*1
Nancy Deputy A. (Deborah Poritz, Attorney T. respondent cross-appellant Jersey, attorney). of New General was delivered opinion of the Court
STEIN, J. defendant, County convicted January a Warren Brown, purposeful knowing murder counts of Bobby Lee two Bell. It also and her brother John in the deaths of Alice Skov robbery, weapon-possession, felony-murder, Brown on convicted had found that Brown conspiracy charges. Because 2C:ll-3e, conduct,” N.J.SA. “by his own the homicides committed jury’s guilt in the verdict hearing followed the penalty-phase phase, unani- penalty the same phase of the trial. At the murder of Alice Skov mously respect found *10 aggravating outweighed mitigating beyond factors factors reasonable doubt and that defendant should be sentenced to death. Bell, Concerning the murder of John could not unani- mously agree punishment. on the The trial court sentenced imposed defendant to death for the murder of Alice and Skov imprisonment mandatory thirty- consecutive sentence of life awith year term for the All murder of John Bell. other counts were merged into those murder convictions. July pled guilty co-defendant Coleen Alexander had
felony-murder, robbery, conspiracy charges and in for return charges agreement testify dismissal of murder and for her for the State at defendant’s trial. The court sentenced Coleen Alex- thirty-year parole disqualifer ander to a life term with a on those charges. appealed
Defendant his convictions and sentence. We now affirm defendant’s convictions but vacate his death sentence be- in concerning cause of errors the trial court’s instructions jury’s duty unanimously to find that defendant had committed the disposition homicides his own conduct. Our does not affect thirty-year parole ineligibility defendant’s life sentence with the murder of John Bell. If the State elects not to seek the death remand, sentence on defendant’s conviction for the murder of Alice Skov will stand impose undisturbed and the trial court shall sentence in accordance with N.J.S.A. 2C:ll-3b. If the State again penalty offense, elects to seek the death for that defendant’s murder conviction will be vacated and defendant will be retried on charges. the murder
I primarily base our We narrative of the facts on the State’s presented version as jury’s guilt- the trial and reflected in the phase verdict. in testimony We include references to conflicts only they to the extent that are relevant to our resolution of the issues. Leading Up to the Murders
A. Events Brown, co-defendant, Defendant, Alex- Bobby met Coleen Lee time, ander, July At that picnic Pennsylvania on 1990. at a years small married for several and had two Alexander had been Alexander, husband, her September children. Since Pennsylvania, Bangor, living apartment been in an children had marriage and her husband lived although during their Alexander Stephen adoptive parents, primarily Alexander’s Violet with Krouch, Argyl, Pennsylvania. Alex- at the Krouch’s home Pen *11 and at times abusive her husband had a turbulent ander and relationship. romantically De- became involved.
Defendant and Alexander day picnic apartment into Alexander’s on the fendant moved days later. Neither husband moved out three and Alexander’s during appeared employed to the first nor Alexander be defendant couple experienced continu- relationship. The few months of their “[bjounced by Alexander as problems, financial described ous over[, b]ills, their payments.” As a result of [and] all loan checks straits, charges and a theft had nine bad-check financial Alexander Pennsylvania by the time defen- outstanding against her in charge $5,000 charge The theft concerned dant’s trial commenced. Septem- grandmother on from the house of Alexander’s was stolen Alexander, defendant, 4, 1990. The theft occurred when ber Alexander grandmother’s house. sister visited the defendant’s only when she saw about the theft testified that she learned trial, money the visit. At defendant’s counting the after defendant incident, testifying that version of the refuted Alexander’s sister house, grandmother’s gone Alexander had into only she and grandmother’s money from her Alexander had taken the and that unwittingly Alexan- distracted defendant’s sister bedroom while living in the room. Defen- grandmother conversation der’s with from the theft to proceeds and Alexander used dant $1800 red Pontiac Fiero for defendant. purchase a used 24, 1990, Alex- and Alexander visited September On Skov, Township. aunt, in Oxford Alice at her home great ander’s old, Skov, eighty-two years had suffered a stroke the winter of in. up and had set a makeshift bedroom on the first floor purportedly urged the house. The visit was Alexan- front of just injured parents had herself in a fall. Also der’s because Skov Bell, sixty-four-year-old at the house was John Skov’s brother stroke, great Bell had been Alexander’s uncle.. Since Skov’s sleeping September her. The on at Skov’s house to look after visit hour, during 24 lasted less than which defendant and Alexander an religious played chatted and defendant music on an with Skov organ in house. again
Defendant and Alexander visited the Skov residence one Hackettstown, later, day ostensibly to Bell to ask John directions job. Jersey, apply intended to How- New where defendant ever, arrived, they pick-up when Bell’s truck was not door, They driveway. knocked on the and Alice let them in Skov gone and told them that Bell had for a haircut. Alexander explained why they had come and asked to use the bathroom. Skov, speak While defendant continued to Alexander used the bathroom, returning, change purse top and while noticed a on of a Recalling television set. that defendant had stated that the car gas, was low on Alexander stole ten to fifteen dollars from the purse. According gave to a version of the visit that defendant *12 murder, police actually after his arrest for Alexander took around $350. telephone
Alexander testified that defendant had overheard a conversation between Alexander and her cousin after the second home, during visit to the Skov which Alexander had discussed a large safe in Skov’s that contained a amount of cash. house subsequently Alexander further testified that she had overheard having defendant a conversation with three other friends in the Bangor apartment regarding “getting kitchen of Alexander’s mon- ey Jersey.” in New Alexander also related that defendant made acquire gun. Specifically, efforts at that time to a she stated that stopped gas Bangor in she and defendant had at a station East inside, operated gun shop. as a and also bar Once defendant get to a pointing guns display on and asked Alexander began out particular price on a model. regarding defendant’s interest at
Two other witnesses testified gun. “money Jersey” obtaining in in in a One time New and Lohman, witness, implicated falsely later Robert whom defendant murders, with he had had a conversation in the testified that Bangor during apartment which the kitchen of the defendant job Jersey with gun “he a do a stated that needed to defendant interested, money.” replied that he was not easy When Lohman Lambert, witness, Jeffrey testi- Another the conversation ended. talking about he overheard defendant and Alexander fied that had $40,000, Jersey, containing approximately while a safe New Lambert, Lohman, process of man in the and another were defendant, Alexander, move and Alexander’s children helping Stephen Krouch. parents, Violet and the home Alexander’s the Krouches on moved in with Defendant and Alexander murders, day On before the 1990. October October dealership in Wind Pontiac automobile defendant traveled dealership testified Pennsylvania. salesperson A from the Gap, and in a new car on the lot had had shown interest that defendant had that his a test Defendant stated the ear for drive. taken salesperson in- Fiero available as trade-in. Pontiac was new vehicle would be the cost formed defendant $17,800. salesperson filled out a and the Defendant approximately approv- salesperson forwarded for application, which then loan late in dealership with Alexander returned to the al. Defendant rejected had defendant’s learned that the lender the afternoon and with the discussing other loan alternatives application. After loan he would make alterna- stated that either salesperson, defendant day pay and simply come the next arrangements bаck tive loan the car in cash. evidence, and Alexander According to the State’s leaving dealership. home after to the Krouches’ returned with Alexander’s to the store Stephen Krouch went Violet laun- to do down to the basement daughter, Alexander went *13 Alexander, dry. According to defendant came down to the base- ment, pointed her, “long gun” a up.” and said “stick ’em recognized gun Alexander her as father’s rifle and told defen- put dant to kept the rifle back. The rifle was in the closet in Stephen and Stephen Violet Krouch’s room. Krouch testified that he had told defendant about the rifle after Krouch had been informed that beating defendant was Alexander. evening,
Later that defendant and Alexander neigh- went to the Bangor borhood in in they previously which had lived to visit a neighbor. former Jeffrey Defendant encountered in Lambert street Bittner, and stated that he wanted to visit David a mutual neighborhood. friend in reaching apartment, On Bittner’s defendant told Bittner that he wanted privately, to talk to him whereupon defendant and Bittner went into Bittner’s bedroom. Defendant asked Bittner where get gun defendant could because he wanted burglary country” to commit a “in Jersey in New involving money. According “a lot” of testimony, to his Bittner told defendant crazy” “he was and believed that he had defendant “talked out of it.”
Defendant bar, and Alexander next Sportsman’s went to the pub they frequented Inside, Bangor. they encountered a Alexander, Meixsell, friend of Tina boyfriend, and her David Runyon. According Runyon, they defendant asked him if could step outside and talk. inquired Defendant then Runyon whether get could gun, defendant a and said that he willing would be $2,000 pay Runyon for it. Defendant stated that he wanted the gun night for use following day, pay and would be able to * * * Runyon following day pulled “after he off the scam.” “scam,” When asked to describe the so-called Runyon testified that defendant had said large “there was a amount of cash in a safe open” that was left at the home of a relative of Coleen Alexander Jersey “down New somewhere.” Defendant stated gun case, that he protection just needed the “for in case of an emergency, in something happened.” offer, ease Enticed Runyon phone took defendant’s number and called defendant at *14 asking if was approximately morning, 7:30 next the offer still the Runyon him back. good. Defendant that he would call told assistance, Runyon if needed a ride or other and asked defendant replied that he did not. Surrounding B. Events the Murders The getting murders occurred on October 10. After Alexan- school, up off to Rrouch told defendant der’s children and Violet phone Both and testified that he had a call. Rrouch Alexander (presum- had the from that defendant stated that call was “Dave” ably Runyon), to defendant and David and that Dave wanted meet breakfast, that because he Alexander for but defendant declined Alexander, who money. Defendant then told had did not have bed, get gone up ready. to Rrouch testified get back to Violet a.m., Bethlehem, couple purportedly go left to to that the at 10:15 drug prospec- get a Pennsylvania, so that defendant could test Sanitation, carting company. employment tive Central Grand changed concerning times testimony Alexander’s three at trial trip of the purpose had of the criminal when she become aware first, father’s rifle. At she and that defendant had taken her going thought couple was that she too had that testified test, purpose drug learned of the real Bethlehem for had only and defendant were in defendant’s car and the rifle after she However, Alexan- way to the Skov home Oxford. when on the testimony following day, she stated her direct der resumed couple “going was to Oxford for had learned that she early-morning phone call money” took the from after defendant However, she had Runyon. Alexander maintained that David only couple presence in the car after the about the rifle’s learned Oxford, way to when she discovered it behind the was on the wrapped gray car in a and black seat of driver’s defendant’s Finally, belonged after striped shirt to defendant. dress her testimony, the State recalled Alexander had finished her prosecutor she because had informed stand she that defendant additional details. She then testified remembered told purpose trip her of the true of the mоrning on the crime, get after which he had directed her to her father’s rifle closet, from her bedroom wrapped where Alexander found it in the striped shirt. they She handed defendant the rifle before left the house. home, reaching
On couple the Skov saw John Bell’s truck in driveway. Alexander testified implored that she had defen- *15 “just home,” dant go to turn around and but he had refused. They pulled in behind Bell’s truck and knocked at the back door. breakfast, John Bell in making was the kitchen and told Alexander and defendant They proceeded to come in. day into the room to visit going with Alice Skov. After back to the kitchen to make coffee, they instant resumed their conversation with in Skov the day Approximately later, room. ten minutes defendant stated that he felt step sick and that he needed to outside. Alexander through entrance, followed defendant out of the house the kitchen passing sitting John Bell who dining was a chair in the room reading outside, a book. Once couple the sat defendant’s car cigarettes. and smoked again pleaded Alexander for defendant to responded, me,” leave. He ‘You apparently ruined it for referring having to her him followed outside. Defendant instructed Alexan- der up get to “shut and back in there you lay before I leave ' alongside the road.” pair house, then went back the through into the kitchen and past Bell, reading who was still dining the They again room. day entered the room and talked to Alice Skov. Alexander went room, living adjacent room, into the day to the began playing and organ. the joined her, again When defendant they she asked that “no,” replied, leave. Defendant pair and the went back into the day Again, room to talk with Skov. defendant stated that he did not feel get well and needed to some air. Alexander shook her him, head at but defendant gesture returned that nasty with “a proceeded look” and outside.
