.S.A. the assault result 3c(4)(c)(murder aggravated torture or involved death), necessary c(4)(g) to cause ing pain in in addition to that against crimes, this rape, like committed (murder involved other victims), c(4)(h)(murder killing involved other victim and/or servant) that demand heightened concerns public may raise a status will not that the victim’s to establish further voir dire simply do not aggravating factors other prejudice jury, 1, Marshall, 123 586 v. N.J. In State raise those concerns. examine (1991), not insist that voir dire we did A. 2d 85 94
impact 2C:11-3c(4)(e)(murder of evidence on N.J.S.A. involved kill). paying suggested another to We have never in of our case, previous decisions in this see Biegenwald, supra, State v. 130, 13, Biegenwald, 2d and supra, 106 N.J. 524 A. State v. 110 521, 442, adequate N.J. 542 A. 2d voir must include dire 2C:11-3c(4)(a) questions impact on the of N.J.S.A. evidence. Biegenwald difference between Marshall and the cases like and those cases Moore and Williams II is that the latter aggravating two contained evidence of easily factors that could through transformed from be lenses which the should examine the defendant into mirrors in which it saw the victim. in When reflection such mirror is not directly related crime, it place may circumstances has no at trial and However, c(4)(a) be weeded out at voir dire. evidence of the implicate factor is non-reflective and could not a victim’s status way in the in which facts and factors in Moore and II could. Williams
I
disagreeing
have one further reason for
majority’s
with the
type
question
insistence that
required part
this
is a
of an
adequate
“question,”
voir dire. This
if
in all
mandated
future
dire, promises
capital sentencing
voir
to unravel much of the
jurisprudence
painstakingly developed.
we have
We have had
Jersey Capital
to recast the New
Punishment Act numerous
constitutionally-satisfactory
times
insure its
tone. See State
208,
Marshall, supra,
(O’Hern, J.,
v.
123
N.J.
N.J.
State v.
113 N.J.
The
ais
difficult one. Could an
venireperson
honest
“yes”
answer
if
when asked
evidence
prior
of a
likely
murder made it more
that he or she would vote
very
for death or
it
that would be
hard
mitigating
to find that
outweighed
aggravating
Yet,
evidence
factor?
it would be
say fairly
difficult to
juror
nearly impar
this
was not “as
”
humanity
admit,’
tial ‘as the lot of
will
v. Singletary,
supra,
(quoting
N.J. at
402 A .2d203
Jackson,
State v.
1),
Certainly, Legislature believed imposition for the basis ought provide the factual conviction statutory finding a it made such a penalty: the death death sentence. militating in favor factor aggravating *78 sway jurors. The death- meant to factors are Aggravating aggravating circumstances specific out spells penalty statute considering rely when the death may legitimately that one When, acquain- any previous given without in a case. penalty Act, a Capital Punishment contents of the with the actual tance prior of a murder juror that evidence believes prospective influence, influence, strongly his or perhaps would conviction merely penalty, that citizen impose the death her decision into society-wide a consensus enacted support adds unstated naturally may agree and unwit- Legislature. One by our law courts that society, Legislature, and our tingly our with most support provides legitimate basis to a prior murder conviction a a given in a case. Such penalty of the death consideration sentiment, by during voir dire the court discovered shared trial, deprive a during the later does juror realized impartial jury. anof defendant wisdom. court’s field-tested to the trial
I would defer B merely an effective in itself but not an end dire is “Voir 439, 119 N.J. Long, impartial jury.” State v. to select an means thor (1990). of the overall 479, I am convinced 2d 435 575 A. that the trial I convinced am also oughness of this voir dire. any fear that jury’s conduct vitiate and the instructions court’s mitiga evidence on refused to consider biased or jury this was impartial, or at Therefore, I that this was believe tion. ” humanity will admit.’ nearly impartial the lot of ‘as least “as (citation 62, 203 402 A.2d supra, 80 N.J. at Singletary, v. State 98
omitted). Any resulting error proffered from failure to ask the questions was harmless.
Like other cases
technical
demerits directed at a voir
questioning
dire where further
could
helpful,
have been
see
—
at-,
v. Virginia, supra,
1904,
Mu’Min
U.S.
at
S.Ct.
504,
114 L.Ed.2d at
the record here nonetheless assures me that
scope
quality
“the overall
sufficiently
the voir dire was
thorough
probing
to assure the
impartial
selection
an
jury.”
Biegenwald, supra,
29,
State v.
A.2d
130;
Dixon,
see also
v.
supra,
State
atN.J.
593 A.2d
(“the questioning
at 278
sufficiently
produce
calculated to
Hunt,
fair
jury”);
and unbiased
v.
State
115 N.J.
(“although
Of may preferable course it have been for the trial court to have allowed questioning requested the voir dire by defense respect counsel jurors’ “prior the attitudes the about 105-106, murder” post (Stein, factor. See 594 A. 2d 229. J., dissenting). We repeatedly have emphasized Manley was never intended to judicial freeze voir dire straitjack into “appropriate et and that it is for the court or counsel for open-ended questions have asked additional directed to specific feelings jurors might that the capital have had about punishment Moore, in that case.” supra, State v. 122 at N.J. 449-50, added) 2d (emphasis (citing A. 864 Long, 435; supra, II, supra, 575 A.2d Williams 113N.J. 1172; Zola, 550 A. 2d State v. 112 N.J. 1022). 2dA. discretionary
However, that the determina it not follow does far from the mark as constitute judge trial fell so by tion this rights. infringement trial or an on fair process violation a due (“the (Stein, J., dissenting) A. 2d at post at See question the holding significance undue to the attaches Court’s in ask”). I that conclusion am comforted trial court refused jurors when by on those few occasions in this case the fact that (because question they had disclosed their were asked murders) jurors no knowledge prior evidenced unwill evidence, mitigating light even ingness to consider the juror Russo was example, prospective For prior murders. asked: willing to still be words, with another murder would your you But even Q outweigh mitigating might factors still to the that the
listen possibility open that? even listen, A I’d Oh, yes, yes. it’s I from what have think, murder, you So even with another Q possible, for at least 30 with no parole could vote life said, imprisonment still you years? A Yes. Depending hear? what Q upon you A Yes. asked: juror McCormack was prospective
And killings, anything about that you about what have read plural, Is there Q you judgment might this case essentially in this case where believe affect your going killing. guilty to decide of a Now we're the fact that he has been found background going to have an information is Do think all that penalty. you effect you? A No. just room? hear in Court be able to listen what you You mean Q you’ll A Yes. forget all you’ll read in newspaper And if it’s different from what you Q in the what read newspaper? about you A Yes. dire, qualified who were all of the
Throughout the voir prof- mitigating evidence agreed they would consider statutory aggravating evaluating fered the defendant closed-minded. This was not factors. *80 majority states that
100 questioning refusal to of other murder [t]he permit impact convictions during voir dire constitutes serious Such error, error. is not irremed however, if the voir dire was otherwise iable. Defendant’s sentence be may upheld so thorough probing jurors as to ensure that the had the empaneled “capacity mitigation,” v. State to credit the evidence A.2d Bey, [548 (Bey (1988) II), and the 887] their duties accordance with ability perform v. oaths, see Adams
the court’s instructions and their Texas, U.S. at supra, at [100 S.Ct. L.Ed.2d at [Ante A.2d 589. 2526] 34-35, 189.] In strengths addition to the I in my obvious found review the dire, overall voir and to the comfort I find in responses McCormack, like Russo and other evidence demonstrates II Bey that and Adams demands were met and error remedied. venirepersons,
Defendant concedes that some
unlike Russo
McCormack,
understanding
applicability
whose
penalty
the death
they
was flawed and who indicated
would not
properly
able
follow the law were
for
excused
cause. Cf.
Dixon,
(“Any
Of
defense counsel
most were asked
by the court. There
approximately
were
six or seven times
when the
questions requested
court refused
ask
defen-
dant.
types
requests.
Those refusals followed
related
two
First,
venireperson
when a
indicated
he or
she would vote
*81
circumstances,” defendant
penalty under “certain
for the death
those circumstances were.
inquiry
an
into what
requested
request,
occasionally sought in
to
counsel
Closely allied
that
prior
had two
knowledge
that defendant
quiry into whether
juror’s
substantially impair the
abili
convictions would
murder
impartially to
defendant’s sentence. Unlike Williams
ty
decide
“woefully inadequate” and
II,
questioning
was
which
repeated
objections” and in which defense
“marked
defense
challenges,
peremptory
all his
113 N.J.
had exhausted
counsel
1172,
404-05,
adequate,
questioning
2d
here the
was
550 A.
counsel, and the defense
objections by
few
defense
there were
42,
challenges. Ante at
only
peremptory
of its
used
thirteen
agrees
majority
that the voir dire
2d at 194. The
594 A.
adequate.