According Alexander, to after ten passed, minutes had she gunshot. stated, “oh, heard a my goodness, Alice Skov Uncle entered the squirrel.” killed a Defendant then John must have stated, right.” left room for a day and dead all He room “it’s returned, telling she Alexander that could few minutes and then cigarette while he few minutes and smoke a go outside Apparently, was to talk Alice Skov. that direction continued with give for cash opportunity to an to search intended Alexander house, which she knew well. Skov room, dining into when she Alexander testified that walked pool in a on kitchen floor. lying Bell blood she saw John had and unsure of what Alexander stated that she been scared do, steps leading upstairs portion to the and had sat on the day Alexander then returned house for several minutes. located. Defendant left room where Skov and defendant were rocking in her on the floor. Skov was room and Alexander sat rifle, Alexander, According to defendant returned with chair. squirrel,” stated, gun used kill the “this is the John Uncle Skov, Defendant put him to it down. pointed the rifle at who told fracture, head, top causing a grazed of Skov’s fired a shot that leave, up to lodged got in a wall behind Skov. Alexander and then his pulled her her to his side with came over to but defendant *16 rifle a then fired the her shoulder. Defendant left hand around position that he had approximately the same time from second n top rear bullet entered the fired the first shot. The second mouth, knocking through head her portion of Skov’s and exited lap. a landed in Skov’s out tooth that away defendant then broke from Alexander testified that she door, defendant through the kitchen and out the with and went stepped she over the blood. instructing her to sure that make few had come out a Initially, testified that defendant Alexander wrapped striped in the shirt. carrying the rifle minutes later stand, However, witness she later returned to the when Alexander out her rifle as she headed that had handed testified defendant to car. taken the rifle out and she had the door that car, he said defendant started the Alexander recalled that after had behind the “oh, explained that he left my gosh,” and then which he John scissors with had stabbed Bell. Defendant stated ].” that Bell had been “hard to Alexander that she kill[ testified defendant, “Why?” apparently referring said to to the reason for episode, replied the whole and that had that he defendant had identify killed Alice because she have been Skov would able to who had killed Bell. He warned that if she John then Alexander persisted asking questions, “alongside he would leave her go family.” road and after kids and [her] [her] During Argyl, Pennsylvania, ride back to Pen defendant Alexander, keys handed truck to Bell’s and wallet threw them who approx- out the car into a area. window wooded Defendant netted imately from the crime. $300
C. The the Murders Aftermath and
Defendant Alexander returned Krouches’ home employee around noon. Violet Krouch defendant an informed that dealership of the ear had called and wanted defendant to call back when going he returned home. Defendant stated that he was out stop way. McDonald’s and would on dealership his Violet Krouch testified that had later returned with a bag spent from installing food McDonald’s afternoon a radio in gone his car. Defendant informed Krouch that had he Bangor a Radio having Shack because he was with trouble installation. produced
The State witnesses who that corroborated account. manager Brown, An assistant from McDonald’s testified who just restaurant, working had started for the had come there that afternoon had depressed, departure usually seemed his from upbeat personality. family tragedy” He mumbled that “a had addition, produced employee occurred. an from Radio purchased Shack store who testified defendant had car stereo afternoon and had $170 returned later because he *17 having difficulty was Finally, salesper- with the installation. son dealership from the car that he testified had called Krouch message for to morning had a defendant residence that and left dealership. call back went out with Rob- following night, October defendant
The Lohman, acquaintance. According to ert Lohman and another uneasy the three were outdoors appeared to be while defendant beer, surrounding woods drinking point peering into the at one passport a and then Lohman flashlight. Defendant showed with go if to look for “a new him he wanted to to Canada asked atmosphere.” declined the offer. Lohman on and John Bell the bodies of Alice Skov
Police discovered Alexander, defendant, Coleen 11. first contact with October Their following evening, on October and the Rrouches occurred went to County Prosecutor’s Office when officers from the Warren the murders. The officers Krouch and informed them of home and briefly questioned group were told defendant approximately two they visited home Alexander that had the Skov would if and Alexander police before. The asked weeks police prints their could eliminate fingerprinting to so submit agreed and Alexander they at the scene. Defendant if were found police The also police the local station. fingerprinted at and were County Office they go to the Warren Prosecutor’s requested that go asked in the Alexander to make Defendant and to statements. upset too following morning Krouch had seemed because Violet to bed. put Alexander’s children 13, Stephen Krouch drove morning, October following his. Alexander,
wife, defendant, children the Warren and her two gave police statement County Alexander Prosecutor’s Office. murders, day she claiming that on October drug test. for defendant’s gone to Bethlehem defendant had alibi that defendant trial that that was the Alexander testified police told that she Alexander also her to offer. had instructed together only on one house to the Skov and defendant had been approximately 3:00 Prosecutor’s office at She left the occasion. afternoon. *18 meantime, given police defendant had a statement offer- ing subsequently agreed the same alibi. He to polygraph take a test officers administered from the Police. The State test interviews, sequence during involved a which one of the detec- copious tives took notes. The detective testified about the con- interviews, although tents of the was not informed that during interviews occurred polygraph had test. In the course of those interviews defendant his claim revised that he had before, been only at the home Skov once and admitted to a subsequent during visit which had money. Alexander stolen detective informed defendant that he had been seen at the Skov past home in suggested week. He then a scenario in which gone defendant and Alexander had house struggle and a Bell, had perhaps ensued with John even after Bell had threat- ened gun defendant a BB with that Bell owned. Defendant agreed neither suggestions. denied nor with the detective’s early evening, In the after the proceeding had been interview approximately hours, to six five both detectives were out of the room discussing brought whether Alexander should be back to the office questioning. for further When one of the detectives reen- room, tered the crying “pretty defendant was hard.” Defendant then “confessed” to the he detectives that had in fact been Lohman, along involved in the crime with acquaintance Robert his Bangor, from Pennsylvania. general Defendant’s version of the crime, interview, as told to subsequent detectives that video- taped police, tape-recorded statement to and a conversation with office, Krouches at the Prosecutor’s that was Lohman had overheard defendant and Coleen Sportsman’s Alexander discussing money bar in the allegedly Skov house. Lohman approached defendant demanded help that defendant him Krouches, steal money Alexander, or Lohman would harm the and her children. Defendant claimed that that threat had com- pelled help him to Lohman. Defendant’s version the crime was house, that he drove Lohman the Skov but Lohman did the shooting stealing. Although original defendant’s account placed him outside the house while Lohman committed the mur- inside, eventually having witnessed the defendant admitted ders Indeed, the used defendant’s detailed shooting of John Bell. shooting description purported of Bell as evidence of Lohman’s personally the circumstances of was familiar with Bell fell and the shooting, including the manner which *19 gunshot that he suffered. wound ques- confession,
Following police resumed defendant’s Realizing original her alibi no tioning that of Coleen Alexander. credible, that had left longer police Alexander she was told but that he morning on the of the murder house with defendant Manger, a friend dropped had her off at the home of Sheri Bangor testified trial that she had tendered area. Alexander at that it knew from the Krouches was that alibi because she concerning had made her statements defendant consistent with home, they police were the Krouch asked whereabouts. While gun. Stephen Krouch showed owned whether the Krouches in his kept that bedroom closet. them the .22 caliber rifle he did, They briefly it and returned it Krouch. Officers examined however, they in the bedroom .22 bullets that found retain caliber that and defendant shared. Alexander Lohman, defendant, by implicated was arrested the man
Robert morning Police confis- early Sunday, October 14. in the hours had de- handgun, .22 caliber which defendant cated a holstered however, following weapon. day, when the murder scribed as County to interview defendant at Warren Jail officers visited he further, that the statement had him defendant told the officers lawyer he would true that he wanted before given was not speak to them. strategies. pursue other
Apparently, defendant had decided and Alexander arrest on October From defendant’s telephone Alexander at- communication as in constant were Wednesday, tempted On about to establish different alibis. murders, Alexander trav- week after the Coleen one October unsuccessfully drug-test laboratory in Bethlehem and elled to the stating that she and defendant attempted to obtain documentation laboratory day had been on the murders. addition, forged purporting acquain- she a letter to be from an Runyon tance of implied Runyon David that in- had been murders; volved the Skov and acquaintance Bell she told an murders; that Robert Lohman had committed the and she main- repeated tained defendant’s innocence conversations with his mother. report
Police gun received the ballistics on Robert Lohman’s on November it weapon. learned was not the murder They immediately went to the Krouch home and retrieved Ste- phen rifle, Krouch’s .22 caliber as well as the T-shirt and stone- jeans washed day defendant had worn on the of the murders. already Alexander had washed the shirt.
On November members of the State Police interviewed Alexander at the regarding Prosecutor’s Office her activities on day of the murder. She “started out” regarding with the alibi drug-test Bethlehem, visit in and then offered “numerous” *20 Alexander, According alternative alibis. to I “then after couldn’t any deal with more lies I came forth and told the truth. Bits and pieces of the truth in which I had at that time wanted them * * * know. That is the one who [defendant] shot and killed both my my aunt and uncle and stabbed uncle.” She also told the police that she Following interview, had been at the scene. police arrested Alexander. incarceration,
After her Alexander continued to communicate by through with defendant letter prison system. the in-house mail Because defendant and Alexander knew that such letters were by prison officials, pair read used code words to communicate. stand, From the witness Alexander read several of the letters that defendant explained had written to her and meaning. their A letters, main protestations theme of the besides of love and devotion, was that defendant wanted respon- Alexander to assume sibility release, for the murders so that gain defendant could his obtain money Alexander’s release with bail from loan sharks that Trenton, Alexander and her and then flee with knew in he children. by addition, police statements made the State introduced Lesando, inmates, which recounted and Peter Michael Merlo
two the time of defendant around that each had had with conversations conversations, allegedly In those Alexander’s arrest. in the the situation he had shot John Bell because stated that that the safe “agitated” defendant learned had become when house Merlo and purportedly told plastered over. Defendant had been rocking as she sat her he had shot Alice Skov Lesando that chair, hitting her in the head with missing the first shot and with Alexander allegedly stated that Coleen Defendant the second. Bell, well that she had once and noted as had stabbed John explained that because he Defendant also stabbed her husband. Alexander’s father’s the bullets for not know the location of did Merlo rifle, parent’s her bedroom. them from she had obtained with information written reported defendant had a notebook in a search of it, such notebook police found no but trial, claimed that Lesando and Merlo cell. At both defendant’s having had having statements or they not recall made such could evidentiary hear- Following with defendant. such conversations feigning lack were their that both ings, the trial court determined as recall, to introduce statements permitted the State hearsay exception prior incon- evidence under substantive sistent statements. jury returned a County grand May a Warren
On charging defendant and Coleen both seventeen-count indictment Skov, and Alice in the of John Bell murder deaths Alexander with knowingly Bell and Skov killed purposely had alleging that both charged pair with The indictment also own conduct. their *21 Skov, of Bell and knowing murder in the deaths purposeful pur- had Alexander allegations that defendant based on “and/or” bodily injury on Bell knowingly or inflicted serious posely or killed accomplice or co- capacity of an acting in the and while Skov with charged and Alexander conspirator. Other counts murder, robbery, posses- felony types first-degree armed two purpose, possession of the scissors sion of the rifle for an unlawful third-degree possession unlawful of the purpose, for an unlawful scissors, rifle, fourth-degree possession unlawful and con- first-degree first-degree robbery. spiracy to commit murder and County supplied The Prosecutor’s Office defendant’s Warren 14, attorneys aggravating factors on June 1991. with a notice prove intended to The notice set forth two factors that the State (1) regard charges in that the to the murder the indictment: with escape murder had been committed to detection for another (2) murder,” 2C:ll-3c(4)(f), “robbery N.J.S.A and that the and/or in the course of the commission of murder had been committed 2C:ll-3c(4)(g). felony, another N.J.S.A plea In into a the summer of 1992 Coleen Alexander entered agreement County with the Warren Prosecutor’s Office. She murder, agreed plead guilty felony counts to to two counts of two robbery. robbery, conspiracy and one count of to commit She agreed give and to also interviews to the Prosecutor’s office return, truthfully testify against defendant at trial. In the State thirty years agreed parole a sentence of without recommend remaining charges. plea and to dismiss the Alexander entered 2, 1992, agreement July the court accordance with the on and August term on 1992. sentenced her to recommended 2, 1992, Jury began selection for defendant’s trial on November 18, encompassing days during and ended on November nine period. nineteen-day guilt-phase began trial December on 8,1993, January presenting and concluded on with the State thirty-three presenting eight. witnesses and defendant After hours, deliberating approximately eleven convicted defen- purposeful knowing and of Alice and dant of the murders Skov Bell, unanimously beyond a reasonable John determined purposely knowingly doubt that defendant had caused the addition, deaths of Skov and Bell his own conduct. felony-murder, conspiracy, armed- convicted defendant on the counts, concerning robbery weapons-possession and the counts *22 weapons-possession acquitted It defendant of the .22 caliber rifle. regarding the scissors. counts penalty-phase presented prior motions
Defendant
three
First,
jury’s
court set aside the
requested
he
that
the
trial.
by his own conduct.
finding that he had committed the murders
motion, determining
sufficient evidence
denied the
that
The court
had
support
jury’s
the
determination that defendant
existed to
requested
next
the
killed
his own conduct. Defendant
penalty phase, pursuant
empanel
a new
for the
court
2C:ll-3c(l),
presented at
N.J.S.A.
claiming that certain evidence
prejudicial
and
the
guilt phase
the
would be inadmissible
phase, including testimony that defendant had threatened
penalty
bodies,
Alexander, photographs of the victims’
testi
and assaulted
Skov,
mony regarding
age
physical frailties of
and testi
and
themselves as
mony
and Alexander had referred to
that defendant
motion,
Clyde.” The court denied defendant’s
deter
“Bonnie and
prove the
admissible to
mining that
the evidence either was
guilt phase
alleged
admission in the
aggravating factors
or that its
jury.
empaneling
penalty-phase
a new
compel
not
did
aggra
arguments regarding the
Finally,
made several
arguments
on the
vating
Generally, those
were based
factors.
specify
the murder
aggravating
notice of
factors
failure
underlying felony
applied or the
on which
to which each factor
claimed that the factors
Defendant also
each factor was based.
double-counting of the evidence. The court
improper
constituted
regarding
misleading
the notice was not
determined
applied, and
underlying
to which the factors
murders and
offenses
permissible
basing
on the same events was
both factors
regarding
instruction
appropriate
received an
provided the
Bey,
in accordance with State
weighing
of the evidence
II).