publicity was
respect
pretrial
sufficiently probing to weed
I also find that
voir dire was
ability to
defen
any prospective jurors whose
determine
out
Hunt,
impaired.
v.
proper
See State
dant’s
sentence
1259;
351,
Biegenwald,
v.
supra,
Under oath are to I your law as have you [the and accept explained it] deciding then use those the case. principles [********] legal If, deliberations, should become confused as to your you the principles writing that I have and defined a frame explained you, simply question * * * reading discussing after and it and it with if counsel, we’ll call necessary, jury go again. back into the box and I’ll it you over We don’t want you a decide case in state of as to what law is. uncertainty Any problem with that, let me know. * * * It be well that as sit may you now, there each has a tentative you going aggravating conclusion in mind as to how are on the your you vote and
mitigating and how intend factors, to vote on the ultimate you that penalty you will choose as this case. appropriate ******** wrong cling
What if would were to that tentative conclusion you blindly arguments jurors for considerations raised fellow despite persuasive by your during the deliberative process. jurors The were also told that deliberating mitigating on or whether one more [i]n factors has been [Biegen- established, will focus Dr. you Eshkenazi primarily testimony
wald’s psychiatrist]. instructions, Armed with those jury this did not a behave like that group had foreclosed in mitiga consideration of evidence tion. It asked for read-backs of Dr. testimony, Eshkenazi’s testimony going directly to the mitigating issue of factors. It However, did aggravating present. find two factors a number jurors factors, that mitigating concluded two N.J.S.A. 2C:11-3c(5)(d) (impairment by defect) mental disease or and (the c(5)(h) factor), Only “catchall” also existed. after deliber ating jury in this manner did unanimously beyond this find and aggravating outweighed factors a reasonable that the doubt mitigating ones. they agreed all that who chosen believed were instances not in penalty appropriate
death
in some
others,
weigh
aggravating
they
could consider and
at
determine the sen
mitigating
presented
trial and
factors
death,
tence,
impose
they
they
could
either life
psychiatric testimony,
they
and that
could listen to and consider
on the law.
could follow the trial court’s instruction
See State
sum,
247-248,
Dixon,
IY
Other Issues
Jersey Capital Punish
I,
majority,
like the
believe
New
Ramseur,
106
Act is constitutional. See State v.
ment
majority
185-90,
I
that the
A.2d 188.
also believe
524
N.J.
Gerald, 113
v.
correctly rejects defendant’s claims under State
cases,
(1988).
40, 69,
in numerous other
2d 792
As
549 A.
N.J.
phase provide
guilt/non-guilt
record at the
this record and the
that
jury
conclude
defendant
rational basis on which
could
no
bodily
cause
with an intent to
serious
young
shot this
woman
See,
120
McDougald,
v.
injury
e.g.,
rather than death.
State
61,
Rose,
(1990);
120
576
State v.
N.J.
A.2d
N.J.
Pitts,
(1990);
A.2d
116 N.J.
A.2d
1259.
Hunt,
558 A.2d
(1989);
supra, 115
State v.
agree
majority
I also
with
that there was no abuse of
failing
failing
discretion in
to relieve
defense counsel or
change
sponte.
only
I
majority
venue sua
wish that the
would
similarly
have
deferred to the trial court’s exercise of discretion
during jury-selection.
(noting
Ante at
V
Conclusion jury initially capital Both the decides a case and the appellate inevitably court that reviews that decision understand gravity impose of a penalty. Appro- decision to the death priately properly selected and educated on the law and the facts case, duty neither views anything solemnity, its but impose uphold because the decision to or to society’s ultimate lightly. sanction is not undertaken The record demonstrates jury properly for, to, that this selected and educated its case, being task. That ground and no other for reversal being present, my duty is clear. I would affirm the sentence.
O’HERN, J., opinion. concurs this STEIN, J., dissenting. presented
That the Court is
with the critical issue that arose
regrettable
from the
During
voir dire is
indeed.
that voir
requested
dire defense counsel
jurors
the trial court to ask
qualified
knowledge
otherwise
to sit whether
of defendant’s
prior
impair
murder convictions would
substantially
ability
of those
weigh.mitigating
consider and
factors. The
*84
opinion
State directed the trial court’s attention to our
(1988)(Williams
Williams, 113
reversible
by
inquire
to
was not overcome
the balance
voir
failure
notwithstanding the trial
acknowledges that
dire. The Court
prior mur-
question jurors
to
about defendant’s
court’s failure
convictions,
sustainable if the voir dire was
der
the sentence is
jury possessed
sufficiently probing to ensure that the
otherwise
mitigation,”
ante at
“capacity to credit the evidence
123, 154,
(quoting
Bey, 112 N.J.