(1988)
(Bey
123, 174-77,
N.J.
In accordance with the the court sentenced to death for the of Alice After conduct- murder Skov. 13,1993, concerning ing separate sentencing proceeding April on convictions, defendant’s other the court sentenced defendant to imprisonment thirty-year period consecutive term of life with a parole ineligibility purposeful knowing or murder of John counts, remaining merged felony- Bell. On the the court convictions, respective merged counts into the murder murder counts, armed-robbery felony-murder merged counts into the armed-robbery weapons-possession offenses into the counts. appealed Defendant his conviction and death sentence to this Court, pursuant to N.J.S.A. 2C:ll-3e. Defendant advances nu- appeal, solely merous contentions on some of which relate to his well, sentence, death others of which relate to his convictions as focussing imprisonment. and one on his sentence of The State contending merger cross-appeals, that of certain convictions was improper. Defendant concedes the State’s claim. convictions, concluding alleged affirm that the
We defendant’s either not constitute error or were harmless. errors did We vacate defendant’s death sentence because the trial court did not option returning a non- instruct it had the question had commit- unanimous verdict on the whether defendant by Although ted the murders his own conduct. affirm we defen- Bell, prison dant’s sentence for the murder of John we remand the resentencing matter for vacating view of our decision the death improper merger sentence and the court’s of defendant’s other may again convictions. We note that the State seek the death penalty by retrying for the murder of Alice Skov defendant on charge.
II charge Defendant contends that the court’s and verdict sheet incorrectly if instructed the it convicted defendant of murder, purposeful knowing or it then had to reach a unanimous decision that defendant had committed the murders his own conduct or a unanimous decision that defendant had committed accomplice co-conspirator. the murders as an Defendant *24 claims that the court should have instructed the instead to only unanimously beyond decide whether it found a reasonable by doubt that defendant had committed the murders his own conduct, informing the that a on that non-unanimous verdict acceptable issue was and would not affect the murder conviction. ques- Defendant asserts that an affirmative determination of that penalty-phase hearing, negative tion would result in a and a determination, verdict, encompasses which a non-unanimous would imposition thirty years result the of a sentence of to life imprisonment mandatory thirty-year a each murder. with term for
A
1982,
Legislature
Jersey
Penalty
In
the
Death
the
enacted
New
(Act), L.1982,
Ill,
Act
c.
and
the distinction be
“resurrect[ed]
accomplice”
purpose
principal
tween a
and an
for the
of determin
Gerald,
ing
eligibility
penalty.
for the death
State v.
a defendant’s
(1988).
93,
40,
precisely,
al act conduct” [their] payment. N.J.S.A. 2C:ll-3c. Gerald, adopted “by the his own supra, view that we “ (own-conduct) requirement ‘is not an element of
conduct”
merely
triggering device for the
murder ...
is
[but]
offense of
”
99,
phase
In Moore we that “to prove requirement, beyond ‘own conduct’ State had was the reasonable doubt that defendant’s conduct direct (empha A.2d cause of 113 N.J. immediate death.” at. omitted). added) (emphasis perceive requirement We sis practically, theoretically, proof beyond a as if not reasonable doubt *25 unanimity. of In of synonymous requirement with the the context beyond aggravating to factors a reason prove State’s burden II, doubt, 2C:ll-3c(2)(a), Bey able see we observed N.J.S.A. require jury supra: “Although expressly not to the Act does aggravating factor or finding be unanimous the existence of an factors, unanimity suggests factor not the lack of that the has been ** 159, 112 beyond a *.” at established reasonable doubt N.J. (“The A .2d887. also R. 1:8-9 verdict shall be unanimous See * * *.”) Thus, conclude that in all criminal actions we now prove requirement inherent in the that the State the own-conduct beyond reciprocal requirement criterion a reasonable doubt is the unanimously agree that a that the State has met that burden.
B
Although a
verdict that a defendant committed a murder
unanimous, unanimity
required
conduct must be
is not
his own
guilty
support a verdict that a defendant
of murder did not
to
Rather,
inability
by his
commit the murder
own conduct.
on the own-conduct
to reach a unanimous decision
imposi-
constitutes a final verdict that results
determination
thirty-year
imprisonment
of at least a
tion of a sentence
term,
mandatory
pursuant
to
2C:ll-3b.
N.J.S.A
II, supra,
expressed
qualita
Bey
we
our “awareness
penalty
penalties, a
tive difference between the death
and other
jurors
impose the
that makes it unthinkable for
difference
penalty
they harbor a
doubt as to its
death
when
‘reasonable
156,
(quoting
justness.’”
at
Biegenwald, 106
Indeed, in some
constitutionally required. The United States
nonunanimity is
unanimity requirements con-
that
has determined
Supreme Court
death-penalty proceedings
in
findings mitigating factors
cerning
States Constitution.
Eighth Amendment of
United
violate
433,
1227,
Carolina,
110 S.Ct.
494 U.S.
McKoy North
v.
See
(1990);
Maryland, 486 U.S.
108 S.Ct.
v.
Mills
L.Ed.2d 369
(1988).
Blackmun, concurring in
L.Ed.2d 384
Justice
jury
in
eases of
requirement
federal
supra,
that the
McKoy,
noted
supported the
preliminary factual issues
unanimity
certain
on
unanimity
findings that
jury
on
capital cases of
requirement
defendant,
findings
aggravating
such as
against the
weighed
n.5,
n.5,
at 1237
108 L.Ed.2d
at 449
110 S.Ct.
494 U.S.
factors.
However,
(Blackmun, J.,
as
Black-
concurring).
Justice
385 n.5
out,
eases did
in those federal
principle
advanced
pointed
mun
unanimity
regard
to
requirement of
apply
support
to
not
favoring
findings
a defendant:
* *
its
is
*;
for the
premise
is a
[That]
protection
principle
jurors
to
“Mequiring
a defendant does little
insure
of twelve
to convict
the vote
right
is
unless this prerequisite
to a unanimous verdict
protected
that his
[United States
of action is also
to the defendant’s course
required.”
consensus as
(5th Gir.1977)].
analogous
is no
principle
There
553 F.2d
Gipson,
agree
jurors voting
for their
the basis
requiring
must
upon
acquit
doubt.
reasonable
(second
original).]
[Ibid,
alteration
jurors
requirement
be
constitutional
In addition to the
when those factors
mitigating factors even
permitted to consider
jury, numerous state death-
unanimously found
are not
own,
statutes,
require the trial court
including our
penalty
a unanimous
if
unable to render
sentence
is
impose a life
See,
§Ann.
5-4-
phase.
e.g.,Ark.Code
penalty
final verdict at
(West
16-ll-802(2)(d)
603(c) (Michie 1993);
§
Colo.Rev.Stat.Ann.
(Michie
17-10-31.1(c)
Supp.1994);
§
Ann.
Supp.1994); Ga.Code
(Supp.1993);
§
N.J.S.A 2C:11-
630:5.IX
NH.Rev.Stat.Ann.
(Michie 1994);
§
N.C.Gen.
3c(3)(c);
31-20A-3
NM.Rev.Stat.Ann.
15A-2000(b)
Ann.
(Supp.1994);
Rev.Code
§
Ohio
Stat.
(Anderson
21, §
2929.03(D)(2)
1993);
701.11
tit.
§
Okla.Stat.
*27
9711(c)(l)(v)
(1982);
§
(Supp.1995);
42 Pa.Cons.Stat.Ann.
16-3-20(0)
§
(Law.Co-op.Supp.1993);
Ann.
S.C.Code
Tenn.Code
39-13-204(h)
§
(Supp.1994);
Ann.
Ann. art.
Tex.Crim.Proc.Code
(West
76-3-207(4)
37.071,
2(g)
§
Supp.1995);
sec.
Utah Code Ann.
(Michie 1990);
§
(Supp.1994);
Ann.
19.2-264.4E
Va.Code
Wash.
10.95.080(2) (West 1990);
§
§
Wyo.Stat.
Rev.Code Ann.
6-2-
102(e) (Supp.1994).
procedure departs
customary
That
from the
practice
mistrial,
hung jury
in criminal trials that a
in
results
option
instituting
proceedings
after
which
State has the
of
new
2A:80-3;
against
McKoy, supra,
the defendant. See N.J.S.A
494
n.4, 110
n.4, 108
n.4;
U.S. at 449
at 1237
L.Ed.2d at
S.Ct.
385
State
Hunt,
(1989).
330, 382-83,
v.
115 N.J.
Furthermore,
Legislature
death-penal
in 1985 the
amended the
ty
require
penalty-phase proceeding
statute to
the court in a
expressly
jury
to inform the
that its failure to reach a unanimous
L.1985,
imposition
verdict
result in the
of a life
will
sentence. See
(codified
2C:ll-3f).
Ramseur,
c. 178
at
v.
N.J.S.A.
State
106
123,
(1987),
statutory require
N.J.
514 recognized propriety have state courts note that other
We statutory express absence of an even an instruction such State, 552, 562 See, 492 A.2d e.g., v. Whalen authorization. in clearly to (Del.1985) that failed (concluding instructions defendant); prejudiced option non-unanimous jury of effect of form (La.1984) 498, (holding that failure Loyd, 2d 502-03 v. 459 So. State nonunanimity consequences of request about at its to instruct 1, Baker, Pa. error); v. reversible Commonwealth was (1986) counsel to potential for defense (noting 789 n.8 A.2d informing them special instruction to deadlocked request verdict); Jeffries, 105 Wash.2d option of non-unanimous that informed (upholding instruction P.2d agreement unanimous inability agree on death sentence *28 denied, sentence), in life cert. result against sentence would death (1986). L.Ed.2d 301 107 S.Ct. 479 U.S.