that the voir dire was flawed” to overstate substantially significance of the trial court’s omission. explain my
To afford a disagreement context within which except majority, II, with the I note supra, Williams 393, 1172, majority 113 550 opinion N.J. A .2d no relies on other or support federal state court decision to its holding that inquire prior the failure to about defendant’s murder convic tions can if constitute reversible error that omission is not redeemed the balance of the any voir dire. Nor does it cite authority for proposition inquire that the failure .to about jurors’ any comparable attitudes aggravating toward factor My could constitute reversible error. research has uncovered authority. no such I majority’s therefore conclude that the holding, applying right impartial jury guaran to a fair and constitutions, teed under both the federal and the state U.S. ¶ XIV; I, 10, Const. amends. VI and N.J. Const. art. is one of impression. first holding
The Court’s
in
unique
is also
when viewed the context
developed
capital-murder juror
jurisprudence on
disquali
fication,
invariably
disqualification
which has
focused on the
of
jurors scrupled against
death-penalty,
so-called Wither
spoon
Witt,
412,
excludables.
v.
Wainwright
See
469
105
U.S.
844,
(1985);
Texas,
38,
S.Ct.
L.Ed.2d at 589. State (1987), apply 2d held that trial courts should A. we jury, death-qualifying Adams-Witt standard *86 887, 152, acknowledged 112 Bey, supra, v. at 548 A.2d we invariably favor applied jurors to who that that standard oppose death as as to those who it. penalty well Nevertheless, precedent in state is a distinct lack of there relating disqualification jurors who decisions to favor federal capital convicted of murder. punishment for defendant Presumably, preserved appeal is not often for because issue juror challenged death-penalty is either cause automatic presented appeal, on courts peremptorily. or When the issue is generally acknowledge that under the standard Adams-Witt impose automatical juror vote to the death sentence who would of murder should be excused for ly on a defendant convicted 84-85, Oklahoma, 81, See, 108 e.g., v. 487 cause. Ross U.S. 80, (1988); 2273, 2276-77, accord 101 L.Ed.2d 87-88 S.Ct. 940, (11th Cir.1983); Zant, Hovey 2d v. v. 696 F. 956 Hance 1301, Court, 1, 48, n. 616 1310 Superior 28 20 n. P.2d Cal.3d (1980). 48, 128, n. Cal.Rptr. 137 48 168 applies it However, when the Court writes a clean slate jurors would not require to who standard Adams-Witt automatically impose the sentence on all convicted to death vote they necessarily interrogated on whether must be murderers prior convictions. if the defendant had murder would so vote verify juror to his apparently assumes that a unable The Court prior- weigh mitigating against factors willingness or her necessarily excludable aggravating factor murder-conviction expressed in assumption a caution ignores That for cause. 412, 844, 83 Witt, supra, 105 v. 469 U.S. S.Ct. Wainwright context: although stated a different L.Ed.2d 108 juror bias cannot be reduced [Determinations question-and-answer ses sions which obtain in the manner of a What results catechism. common sense should have realized has veniremen experience cannot be proved: many simply enough asked reach the where their bias has been made questions point these veniremen not know how will clear”; react when "unmistakably may they imposing faced with the death or unable to sentence, be may articulate, may feelings. U.S. 105 S.Ct. at wish to hide their true [469 424-25, 852-53,
L.Ed.2d at 852.]
holding
ignores
The Court’s
also
the most recent United
Supreme
dire,
States
Court decision on
voir
Mu’Min v.
— U.S.-,
Virginia,
(1991),
111 S.Ct.
impartiality credibility by demeanor (quoting evidence and of [Ibid, Rosales-Lopez responses questions.” United States, U.S. S.Ct. L.Ed.2d 182, 188, 1629, 1634, *87 (1981)).] I analysis cite Mu’Min not for the force of its but rather to emphasize gap the majority’s holding between the and the Supreme Court’s insistence that the Constitution does not ordi- narily require jury that voir dire criminal cases include specific interrogation. lines of view, my holding
In significance the Court’s attaches undue question to the the trial court to I that refused ask. reach that conclusion jurors not because of doubt that some would strongly emotionally react and to information that defendant convictions, prior had two murder but such a because reaction is almost virtually Legislature’s inevitable and inherent the designation prior of a murder as an aggravating conviction prior factor. Jurors of a informed defendant’s murder convic- naturally favoring in the of be influenced direction tions would juror death Whether a would be imposition of the sentence. override, only preclude, any so as not to but also to moved far aspect weight is an of the mitigating factors consideration juror prior to the murder convictions. To attached extent, correctly inquiry trial court observed that about the murder intrude to some prior defendant’s convictions would weighing during to be conducted the degree process on the sentencing phase. holding significance overrates the of a majority’s also prior question about murder convictions.