C claim, we conclude Applying principles to defendant’s those determina jury on the own-conduct charge to the that the court’s First, the. court failed related reasons. flawed for two tion was inability reach a unanimous decision jury that its convey to the “by his own conduct” the homicides had committed that defendant imposition in the would result permissible final verdict that awas murder. mandatory prison term on each thirty-year of at least a jury that if it Second, suggested to the the court’s instruction beyond a reasonable doubt unanimously agree not could conduct, it by his own the murder had committed doubt unanimously beyond a reasonable had to find instead accomplice or co- murder as an committed the that defendant had conspirator. original charge on the trial court’s early stage in the
At an only type of counts, jury that “the informed the the court murder knowing purposeful or penalty is eligible for the death murder of alleged in counts one and two as is by his own conduct murder jury that “an informed the The court also the indictment.” accomplice part who does not take in the infliction of fatal wounds addition, subject penalty.” stage is not to the death at that of instruction, original the court referred to the verdict sheet and it informed the that would have to determine whether defen- by
dant had committed the murder his own conduct or as an accomplice: There will be a verdict sheet that all of when deliberate and have, you’ll you, you
the verdict sheet will have to answer one or both of these places you questions. With to the first before conclude that the defendant respect question, you may committed his own conduct, the murder must be convinced of this fact by you a reasonable doubt. If have a reasonable doubt as to whether beyond you killing was his own conduct but satisfied a reasonable doubt that you’re beyond he was an then should indicate that he was an accomplice, you accomplice. eligibility in The trial court made no additional references to death original charge. its offenses, completing
After its instructions on the substantive jury concerning general princi- trial court instructed certain ples, including significance expert opinion and defendant’s right constitutional to remain silent. The trial court then instruct- requirement unanimity: ed the on the “Now since this is a ease, unanimous, your jurors criminal verdict must be all deliberating agree.” must instruction, court,
Immediately following referring the trial sheet, possible to the verdict instructed about the verdicts charges: it could return on the murder charge Skov, verdicts are as follows: On the of murder Alice possible guilty guilty. charge verdict can either be not On the of murder of John your *29 guilty guilty can either not of or of murder. Bell, Donald verdict be murder your going guilty Now if find Lee Brown of murder of Alice Skov аre Bobby you you or not he box, to have to check a one have determine whether box, you’ll knowingly knowingly caused death or or caused serious or her purposely purposely injury resulting thing Donald if Bell, her death. Same with John you bodily guilty found —if find Mr. Brown of murder of John Donald have to Bell, you you’ll knowingly or cause or or death, answer the did he question purposely purposely injury knowingly resulting in cause serious death. bodily guilty Skov, Now if find Lee Brown of murder of Alice then you’ll you Bobby following of his own determination, boxes, have to make the and check one these by conduct or as an or If find the defendant Bobby accomplice co-conspirator. you guilty of Donald have to make the determina- Bell, Lee Brown of murder John you or his own or as an co- to whether or not it was conduct by accomplice tion as There’s for that. boxes conspirator. original charge its without further completed The trial court requirement unanimity. the reference to jury the trial following day presented a note to court The the “by guidance concerning meaning the his seeking further own response In accomplice co-conspirator.” or and “as an conduct” jury options: to that it three find the trial court instructed the had conduct, accomplice or or guilty “by own as an co- defendant his liability accomplice The not conspirator.” court did redefine jury conspiracy but the the substantive crime of did instructed on jury guilty could of murder a inform the that defendant be as not unanimity the co-conspirator. trial court did not discuss The instruction, it inform requirement supplemental in its nor did concerning the jury that a non-unanimous verdict own-conduct prior court acceptable. repeated be its instruc- issue would that the have to determine whether had tion would guilty by his is of the murder own “committed murder or accomplice co-conspirator.” or as an conduct the court have instructed Defendant maintains that should agreement jury that its failure to reach on the own-conduct verdict result permissible was a that would determination mandatory thirty-year at term for each imposition of least a discussed, N.J.S.A. 2C:ll-3f expressly provides murder. As for final verdict in regarding an instruction to the such Ramseur, supra, phase. that such penalty we determined an requirements, supported instruction was constitutional also in a sentencing its discretion rational because could exercise only if it was of its deliberative and consistent manner informed consequences options. sentencing of those options and 311, 524 N.J. A.2d 188. not acknowledge death-penalty does ex-
We
statute
option
provide
regard
to the own-
pressly
a non-unanimous
determination, although
specifically
it
authorizes
non-
conduct
respect
weighing
aggravating
unanimous verdict
with
*30
2C:ll-3c(3)(c).
mitigating
Nevertheless,
factors. N.J.S.A
the
underlying
legislature’s
considerations
express recognition
the
penalty phase
non-unanimous verdicts in the
to determine whether
a defendant
apply
equal
receives a life or death sentence
with
jury
force when a
that has convicted a defendant of murder
decides whether
by
that defendant committed the murder
his own
jury’s
conduct.
penalty phase
The
final verdict in the
results
imposition
either in the
thirty-year
of a life sentence with a
minimum term or
Similarly,
jury
a sentence of death.
a
in
when
a
capital' ease decides whether a defendant committed the homicide
conduct,”
“by his own
its determination establishes whether that
eligible
defendant will
penalty. Although
be
for the death
the
consequences of
penalty-
the own-conduct determination
phase
identical,
verdict are not
analogy
compelling.
is
In the
determining
context of
whether a
should be informed of its
option, any
non-unanimous
inconsequential.
distinction is
record,
As
capital-murder
demonstrated
this
may
guilt phase
raising
focus his or her efforts in the
on
trigger
reasonable doubt about
penalty phase,
issues that
vigorously contesting guilt
rather than
or innocence
on murder
charge.
acknowledges
The State
full
“[t]he
knew
well
that the essential factual issue to be decided was who inflicted the
fatal wounds—defendant or
Coleen.”
also understood
issue,
taking
step
when it decided that
it was
a critical
toward
imposition
that,
of a death sentence. We are convinced
consistent
statutory obligation
jurors
with their
in
рenalty phase,
“ ‘fully
consequences
should have been
informed of the
of their
”
penalties
eventuality.’
votes and the
which could result
each
Ramseur,
supra,
106 N.J. (quoting
Furthermore, procedural consequence nonunanimity penalty phase consequence is identical with the of nonunanimi- ty in the own-conduct determination: a that defendant is verdict guilty of murder and should be sentenced accordance with N.J.S.A. 2C:ll-3b to at least a mandatory thirty-years term of *31 inability does the in neither instance Significantly,
imprisonment. mistrial, hung jury and it in a jury reach a verdict result of the resulting in a instance verdict in either jury’s non-unanimous Moreover, in Rams acknowledged as we conviction. valid murder permissibility on the eur, of an instruction supra, in the absence verdict, failure to belief that a an erroneous a non-unanimous “ juror to ‘reasonably may [sway] a result in a mistrial agree will convictions, hold to his honest join majority, [to] rather than * * * and court officials to forcing parties, witnesses to avoid ” A.2d 188 proceedings.’ 106 N.J. undergo additional 635). Hence, Williams, we conclude supra, 392 So.2d at (quoting juries in for trial courts to inform proper approach is that the verdict on option to return a non-unanimous capital of their cases by his own conduct. committed the murder the defendant whether penalty phase procedure to the mandated Similar significance the own-conduct deter process, the death-penalty penalty phase supports the conclusion triggering mination nonunanimity option. jurors instructed on the must be express on the non- omitting an instruction In addition to regarding instruction option, the trial court’s unanimous-verdict clearly was own-conduct determination jury’s options on the jury to the con- trial court’s instruction Because the incorrect. followed duty a unanimous verdict was cerning the to return requiring jury to decide immediately by the instruction almost by either his own committed the murders defendant had whether effectively co-conspirator, the court accomplice or or as an conduct a unanimous verdict required the to choose between by or a the murder his own conduct committed defendant had the murder as an he had committed unanimous verdict However, that the the sole issue accomplice co-conspirator. or unanimously it convinced whether was jury had to decide was committed the defendant had beyond reasonable doubt that question negative A answer to that by conduct. murder his own non-death-eligible. to render defendant have been sufficient would finding had committed that defendant alternative unanimous No required. co-conspirator was accomplice or the murder as an D argument guilt address the State’s that the verdict of We purposeful knowing on murder made an instruction on the non- unnecessary. suggests option unanimous The State that the non- unanimity option apply should not to the determina own-conduct tion, murder, part to convict a because definitively must determine whether that defendant committed the accomplice. According murder conduct or an his own as State, committing if had to decide defendant acted as a the acts principal by [Alexander] which or if An ... himself caused death committed those acts. ‘either *32 or no on which decision on defendant’s for the ..., but surety theory liability charge knowing hung substantive of or murder would have resulted in a purposeful
jury, not a murder verdict. non-capital Accordingly, argues, the State the court’s instruction and verdict accurately presented sheet the two available verdict options: unanimity unanimity accomplice on own conduct or on or Furthermore, co-conspirator liability. points out that the State jury uncertainty theory liability applied “a about which of was legal impossibility” purposeful because defendant’s convictions on knowing already or murder entailed a unanimous decision on particular theory liability. a of accept premise that to convict defendant
We do not
State’s
murder,
purposeful
knowing
required
unani-
of
or
was
theory
mously
agree
proved
specific
to
that the
had
Gerald,
liability beyond
supra,
recog-
a reasonable doubt.
we
purposes
determining
guilt,
an actor’s
both the
nized that
“[f]or
Jersey
statutory
Justice]
Code of Criminal
and the
[New
preceded it
the distinction between
common law that
abolished
93,
principal and'accomрlice.”
was the they accomplice, knowingly charged that actors both of the offense as principal elements alleged criminal act. participated banc).] (Del.1988) (rehearing 122-24 en v. 547 A.2d [Probst State, 114,
521
Cir.)
Peterson,
(2d
64,
v.
(noting
See United States
768 F.2d
66-67
principal or
unanimity regarding defendant’s role as either
requiring unanimity on
required,
is not
but
aider and abettor
charged in count of indictment was basis for
of two acts
which
denied,
923,
257,
verdict),
cert.
474 U.S.
106 S.Ct.
We
“properly
pra, 113 N.J. (noting
nonunanimous about which offense. returning guilt a on the criminal cluded from verdict pur guilty of the jury’s verdict that defendant was required Bell knowing murder of Alice Skov and John poseful and responsible for jury that defendant was to have determined doubt, by either his own con beyond a reasonable the murders duct, co-conspirator, require did not accomplice, or as a but as an Thus, theory liability. possibility unanimity specific on requirement re verdict on the own-conduct of a nonunanimous jury guilt on the possibility after the decided defendant’s mained a possibility charges. whether that was murdеr We next consider the court’s failure sufficiently great to warrant a conclusion that properly charge option on the of a nonunanimous to prejudiced defendant. verdict
E
consistently emphasized
have
that clear and
Our decisions
See, e.g.,
are
for a fair trial.
correct
instructions
essential
(1993)
Martini,
176, 271,
(citing
131 N.J.
of the court
trial
presented
the evidence
determination because
support
theory
simply
the defense
did not
a conclu-
proposed
*35
jury might
a doubt about whether
sion that the
have harbored
by
In
the murder
his own conduct.
defendant had committed
(1990),
523,
McDougald,
Given those
single juror
not
certainty
jury
a
degree of
that the
—could
—or
or
whether defendant
a reasonable doubt about
have harbored
acknowledge
the record
Alexander killed the victims. We
Alexander
compelling
to conclude that
present
not
a
basis
does
juror
victims,
on which a
present
it does
a basis
killed the
but
or Alexan-
about whether defendant
could hold a reasonable doubt
victims,
geared
particularly
the defense was
killed the
when
der
slimmer eviden-
entirely
creating that doubt. On
almost
toward
439,
Long,
in
575 A.2d
tiary support, we observed
State v.
N.J.
(1990):
[Although
was inconsistent with
of
defendant’s defense
any theory
accomplice
argued
jury
to the
the State’s evidence of the
counsel could have
liability,
might
doubt,
there,
role
have created a
not that defendant was
other accomplice’s
entitling
charge.
thus
him to an
shooter,
but
that he had been the
accomplice
* * *
jurisprudence
recognize the
with
We
public impatience
capital-punishment
right
this defendant
but we cannot conscientiously
constitutionally deny
of law.
stated
tried in accordance with correct
We have repeatedly
be
principles
Legislature
that the
wished the law to
to all
that we are convinced
apply equally
defendants.
capital
(citations omitted).]
[Id.
When we assess
instructions,
inescapable
conclu
the court’s erroneous
charge
clearly capable misleading
of
sion is that the court’s
“was
Harmon,
jury.”
supra,
The erroneous
defendant
have convicted
could
because the
der convictions
had
whether defendant
disagreed about
if it had
murders even
conduct,
accomplice, or
as an
by
own
murders
his
committed
Gerald,
37;
at
651 A.2d
supra at
co-conspirator. See
as a
Thus,
of the
99-100,
our reversal
792.
549 A.2d
supra, 113 N.J. at
those convictions.
not affect
sentence does
death
made no
has
that defendant
Additionally, we observe
á nonunanimous
in fact reached
showing
claim that
Therefore,
reversal
our
determination.
on the own-conduct
result
from
preclude
not
State
would
death sentence
defendant’s
Ramseur, supra, 106 N.J. at
seeking
penalty.
death
again
Cf.
charge
improperly
313-15,
(concluding that
524 A.2d
of Czachor
violation
unanimous verdict
jury to reach
coerced
required that
inability
reach verdict
indicated
had
after
foreclosed
verdict and
of non-unanimous
receive benefit
defendant
remand).
on
seeking
penalty
death
from
however,
have
verdict,
would
the State
death-penalty
To seek
for the
murdering Alice Skov
charge of
retry
on the
defendant
he com
doubt that
reasonable
establishing beyond a
purpose of
post-
supplemental
own conduct.
his
that murder
mitted
ac
counsel
and defense
Attorney General
argument briefs
Alice
murder of
conviction
knowledged that defendant’s
again
seeks
on remand
if the State
must be vacated
Skov
(mandating
2C:ll-3e
See N.J.S.A.
that offense.
penalty for
death
act
homicidal
committed
whether
determination
also
phase). See
penalty
prior to
be made
conduct”
“by his own
(“Section c of the
A.2d 188
Ramseur,
N.J. at
supra, only on those who
imposed
to be
penalty
the death
permits
Act
to do
pay another
or who
own conduct’
‘by [their]
murder
commit
narrowing
degree of
certain
provide for a
Act does
Thus the
so.
added).
our
rely
well on
as
We
(emphasis
guilt phase.”)
*39
Gerald,
holding in
supra,
rejected
in
option
which we
the
preserving the defendant’s
jury
murder conviction so that a
on
followed,
remand could first
death-eligibility,
determine
“to be
if
found,
eligibility
by
be
sentencing proceeding.”
a new
at
N.J.
Although
must be retried from the [Id. 887.] at 548 A.2d Should the forego option seeking penalty the death remand, on the trial court required would then be to sentence defendant on his conviction for the murder of Alice Skov in Furthermore, accordance with N.J.S.A. 2C:ll-3b. light of our disposition in favor of the cross-appeal State on its regarding the improper merger court’s robbery of the weapons-possession and offenses, 560-561, 58-59, 651A.2d at the trial court will be infra required on remand sentence charges. defendant on those to.
Ill We now address only defendant’s other contentions they extent that raise issues that аre potential relevant to a retrial guilt penalty of the and phases. Improper
A. Accomplice Co-conspirator Instructions on
Liability alleges
Defendant failing trial court erred properly to instruct accomplice on co-conspirator liability. In original charge, its the trial properly court instructed jury, indictment, consistent with the that defendant could be by homicides his own guilty of if he committed the murder conduct, accomplice person if who or an of the committed he was b(3). However, 2C:2-6a, contrary to the homicides. See N.J.S.A. indictment, instruct trial court failed to engaged if had guilty of murder he been defendant also could be homicides, or he had conspiracy commit the whether not in a an his conduct had been committed the murder own accomplice person who committed the homicides. See *40 2C:2-6b(4); Bridges, 133 also N.J. N.J.S.A. see (“[A] (1993) conspirator held for the can be liable 628 A.2d arising reasonably foreseeable risk acts of others that constitute conspira to effectuate the of the criminal conduct undertaken out consequences necessary of the cy, occurring the or natural and as conspiracy.”). jury on to instruct the apparently
The trial intended court he murder on the basis that exposure to a conviction defendant’s homicides, alleged in conspiracy to the as engaged in a commit had However, trial of the the three and four indictment. counts jury on original charge the the substan- instead instructed court’s 2C:5-2, for which defendant had conspiracy, of N.J.S.A tive crime crime, however, can The commission of that been indicted. also contemplated the offense completion without of substantive occur offense, here, as is a if the conspiracy, and substantive the graded is as a conspiracy offense degree, crime first second-degree N.J.S.A. crime. 2C:5-4. clarify- deliberations, jury requested an instruction
During or liability accomplice own-conduct ing the difference between by defining own- responded The co-conspirator liability. court of- its on the substantive liability, repeating instruction conduct jury omitting again to instruct the but conspiracy fense of solely that he on basis convicted murder defendant could be person the homicides. conspired to commit with another had liability for was co-conspirator murder accomplice nor Neither supplemental instruction. explained the court’s death Given our reversal of defendant’s sentence on other 509-28, 32-41, grounds, supra see 651 A.2d at we need not analysis undertake a detailed of whether the court’s in- flawed prejudiced respect structions defendant the own-conduct triggered penalty phase. respect, determination that one the trial court’s failure to instruct the that defendant could be conspired convicted of murder if he to commit the homicides by limiting grounds benefitted on which the guilty charges. could return a verdict on the murder Neverthe- less, potential prejudice. we also note the The court’s instruc- emphasized jury’s tions and verdict sheet that the on decision requirement own-conduct was a choice between alternative theo- hand, liability liability, ries on the one or accom- —own-conduct plice co-conspirator liability Clearly, jury’s or on the other. request supplemental charge for a liability on own-conduct accomplice co-conspirator liability suggests or that the was uncertain about those theories or the distinction them. between uncertainty responded court increased that when it jury’s request explanation only liability, with an of own-conduct explanation accomplice co-conspirator liability and no of either interrogatory required for murder. Because the own-conduct *41 precise to make a determination on the issue it about which confusion, expressed later the court’s failure to resolve that confu- sion makes the own-conduct determination less reliable. Admissibility B. Prior-Bad-Act Evidence prejudiced by Defendant claims that he was the introduction of testimony concerning prior testimony inadmissible bad acts. The alleged prior concerned defendant’s abuse of Coleen Alexander children; testimony and her shortly Alexander’s after meet- defendant, ing put up respect she had for him in bail of an offense; money unrelated Alexander’s and defendant’s theft of grandmother; from the home of Alexander’s and defendant’s alleged relationship sexual with another woman. Defendant con- testimony tends that the introduction of such violated former (now 404(b)) pre-trial Evidence Rule 55 also N.J.R.E. and violated
531 notify if intended to defendant it requiring the State to orders 404(b) (Because “Rule evidence.” N.J.R.E. introduce so-called 55 55, Evidence Rule we respects materially different from is in some of Evidence Rule contentions the context consider defendant’s 55.) admissibility extensively of evi with the
This Court has dealt Oliver, 141, See, e.g., N.J. prior State v. 133 dence of bad acts. Stevens, (1993); A.2d 144 115 N.J. 558 833 A .2d State v. 627 (1989). Stevens, history purpose of former explored the and we Rule Evidence 55: * * * recognition Underlying that other-crime evidence may Rule 55 is the * * * prejudicial. highly its Despite be simultaneously probative extremely to criminal is evidence offered worth, solely prove disposition other-crime
probative
as
law:
Rule,
under the
at common
excluded
motivating
confusion,
to
unfair
said to be
avoid
surprise
“The
are
policies
prejudice.”
added)
(emphasis
(quoting
59
Ascolese,
A.2d
[
Q. grandmother’s, didn’t you? *42 I I did as was told. A. right. generally as You did were And that’s Q. you told, you’ve what done
throughout thing, just right? whole as this done been you’ve told, I was A. I did what told because I was afraid. were afraid of Mr. Oh, Brown?
Q. you
A. That’s correct. Mr. Brown threatened I think, said correct?
Q. you, you A. Mr. Brown not Mr. me, [sic] threatened Brown has beaten me several only strangled dog killed me the beat times, me, almost last time he me chain, with me. urinated on point, At that defense counsel asked court to Alexan- instruct responsive der questions to be and not volunteer informa- gave tion. The court the instruction and contin- defense counsel ued: Miss Alexander, this man threatened
Q. you say correct? you, A. Also me. beat He threatened life?
Q. your
A. Yes. He threatened children’s life?
Q. your
A. beat He also son with a stick. my immediately Defense counsel then focussed on the fact that Alex- jail, ander had written love letters to defendant in and introduced into evidence letters that Alexander and her son written had on behalf praising defendant’s after his arrest defendant’s character as a husband and father. portion
That of the clearly cross-examination shows defense elicited from Alexander claims that she had been threat- ened defendant so praise the letters of then could be introduced, presumably both as substantive of defen- evidence dant’s impeach credibility. character and also to Alexander’s That Alexander examples prior continued to volunteer of defendant’s responses bad acts in her to cross-examination does not constitute theory a basis reversal for a on the that Evidence Rule 55 would precluded admissibility have testimony part of her if offered as case. State’s We note also that theft references to the from grandmother’s payment house and' to of a bail bond on defendant’s behalf also occurred on defense counsel’s cross-exami- nation of Alexander. *43 testimony admissibility of of also the
Defendant contests State, that defen parents, and elicited the offered Alexander’s weapon, availability of the murder dant had learned about rifle, a to use it Krouch made veiled threat Stephen Krouch’s when allegations that defen against after Krouch had heard defendant testimony objected to the beating Alexander. Defendant dant was testimony requested violated Evidence a mistrial because the if such pre-trial requiring order notice evidence Rule 55 and a request, and defen be The court denied the were to introduced. instruction. Because offer of a curative dant declined the court’s retrial, testimony a to at we may wish introduce the the State propriety. its address directly implicate Evi- not believe that the evidence does
We testimony been offered to parents’ Rule If had dence 55. Alexander, testimony would prove that defendant had beaten Rather, hearsay. introduced the have been inadmissible why explain abuse of Alexander to defendant’s references defendant of the existence Stephen Krouch had informed had committed rifle, prove that defendant primarily and not past wrongs. retrial be admissibility if offered at should of the evidence probative value and risk of its relative on determination
based
trial
an
left to the
prejudice
evaluation best
under N.J.R.E.
Stephen
clearly supports
Krouch’s
Although
court.
the evidence
rifle,
evi
testimony
about the
other
that he informed defendant
Thus,
knew
the rifle.
that defendant
about
dence also established
he had
testimony explaining why he told defendant that
Krouch’s
rifle,
perceive to be
jury might improperly
evidence
which the
Alexander,
carefully
be
scrutinized
should
defendant’s abuse
connection,
dissenting
our
we note
it is
In that
before
admitted.
easily
have
avoided
State could
colleague’s
“[t]he
observation
simultaneously imparting to the
testimony while
prejudicial
prior
weapon
knowledge of
jury that defendant had
A .2d at 73.
murders.” Post
commission of the.
challenged testimony
The other instances of
do not
testimony regarding
merit extended discussion. Neither the
de
sexual
another
nor
fendant’s
acts with
woman
Alexander’s testimo
ny
pointed
night
her the
before
rifle at
up”
impli
murders and said “stick ’em
constituted evidence
Evidence
because
acts
cates
Rule
those
were neither criminal
*44
Porambo,
wrongs,
required by
nor civil
as
the Rule. See State v.
424-25,
416,
N.J.Super.
(App.Div.1988);
226
544 A .2d870
State v.
35,
Zarinsky,
56,
N.J.Super.
143
A.2d 611 (App.Div.1976),
362
(1977).
aff'd,
101,
Furthermore,
A.2d
although
75 N.J.
crimes,
acts,”
Rule 55
to
applies
wrongs,
Evidence
“other
clearly
testimony
Alexander’s
show
tends to
defendant’s intent to
robbery,
rifle
opportunity
preparation
use the
for the
and his
so,
expressly
categories
to
both of
are
do
which
enumerated
for
admissibility
Rose,
454,
under the Rule. See also
112 N.J.
(1988)
488-89,
(deciding
548A.2d 1058
that evidence of defendant’s
prior
showing
weapon
statements and
to
acts
intent
use murder
against
purposeful
others was admissible to show
intent and
murder).
of
absence mistake or
testimony
accident
time of
The
regarding defendant’s sexual acts with another woman is relevant
suggestion
to counter the defense’s
that defendant’s confessions
by
were driven
his
to
protect
devotion Alexander and
to
desire
her,
important
Thus,
an
issue in the case.