juror’s response to from extensive review of voir dire We have learned seriously jurors capital that most have reflected about cases open-ended capital punishment. on Even precise their views generate during dire questions penalty the death voir about impedi- confusing contradictory responses. An obvious and constraint, is the built-in time ment to an informative voir dire immediately pro- required respond almost jurors being philosophical ramifications. questions religious and found questions is answer about the juror is who able to Rare the coherently, thoughtfully, responsively. The penalty death prior two murder question knowledge of defendant’s whether fairly impair ability weigh evi- juror’s convictions would aggravating is against that factor mitigating factors dence reliability ju- extraordinarily difficult and subtle. The way phrased, depend question the the response may ror’s demeanor, juror the ade- and whether judge’s tone and Perhaps inquiry. complexity quately understands response question is that asking the best reason challenges. peremptory may in the exercise assist counsel however, too much view, majority has attached my In question its answer significance prospect for cause. identify jurors are excludable reliably will who to the trial significance undue Another reason not to attach prior murder defendant’s to ask whether failure court’s ability weigh mitigating *88 impede their convictions would question factors is that the is too If response abstract. informative, jurors to be seemingly would need to be informed about the evidence of mitigating against factors prior-murder-conviction aggravating which the expect- factor is weighed. my informed, ed to be In they view should be so but request defendant’s apparently to the trial court did not con- template inquiry that the would be made in the context of the anticipated mitigation. Thus, evidence of responses proffered question significant would have elicited are less the context of the overall they voir dire because would not thoughtful have reflected the jurors view of informed of evi- dence of both aggravating mitigating factors. opinion
The Court’s is troublesome for another reason. The Capital eight Punishment Act sets forth aggravating factors, 2C:11-3c(4)(a) (h), N.J.S.A. all of which capacity, have the individually either or in combination with aggravating other factors, to juror influence a to vote for penalty the death to the extent of precluding juror’s consideration of mitigating public ((c)(4)(h)), evidence. Murder of a servant murder commit ((c)(4)(d)), money ted for involving or murder depravity of mind ((c)(4)(c)), examples are inflammatory of the more aggravating In factors. this case the State offered depravity evidence of consisting testimony that defendant murdered the victim for no reason other than During his desire to kill. day the last voir dire vaguely suggested defense counsel the trial court question jurors should whether depravity evidence of the aggravating impair factor would ability their to consider and weigh evidence, mitigating which the trial summarily court rejected. But the Court does not address ruling whether that error, nor does necessary guidance it offer to trial courts aggravating on the factors about which must be interro gated. implications ruling respect Court’s other aggravating factors is an added misgivings basis for majority’s about the holding.
I do not share majority’s view that this voir dire was constitutionally typical flawed. As is voir dire other
Ill downs, cases, including ups this had its and capital voir dire patient, open-ended inquiry and occasions on both instances questions response. hinted at a trial court’s desired which the court, nonetheless, consistently prospective The trial excused slightest suggestion predis of a indicated even the jurors who death, including defendant all who position to sentence prejudice expressed possibility of because the victim was whole, my in view young On the this voir dire woman. thoughtful trial reflected a and conscientious effort objection impartial jury, fair with little court to select a and having by defense counsel. voir dire this been asserted compared inadequate voir dire simply cannot be with the case II, supra, the basis for our reversal Williams was .2d 550 A 1172. science, art not a I believe the voir dire is an Because script attempting part to freeze-frame Court is unwise capital acceptable dire in cases. constitutionally for a voir inherently are Bright-line rules for the conduct of voir dire need for more rules and suspect they generate the because dire, reviewing capital-case rules. In voir we exceptions to by the funda- guided by scripts or formulas but should be empaneled fair and question mental whether in this satisfied case. impartial, standard I am convinced was defendant’s sentence. I would affirm WILENTZ, Justice For Vacation and Remandment —Chief CLIFFORD, HANDLER and POLLOCK—4. and Justices O’HERN, GARIBALDI For Affirmance—Justices STEIN—3.