the evidence should not
55,
be excluded under Evidence Rule
and would be admissible
subject to
probative
the trial court’s
of
determination
its relative
prejudice,
risk of
pursuant
value and
undue
to N.J.R.E. 403. See
McDougald, supra,
577-79,
(holding
We next address defendant’s claim that the court given specific limiting have regarding should instruction prior-bad-act guilt its consideration evidence at both the phases. penalty note that We N.J.R.E. the successor to limiting give a court shall Rule states Evidence provides for waiver expressly request,” and “upon instruction comment Committee Supreme Court the instruction. limiting sua give a instruction clear that failure rule makes is reviewable prejudice, the risk of required to avoid sponte, when A.2d 230 error, Cofield, 127 N.J. citing State v. plain as provision acknowl (1992). However, to the waiver the comment instruction forego such an may party wish edges that limiting instruc Thus, give a a court must while tactical reasons. support warranted, request, we find no tion, lack of a despite the if instruc provide an a court should suggestion that for defendant’s to waive it. decision party’s calculated despite a tion provided should have the trial court Although agree that we guilt at the close of limiting instruction general jury with a regarding the error claims of disposition of defendant’s phase, our to conclude leads us evidence prior-bad-conduct admission Indeed, given defense harmless. so was to have done the failure regarding the limiting instructiоn of a tactical waiver counsel’s strategic decisions apparently testimony, and the Krouches’ *45 evidence, challenged we other much of the to elicit defense counsel ran concerning that evidence limiting any instruction that observe strategy. trial interfering defendant’s with the risk of penalty phase. view apply to the considerations Those same grounds we decline on other sentence of the death of our reversal give to court’s failure the analysis of whether an to undertake prior testimony defendant’s about respect in of limiting instruction evidence, as discussed, such of that some As acts was error. bad by defen- was elicited grandmother, from defendant’s the thefts of Coleen the role to demonstrate strategic purposes, dant for over defen- controlling influence her and in the crimes Alexander factors that was relevant That evidence dant. presents If defendant mitigation. in jury to consider
wished the opportunity to rebut has mitigation, evidence Furthermore, 2C:ll-3c(2)(d). if a defen- See N.J.S.A evidence. be admissible ordinarily would not relies on evidence dant trials, under the rules of evidence in criminal the State has the opportunity present to evidence under that same relaxed standard. 2C:ll-3c(2)(b); McDougald, supra, also 120 N.J. See N.J.S.A. see 548-49, constitutionality evidentiary (upholding at 577 A .2d419 of 2C:ll-3c(2)). persuaded, provisions in N.J.S.A We are not for required example, that the court was to instruct the that it complimentary could consider the letters written about defendant Alexander, testimony but that it could not consider Alexander’s abuse, regarding prior apparently defendant’s which defendant very purpose offering elicited for the of the letters into evidence as rebuttal. difficulty
Despite fashioning appropriate limiting an in struction, direct the attention our we trial court’s to observation Rose, context, supra, penalty that “in a death in the and face * * * inflammatory past abundant and evidence of defendant’s conduct, necessity precise limiting for a careful and instruction compelling.” clear and [the] [is] N.J. 548 A.2d penalty 1058. We are confident that the event of retrial of the phase, preserves an court will craft instruction that respective evidentiary rights of the State and defendant but does permit inflammatory not irrelevant and evidence to infect the penalty-phase deliberations. Appellate on
C. Court’s Comment Potential Review for prejudi Defendant claims that the trial court committed jury during guilt phase cial error when it informed the * * * go up appeal “sometimes these cases on are reversed * * * time, you put all of the all of the weeks and effort that go [naught].” purpose in would of the comment was to juror perceived length abate discontent with number and interruptions required permit legal trial the court to resolve Although issues. our of the death reversal sentence makes the *46 issue, penalty phase effect of the comment on the a moot we capacity prejudice consider whether the comment had the guilt phase. the appel potential for reminded of the jury A should not be jury’s sense of review, may prospect diminish because that late jury to encourage the might and for its decision responsibility certainty than degree of a lesser verdict based on render a 320, 328-34, 105 Mississippi, 472 U.S. v. required. See Caldwell (1985); 2639-42, 239-43 L.Ed.2d S.Ct. 534, 552, (App.Div.1990). N.J.Super. 571 A.2d
Slattery, 239 However, improper. unnecessary and was court’s comment have the did not isolated comment convinced that we are for the responsibility diminishing jurors’ sense of effect of be rendered. verdicts to of a
First, in the context not made the comment was made preceding that comment remarks The court’s instruction. juror addressing potential discontent the court was clear that by the delays prompted were by delays, and that those caused the court’s observed that legal The court to resolve issues. need might result in a reversal. legal issues resolution of the improper were jury’s determinations made that suggestion No was Furthermore, was an isolated the reference subject to review. liineteen-day day of a on the tenth that the court made comment testimony over from and spanned five weeks trial that included Moreover, three the comment heard forty witnesses. Finally, in its began guilt-phase its deliberations. before it weeks guilt-phase beginning of the jury at the to the opening comments phases, guilt penalty trial, charges in both the during its duty to “alone” had the jury that it stressed to the the court squarely it shouldered and that the factual issues determine imposing the death sentence. responsibility for are not potential for review regarding the Although comments special proceedings, a penalty-phase guilt-phase or proper in guilt present in the that is not penalty phase danger exists that death is sentencing jury is unconvinced “Even when a phase. ‘send a wish to might nevertheless punishment, it appropriate acts. This defendant’s disapproval for the message’ extreme assur- very receptive [court’s] might make the desire *47 538 may freely ‘err because the error be
anee that it can more ” Caldwell, 331, 105 supra, at appeal.’ 472 U.S. S.Ct. corrected on Williams, 2641, Maggio 464 (quoting L.Ed.2d at 241 U.S. (1983) J., (Stevens, 46, 54-55, 104 L.Ed.2d S.Ct. qualitative a concurring)). penalty phase The involves assessment appropriate for a defendant who by' jury of what sentence is presents much already guilty. That context a has been found message” guilt than does the greater risk that a will “send a deciding phase, in is still whether the defendant which should be convicted. capacity the court’s remark did not have the
We conclude that responsibility to undermine the sense of with which guilt phase, require performed duty its in the and thus does not convictions. reversal of defendant’s Lesando and D. Admission Prior Inconsistent Statements Merlo challenges
Defendant the introduction of statements made by prosecution Peter Lesando and Michael Merlo. Those they had statements related conversations had with prison in admitted his involvement in the while which defendant Both murders and that he had been the shooter. Lesando they prosecutor Merlo informed the before trial that would not testify they could to those conversations or the statements because having sought not remember the events occurred. The State prior have Lesando’s and Merlo’s statements introduced as incon 63(l)(a) (now pursuant to Evidence Rule sistent statements 803(a)). findings separate evidentiary Based on hear N.J.R.E. ings, the court determined that both Lesando and Merlo were recollection, prosecu that the feigning their lack of and concluded prior as sub tion could introduce their inconsistent statements stantive evidence. 803(a)(1) Jersey part:
New
Rule of Evidence
states
following
rule:
statements are not excluded
by
hearsay
(a)
who
A statement
made by
person
Prior statements of witnesses.
previously
hearing,
have
admissible if made by
at a trial or
it would
been
is witness
provided
testifying and the statement:
the declarant while
* *
(1)
hearing
*.
at the trial or
is inconsistent with the witness’ testimony
calling
it is
witness,
is offered
However, when the statement
party
*48
(A)
foregoing
in a
it
is contained
admissible
in addition to the
if,
requirements,
only
writing
signed
recording
in circumstances
in a
made or
the witness
sound
by
* *
establishing
*.
its reliability
(N.J.R.E. 803(a)(1)
text of former
restates almost verbatim the
63(l)(a).)
Evidence Rule
(1991),
Mancine,
232, 246-47,
124
In
v.
N.J.
State
(1990),
Gross,
1, 7-9,
we
121
The issue prior inconsistent prosecution can introduce in a criminal that he cannot testifies of its witness when witness statement in the described making the statement or the events recall either feigning statement, that the witness is court determines and the prior that the state- Defendant claims that lack of recollection. 63(l)(a) because Evidence Rule were inadmissible under ments they events the statements or the failure to recall the witness’s testimony that was inconsistent with not constitute related did 540 Furthermore, if the claims that even
prior statements.
inconsistent, admitting
substantive evi-
them as
were
statements
state constitu-
violates defendant’s
in such circumstances
dence
recollection,
witnesses,
the lack of
right to confront
because
tional
impossible.
cross-examination
feigned,
if
makes effective
even
72,
1291,
N.J.Super.
524 A.2d
Bryant, 217
In State v.
certif.
denied,
978,
24,
denied,
528 A.2d
cert.
484 U.S.
108 N.J.
(1987),
squarely
Appellate Division
L.Ed.2d 488
S.Ct.
and,
acknowledging that courts were
although
the issue
addressed
prior
question, determined that
the witness’s
divided on the
hearsay excep
was admissible under
inconsistent statement
state constitu
the defendant’s federal and
tion and did not violate
77-79,
We
regarding the facts contained
feigned lack of recollection
that a
testimony and is not
prior
statement constitutes inconsistent
Owens,
See,
hearsay.
e.g.,
v.
484 U.S.
as
United States
excluded
(1988) (“It
844-45,
951,
554, 563,
838,
L.Ed.2d
960
108 S.Ct.
98
* * *
can avoid
strange
to assert
that a witness
would seem
testimony
prior proceeding that is inconsis
of
from a
introduction
memory
testimony by simply asserting lack of
trial
tent with his
related.”);
testimony
v.
prior
which the
United States
the facts to
Cir.1987)
(5th
943,
advisory
(discussing
Bigham,
F. 2d
946-47
812
exception
prior
inconsistent
note to federal rule that
committee
witnesses);
against
protect
“turncoat”
United
statements would
(7th Cir.1985)
DiCaro,
1314,
(noting
v.
772 F. 2d
1321-22
States
meaning
hearsay
exclu
accepted
that “inconsistent” within
view
denied,
“diametrically opposed”),
475
mean
cert.
U.S.
sion does not
1458,
(1986);
1081,
v.
L.Ed.2d 716
United States
106 S.Ct.
89
(4th
denied,
Cir.1982),
282,
461
F.
cert.
Murphy, 696
2d
283-84
2124,
(1983),
945,
denied
541
(1983);
490, 496
Rogers,
F.2d
That
is shared
state courts.
Van
(Alaska
State,
1047,
Ct.App.1983);
Hatten v.
666 P.2d
1050-52
Johnson,
1183,
702, 719,
People
Cal.Rptr.2d
v.
3
14
842
Cal.4th
(1992) (‘When
1,
memory
P.2d
18
a witness’s claim of lack of
evasion, inconsistency
implied.”),
amounts to deliberate
is
cert.
—
denied,
-,
114,
(1993);
114
As
has abandoned
permits
party
prior
introduce
expressly
its witness’s
inconsis-
approach allows
tent statement as
evidence. That
substantive
prior
of events contained
to believe the version
presented
statement over the version
the witness
trial —even
suggests
lack of recollection
events
when
witness’s
Thus,
feigned
agree
and statement
we
that a
lack
never occurred.
inconsistency on
the admission of a
of recollection is an
which
prior
may
witness’s
inconsistent statement
be based.
*51
Furthermore, although
recognize
feigned
that a witness’s
we
may sharply
nullify
limit or
the value of cross-
lack of recollection
examination,
agree
Supreme Court’s
we
with the United States
Owens,
557-61,
841-43,
analysis
supra,
at
The Court
defendant’s conviction
hearsay
prior
identification violated the federal
evidence
rule,
prior
if the
permitting admission of a witness’s
identifications
cross-examination,
subject
see
testifies at trial and is
witness
801(d)(1)(C), and the Sixth Amendment’s Confronta
Fed.R.Evid.
“squarely
case
The Court determined that
tion Clause.
had reserved in
presented” an issue that the Court
California
(1970):
Green,
149,
1930,
that he would have reached issue underlying that are the to “recall either the events held that witness’s inability extra-judicial subject or recollect of an statement testimony previous given, not have Amend- under which the statement was does Sixth circumstances ment consequence.” (quoting at Green, at L.Ed.2d at 957 399 U.S. [Id. supra, at S.Ct. 558, 108 added).] 514) (emphasis 26 L.Ed.2d at S.Ct. guaran- confrontation also conclude that the constitutional We by regarding lack of recollection tees are not violated a witness’s in such a prior statement or the events described an introduced feigned essentially a finding The recollection is statement. lying the statement finding by the court that the witness is about in the the contents of the statement. That the lie is and about memory outright rather an denial that the form of a loss of than significance purpose for the occurred is not of constitutional events objective Jersey exception One of the New of cross-examination. hearsay prior expose statements is to to the rule for inconsistent lying, give possibility that the is and to witness may it choose to use alternative account of the events that an rather than the account offered as substantive evidence however, jury, and make a must observe witness witness. is true. decision about which account significantly- question would have had a whether defendant We they if opportunity Lesando and Merlo enhanced to cross-examine they simply had denied that had made the statements or had event, spoken to defendant about the murders. In that discrediting would have been left to the same means of suggesting statements that he used at trial: that Lesando and murder, spoken had contact Merlo had with others about the had Alexander, newspaper, had read the accounts in the with Coleen up disposition or had made the statements to benefit them in the of their own criminal cases.
That statements admitted on the Lesando’s Merlo’s were feigned necessarily basis of lack of recollection did not cause a less testimony effective cross-examination. Defendant elicited con- cerning drug use at the Lesando’s erratic state of mind and his gave police. time the statement to Lesando testified that the he prosecutor’s inquired officials from the office had not about his day gave expressed state of mind on the he the statements. He *53 in placed doubt that he have been back a cell with defen- would given dant had he in fact such a statement. Defense counsel also newspaper explore was able to whether Lesando had read ac- crime; counts of the whether he had had contact with Coleen Lohman, prison; Alexander in and whether Lesando knew Robert person originally the that defendant had claimed to be the killer. testimony from Lesando about his Defense counsel also elicited statement, suggested alleged mental at the time of the state implicated that in other conversations with Lesando defendant had Finally, elicited testimo- Alexander as the killer. defense counsel recently-commit- ny exposure prosecution to about Lesando’s ted crimes. revealing. He
Admittedly, Merlo’s cross-examination was less at essentially regarding he had no recollection the events stated Nonetheless, that Merlo that time. defense counsel established sentencing plea bargain and favorable had received favorable police. shortly having given after his statement admitting the conclude that the trial court did not err We court prior statements of Merlo and Lesando. The inconsistent circumstances, prior correctly the state- concluded that under the concerning conversations by police witnesses to ments made both they inconsistent with the had had with defendant were feigned regarding lack of recall those statements and witnesses’ statements, Thus, admit those the decision to conversations. Gross, guidelines supra, forth in 121 N.J. accordance with the set proper. Finally, hold that A .2d was we statements, in the context of the witnesses’ of those admission them, truthfully deprive unwillingness testify about’ did not right by the of his constitutional to be confronted against him. witnesses Regarding Bargain Plea
E. Instruction Alexander’s that the court should have instructed Defendant contends although plea agreement condi Alexander’s was testimony, the fact that the had not tioned on her truthful agreement implicit her did not constitute an endorse withdrawn veracity. find no merit in defendant’s claim. ment of her We Testimony regarding requirement plea agreement in the testify truthfully by prosecution elicited both the Alexander was However, prosecutor suggested never that the and defense. testimony plea agreement promise of truthful contained any testimony truthful. provided assurance that Alexander’s was Furthermore, specifically trial court instructed the that it give scrutiny” testimony had to “careful to Alexander’s because possibility prospect of beneficial that it was influenced request did not the instruction that treatment. Defense counsel necessary. defendant now claims was *54 Considering during lengthy trial to the the lack of attention this agreement, question in the whether pledge of truth contained we properly bringing jury’s the court would have acted deliberation, request from, prior attention to without coun- defense sel, plea agree- pledge the existence of the and the fact that the instructing ment had not been withdrawn —and then could have been disregard it should that fact. Such an instruction any than harm caused the court’s damaging more to defendant jury. failure to so instruct Challenges
F.
to Voir Dire
challenges
adequacy
respect
Defendant
of the voir dire
Essentially,
argues
qualification.
that the inade
death
jurors
prospective
may have resulted
quate questioning of several
jurors
automatically
for the
seating
in the
who would have
voted
enough
not
information was elicited re
penalty,
death
because
properly
garding
court or defense counsel
their views for the
Biegenwald, supra,
qualification.
126 N.J.
assess their death
See
32,
peremptory
(noting that exhaustion of
chal
at
Because we reverse
required.
this voir dire is not
grounds, an extended examination of
length
special
require
concerns and
addressed at
We have
cases,
applied
regarding
death-penalty
and have
ments
voir dire
raised in those cases.
principles to the
selection issues
those
DiFrisco,
434, 459-73,
See,
ined concerning juror’s questions the questionnaire, and then asked the including open-ended question on penalty, the death an views on juror’s general prosecutor Both the defense the views. question juror freely permitted to each further were then counsel any concern. penalty the other area of regarding death dire, reviewing adequacy of a court assessing In the voir pro jury-selection the effectiveness of the must examine overall Dixon, 223, 243-48, A.2d 125 N.J. 593 266 cess. See State Ramseur, (1991); supra, A.2d 188. That 106 N.J. “yes” typically only simple questions required of the court certain responses perhaps The substantive and or “no” is unavoidable. aspects capital highly complex, case procedural of a are juror’s ability requirements a to adhere to those will assessment questions use of that sometimes call a limited close-ended undertaking specific preferred response. Without a suggest a juror’s questioning, we that the trial review of each are satisfied fairly generally adequate court conducted voir dire elicited concerning prospective jurors on their the views of attitudes re-trial, In penalty. expect the event of we court death principles in accordance articu will conduct voir dire with past court on also take lated in our cases. The retrial should into original specific aspects of the dire that were account the voir 573-76, dissenting colleague. our Post at considered deficient A. 2d at 65-66. Applicability Aggravating c(h)(g) Factor G. supra, 120 N.J. A.2d McDougald, murdering girl charged parents of his
defendant was with factor, felony-murder aggravating The State relied on the friend. theory 2C:ll-3c(4)(g), on the the defendant had N.J.S.A. parents burglary. burglary in the course of The murdered having par allegation was based on the defendant’s entered murdering daughter. home with the intent of their ents’ *56 supported trial the conclu- claimed that the evidence at defendant committing burglary purpose for the the that the had been sion daughter parents, argued and that the murder of the and her appropriаte because the e(4)(g) aggravating factor would not be of the murders burglary would have been incidental to commission felony in the defendant separate than a the course of which rather committed the murders. death sentence on other
Because we reversed the defendant’s grounds, only briefly that claim. We observed that we dealt with either the defen supported alternative theories that the evidence only solely daughter, kill the dant had entered the house to parents; kill or that the defendant afterwards had decided to the very daughter] parents her from the “planned had to kill [the parents] in the course of beginning, [the so that he did not murder 569-70, daughter].” A.2d 419. trying to Id. at [the murder to the although the evidence was sufficient submit We noted jury penalty-phase rehearing, the court should factor to the at a relationship independent carefully instruct the on the felony support and the to the must exist between the murders A.2d 419. c(4)(g) factor. Id. at particularly language McDougald, in the observa- Based on our kill may intended to all the victims tion that the defendant have claims that because the very beginning,” the “from Alexander had theory that defendant and State’s of the case was Bell, court should not planned originally kill both Skov and the to jury, c(4)(g) aggravating factor to the or at have submitted apply factor did not instructed the that that least should have from the killings had been intended if the found that both meaning language counters that the outset. The State only if read in the context of McDougald properly understood is McDougald argument the defendant in advanced. McDougald addressed a agree position. We with State’s c(4)(g) aggravating felony situation in on which which arguably burglary committed to factor was based had been burglary That that could facilitate the commission of a murder. culpability homicides is self- aggravated McDougald’s for the have raises is whether a issue that defendant evident. The narrower c(4)(g) felony planned before commission murder that was defendant was a murder “committed while the can be considered commit, of, attempt flight or commission or an engaged murder, robbery, sexual committing attempting or to commit after assault, arson, kidnapping” required by N.J.S.A. burglary or as c(4)(g) essentially argues that the fac- 2C:ll-3c(4)(g). Defendant the murder be formed while requires that the intent to commit tor commit, commission, flight underlying attempt or from the progress. felony is in logic support argument, either find no for defendant’s
We
Moore,
A.2d
we
supra,
122 N.J.
in our cases.
*57
concerning
c(4)(g)
fac
arguments
the relevance
addressed
underlying felony.
In
sequence
killing
of the
and the
tor of the
penalty
the death
for each of two
that ease the defendant faced
murders,
underlying felony
aggra
each murder was the
and
kill A in
argued, “You either
the
vated the other. The defendant
A,”
killing
but not
killing B
kill B in the course of
course of
or
added).
470-71,
(emphasis
We ob
Id. at
Defendant’s Moore, the defendant’s claim was issues discussed Moore. apply premise e(4)(g) factor should not based on the underlying killing prior of the occurred to commission where c(4)(g) felony. essentially argues that the factor should Defendant apply prior kill is formed to commission of not where the intent to underlying felony. reject contention. In our We defendant’s view, c(4)(g) its Legislature’s adoption of the factor reflected judgment in the course of a considered that murders committed murders, blameworthy irrespective of felony are more than other before, the intent to commit the murder was formеd whether felony. in the during, We find no error or after commission jury. e(4)(g) factor to the trial court’s decision to submit Aggravating Fac- Challenges and Instructions on H. to Notice tors aggrava challenges Defendant the State’s notice of
1. factors, general statutory language ting simply recited the which c(4)(f) factors, applied that c(4)(g) aggravating for the charged in generally the murders the indictment. language Thus, specify not which factor or factors the State the notice did claims prove respect of each murder. Defendant would seek to him adequately to inform of the State’s the notice failed 3:13-4(a). intent. See Rule unfairness to be meritless. De- find defendant’s claim of
We
aggravating
factors
June
counsel received the notice
fense
*58
years
commenced.
before the trial
1991—almost one-and-a-half
prepare
counsel to
purpose of the notice is to enable defense
give
opportunity to
presumably to
counsel sufficient
defense and
arises,
clearly
opportunity
an
clarification if the need
seek
agree with the trial court that
in this case. We also
was available
intended to
reading of the notice indicated that
a fair
respect
murder.
prove
factors in
of each
both
Nonetheless,
have been
specific notice of factors could
a more
application
factors to each murder
provided, specifying the
of the
underlying
as well as the
felonies on which the State intended
practice
factors. That
should be followed the future.
base those
Dixon,
(criticizing
A
supra,
2. Defendant various errors in the trial court’s instruc- jury describing aggravating tion to the the elements of the factor e(4)(g) aggravating description and in the verdict sheet’s of the alleged applied factor as to Alice Skov. The error on the verdict specify only sheet concerned a failure to John Bell’s murder underlying felony aggravate an could be used as Alice Skov’s retrial, murder. In the event of the verdict sheet should be respect. clarified in that address defendant’s concern that the court’s use of the
We phrase improper permitted was because it to be “and/or” felony finding aggravating divided on which was the basis for an factor, statutory requirement unanimity and thus violated the of findings aggravating example, respect for of factors. For Skov, murder of Alice the court instructed the as follows on c(4)(f) factors, c(4)(g) respectively: the elements of the [c(4)(f):] escaping [T]he murder of Alice Skov was committed for the of purpose [defendant]. or confinement for another offense committed trial, punishment That is for the murder of John Donald Bell robbery robbery and/or and/or Alice Skov. [c(4)(g):] [T]he [defendant] offense as to Alice Skov was committed while was engaged flight committing in the commission or an to commit or of, after attempt attempting murder of John Donald Bell of Alice robbery robbery and/or and/or Skov. existed, According argument, possibility to defendant’s for c(4)(f) jurors example, that some could found the factor have they believed the defendant had committed the because murder purpose escaping for the Alice Skov detection murder of e(4)(f) Bell, John while others could have found the factor because
553 escape to detection had killed Alice Skov they believed defendant robbery of Alice Skov. guilt First, jury’s that the unanimous verdicts we think robbery regarding guilty of and murder phase that defendant was jurors possibility that the makes remote at best the each victim aggrava- felony supported each disagreed underlying that on the instance in which Although could Conceiveof an ting factor. one sufficiently distinct underlying be alternative felonies would jurors disagree about whether the defendant to lead occurrence other,-that opposed to the escape for one as had killed to detection dispute the murders and parties did not that this case. The is not events, mur- contemporaneous with the essentially were robberies juror That a could preceding the murder of Skov. of Bell der escape believe, therefore, detec- that defendant murdered Skov of escape for the murder robbery, but not to detection tion for the Bell, implausible. seems potential
Here, allege one of the bases not that defendant does Furthermore, c(4)(f) we invalid. aggravating factor was for the genuine possibility that involves “a this is not a situation find that may as the result of a conviction occur jury confusion or that different jurors concluding the defendant committed that different (9th Echeverry, F.2d 975 Cir. acts.” United States Parker, A.2d 228 1983), supra, N.J. cited in added). plain error in the Accordingly, do not find (emphasis we unanimity required charge was given a that failure to have court’s aggra felony supported the underlying that regarding specific vating factors. finding an
Nonetheless, emphasize that a we agree a unanimous must be based on aggravating factor exists felony underlying on which specific regarding the ment compelled by the central role is finding That conclusion is based. penalty-phase play in the findings aggravating factors retrial, provide Thus, court should in the event verdict. jury’s find- that the sheet that ensure and a verdict instructions *60 ings aggravating agreement factors are based on unanimous regarding underlying felony. the argues specifi
Defendant also
that the court should have
c(4)(f) factor,
cally
jury
respect
in
instructed the
of the
it had
underlying
to determine that
the
felonies had been committed
prior
contemporaneous
applicable
to or
with the
murder. Defen
378, 420,
Hightower,
dant cites State v.
120 N.J.
Defendant contends that the court should have instructed jury mitigating that it could consider as a factor the fact that prison Alexander had received a sentence. Defendant acknowl Gerald, edges 40, supra, that our decision in 113 549 N.J. A.2d rejected addressed and that claim. Defendant asserts that Supreme Dugger, United States Court’s in decision Parker v. 731, 112 (1991), requires U.S. S.Ct. L.Ed.2d 812 that a jury capital in a permitted case be to consider the sentence of a mitigation penalty. defendant’s confederate of the death Gerald, we addressed whether a could consider the sentences of mitigating co-defendants as under the evidence 2C:ll-3c(5)(h). factor, “catch-all” N.J.S.A. first noted that We at trial, penalty-phase the time of the defendant’s his co-defendants concerning pleas but had entered yet been sentenced had not We prison sentences. agreed to recommend the State had which by such been bound a court would not have that because observed sentences had recommendation, the co-defendants’ the term of defendant’s on the deliberated established when not been 101-02, 792. 549 A.2d 113 N.J. sentence. language of significantly, we determined
More
broad,
scope.
Id. at
c(5)(h) factor,
limitless
although
was not
mitigation
consider
permits the
A.2d 792. It
character
relevant to the defendant’s
“[a]ny
factor which is
other
N.J.S.A. 2C:11-
of the offense.”
to the circumstances
or record or
*61
3e(5)(h).
requirement set
a constitutional
language reflected
That
in a
the sentencer
Supreme
that
Court
the United States
forth
“ ‘any
mitigating evidence
as
allowed to consider
capital case be
* * * any
or record and
character
aspect of a defendant’s
”
*
Gerald,
N.J. at
supra, 113
of the offense
circumstances
*.
604,
Ohio,
586,
98
103,
v.
438 U.S.
(quoting
792
Lockett
549 A.2d
(1978)
973,
holding));
2965,
(plurality
2954,
990
57 L.Ed.2d
S.Ct.
303-05,
Carolina,
280,
96 S.Ct.
North
428 U.S.
see also Woodson
(1976)
944,
opinion)
(plurality
2978, 2991,
960-61
49 L.Ed. 2d
of defen
required consideration
Eighth Amendment
(recognizing
offense).
We
and circumstances
and character
dant’s record
require
expanded that
Supreme
had not
that the
Court
observed
or
record
to a defendant’s
unrelated
to include evidence
ment
Gerald,
offense. See
character,
to the circumstances
Lockett, supra, 438
103,
(citing
A.2d 792
at
549
supra, 113 N.J.
holding));
2996,
(plurality
992
608,
557
318-23,
at
111 S.Ct.
therefore flawed. Id.
aggravating factors was
738-40, 112
at 824-27.
L.Ed.2d
holding in
require
to reconsider our
Gerald
Parker does not
us
mitigating
sentencing may not be considered as a
accomplice
Jersey’s death-penal-
hearings under New
penalty-phase
factor
only that the failure
ty
Supreme
Court decided
statute.
finding
the trial court’s
Supreme Court to credit
the Florida
defendant in that case
mitigating
deprived
had
circumstances
sentencing. The
right
Eighth Amendment
to individualized
of his
accomplice’s sentence
of an
did not hold that consideration
Court
constitutionally compelled.
mitigating factor is
as a
Penalty Phase
Improper Comments at
J. Prosecutor’s
hearing,
penalty-phase
During closing arguments at the
special harm that each
repeatedly referred to the
the Prosecutor
the factor ad
addressed as “the evil”
aggravating factor
dressed,
jury
that evil. Defendant
urged the
to address
and also
suggest to the
phrase
potential
had the
to
contends that that
evil,
remedy
rather
penalty
a societal
impose the death
to
that it
appropriate
proved that
it was the.
than because the evidence
of the offense.
the circumstances
for defendant under
sentence
prosecutor’s
invitations
cases make clear that
Our
duty are
sentencing
of societal
guilt
on the basis
jury to decide
See, e.g.,
proceeding.
unacceptable
death-penalty
in a
(1990)
575-76,
(holding
547,
K. Evidence
Factors requests position,
Defendant that the court reexamine its II, 123, 887, Bey supra, first set forth in 112 N.J. 548 A.2d that a jury may support use the same evidence to more than one aggravating question in factor. that case we considered the c(4)(c) e(4)(g) aggravating context of both the factor and the factor brutality generally regarding which addresses concerns murder. concluded: We [T]he resolution is to allow the to use the same evidence in appropriate prosecution seeking aggravating factors, the trial court advises the prove multiple provided aggravating against it should not the number of factors simply compare mitigating considering the number of that it is the same facts more than factors, cognizant being it once, and that should be the same facts are used to prove aggravating more than one factor. This result to consider the permits aggravating giving factor, evidence relevant to each and should it from prevent weight undue to the number of factors when one of the defendant’s conduct aspect aggravating factors. multiple supports
[Id.
887.]
at
548 A.2d
Rose,
analyzed
supra,
in
We further
the issue
the context of
c(4)(f)
c(4)(h)
factor,
here,
factor,
present
also
and the
which
524-27,
killing
public
of a
official.
at
concerns
See
N.J.
adopted
general principle
559 prior depart from our resolu- in defendant’s contentions to basis tion that issue. Sentencing on Murder Convictions Propriety
L.
Consecutive
imposition
of consecu
Defendant claims
the court’s
mandatory
imprisonment
thirty-year
with a
tive sentence of life
sentencing
minimum
Bell
the
for the murder of John
violated
627,
in
N.J.
guidelines
Yarbough,
v.
100
that we set forth
State
denied,
1014, 106
643-44,
(1985),
475
S.Ct.
Defendant’s
transaction
part
of one criminal
the murders
robberies were
Indeed,
the case on which defendant
support
has no
our eases.
(1991),
supports
relies,
A.2d
Rogers,
124 N.J.
virtually
shootings
Rogers
were
opposite conclusion. The
robbery, patrons
ordered to
During
were
simultaneous.
a tavern
off-duty
patrons,
an
sheriffs
lie
the floor.
one
on
When
in the
officer,
gun,
perpetrators
the two
made a
toward his
move
fire,
opened
bar each
hitting that officer
patron.
and another
patrons
defendant,
Both the
died. Id. at
561
merger
approach”
issues
We follow “flexible
and the
elements of the crimes
us to focus on ‘the
“requires
them,’
specific facts of
creating
and on ‘the
Legislature’s intent
”
(1990)
327,
Cole,
321,
v.
120
Applying
principles
merit of
State’s
those
purpose
clear. Once
had been convicted
position is
victim,
of each
knowing murder for the criminal homicide
ful and
felony
“surplusage” because
murder became
his conviction
liability for the homicide committed
imposes criminal
offense
felony
for the homicide
of a
in the event that intent
the course
Stenson,
402,
N.J.Super.
406-
proved. See
be
State v.
cannot
(Law
Div.1980), aff'd,
N.J.Super.
and unlawful
of first-
appropriate
been convicted
had defendant
have been
eight of the
robbery solely
counts
on the basis of
seven
degree
indictment,
a theft
alleged
had committed
which
that defendant
contrary
deadly
bodily injury
weapon,
inflicting
with
while
2C:15-la(l),
Best,
Compare
56, 61-68,
N.J.S.A.
b.
State v.
70 N.J.
(1976) (holding
On the trial court is directed to resentence defendant in accordance foregoing principles. with the Constitutionality N. Jersey New Penalty Death Act
Defendant maintains that
Jersey
the New
death-penalty
statute,
—3f,
N.J.S.A. 2C:ll-3c to
violates both federal and State
protections
constitutional
against
punishment.
cruel and unusual
Const,
Const,
¶
VIII, XIV;
See U.S.
I,
amends.
N.J.
art.
12. This
consistently upheld
Court has
constitutionality
of New Jer
sey’s
statute,
death-penalty
recently DiFrisco,
most
supra, 137
N.J.
645 A .2d
presents
734. Defendant
arguments
no new
impel
See,
Marshall,
us to
e.g.,
reconsider that issue.
State v.
1, 169,
(1991); Ramseur,
123 N.J.
IV murder, felony-murder, affirm convictions for defendant’s We conspiracy, as as defendant’s robbery, weapon-possession, and well thirty-years parole ineligibility for the murder of life with sentence imposed for the the death sentence John Bell. We reverse matter to the trial court of Alice remand the murder Skov. We disposition. proceedings for further consistent with our HANDLER, J., dissenting. concurring and capital a for murder and appeal This is a direct from conviction defendant, County jury A of death. convicted sentence Warren Brown, murders of the Bobby knowing purposeful of Lee the girlfriend, his Alexander. Court aunt and uncle of Coleen inaccuracy and because of the defendant’s death sentence reverses respect to whether inadequacy the court’s instructions with of trial finding “by his conduct.” That committed own the murders were eligible requirement to be considered specific is for murderers essentially on convicted penalty. death Defendant was lover, Alexander. testimony co-perpetrator his Coleen of or or that either Brown Alexander both Little doubt exists Yet, by their there could the murders own conduct. committed be, be, ought doubt about which perhaps indeed considerable charge those by his or her own conduct. Because them murdered evidentiary impact precisely that so an on errors have serious I question, they compel a of defendant’s death sentence. reversal opinion. part in that of the Court’s concur Those include questions. also raises other serious Defendant liability on vicarious theories sufficiency of instructions during murder, death-qualification process adequacy of the dire, jury finding aggravating factors validity on voir trial, prejudicial and irrele- penalty and the introduction determines that the Court evidence. those issues vant bad-act On defendant’s conviction require the reversal of the error does not troubling, I also in the case are Although other issues sentence. *68 564
disagree strongly most disposition the forego- with Court’s and, therefore, ing issues dissent.
I
today
The Court
determines that a trial court commits revers
in failing
ible
jury, during
guilt
error
to instruct the
phase
the
of a
trial,
capital
inability
that
agree unanimously
an
to
on whether a
conduct,
by
itself,
defendant committed
murder
the
his or her own
“constitutes a final
imposition
verdict that
the
results
of a
imprisonment
sentence of
of
thirty-year
at least
mandatory
a
511,
term.” Ante at
reaching
conclusion,
The Court the existence options of three distinct that are respect available with to the own-conduct determination. First, jury may unanimously agree a the that defendant commit by ted the murder Second, his or her own jury may conduct. a unanimously agree that the not defendant did commit the murder Third, his or her own jury may conduct. agree fail to unanimously question. on that Ante at A.2d 33. jury option,
Because this has third the Court must inform jury of its It principle existence. is a fundamental of our capital jurisprudence that, jury option if a has respect an with to particular issue, the determination of jury a must that know it option. See, Ramseur, has e.g., 123, 311, that State v. 106 N.J. (1987) (“To A.2d hide from the full of range its sentencing options ... to goals rationality is mock the consistency required by modern penalty jurisprudence.”). dеath condemn, We will not possibility countenance' the might that a defendant to death having carefully without every considered penalty. might exempt the defendant from circumstance that error Accordingly, trial court in this case committed reversible returning charge option it had the failing having to reach unanimous of murder without valid conviction and, add, issue, failing I agreement on the own-conduct would determination, namely, kind explain significance of that would, eligible be for the death the defendant not in that event *69 penalty. any option respect exists to denies that third with
The dissent
594,
at
This Court of but as equivalent of an “element” a crime as the functional death-penalty phase for the of the “merely triggering a device 99, Gerald, (quoting 792 supra, 113 at 549 A.2d trial.” N.J. (Law Div.1985)). 576, Moore, 561, A.2d 804 N.J.Super. 504 determination, understanding own-conduct accepting that sentencing function of that sensibly gives weight to the the Court happenstance to the only than function —rather determination —its capital Although the phase of trial. guilt its in the of location deliberations, finding during guilt-phase its jury makes its liability for mur consequence for the defendant’s finding has no by or her own der; either his can commit murder a defendant co-conspirator. Ante at conduct, a accomplice, as an or as A.2d at 33. if the of-murder even a can be convicted
Because
conduct,
by
or
own
his
her
not commit the murder
defendant did
as an
co-conspirator
it as a
committed
long
as
as the defendant
say
accomplice, we cannot
that
the own-conduct determination
has,
an
involves
element of the crime of
Legislature
murder. The
however,
profound
invested the own-conduct determination with
implications
penalty, by making ineligible
for the
for death those
conduct,
murderers who do not kill
except
their own
narrow
Court,
N.J.S.A 2C:ll-3c.
circumstances not here relevant.
The
recognizing
finding
that the
signifi
own-conduct
serves a function
determination,
only
penalty
properly
cant
applies penalty-
Ramseur,
supra,
See
106 N.J. at 443-
principles.
determination
(Handler, J., dissenting)
524 A.2d
(recognizing
unique
capital
prosecutions requires uniquely
character
“scrupulous
review).
exacting”
Among penalty-determination
principles is
permissibly
agree
the rule
can
unanimously
fail
on
voiding
the sentence without
proceeding altogether.
today
allowing
Court decides
rule
to return a
sentencing
nonunanimous
requires
permit
verdict
that the
be
respect
ted to return a nonunanimous verdict with
to own-conduct.
(“[T]he procedural consequence
Ante
The flaw the assumption dissent’s is its that if the a option respect factor, has third with to the own-conduct it option have respect must also a third with to the other classes of appear statutory provision murder that in the same the as own- however, majority, requires conduct factor. The notification of
567 nonunanimity issue is option of because the own-conduct the third and, case, in capital sentencing determination this relevant to the may may or liability The same not be is to for murder. irrelevant in a statutory of murder rеspect with to the other classes true given case. significance in much the fact that
The
also invests too
dissent
guilt
in
occurs
determination of the own-conduct issues
capital
recognizes that
formal
phase of the
trial. The Court
prevent
not
phases
capital
does
boundary dividing the
of
trial
having a
effect in the
phase
first
from
substantial
events
Erazo,
112, 138, 594
phase.
v.
126 N.J.
A.2d
later
See State
(1991)
guilt phase
capital
of
(noting that evidence introduced at
jury’s
penalty
inescapable impact on
deliberation
trial has
guilt
into
and
capital
of a
trial
phase).
procedural
The
bifurcation
impermeable
not
cannot create an
wall
penalty phases does
of
Because the own-conduct
phase
between
deliberation.
each
sentence,
only
apply
must
to that
we
determination bears
on
sentencing
function.
principles appropriate
its
determination
guilt
profound
the natures
difference between
application
different stan
requires the
of
penalty determinations
Jersey
replete
is
capital
New
punishment
law of
dards. The
penalty
statutory rules
special
applied
examples
with
of
mandatory
example,
For
this Court conducts
determination.
resulting in a
sentence. N.J.S.A.
capital cases
death
review of
addition,
apply
rules
do not
normal
of evidence
2C:ll-3e.
N.J.S.A 2C:11-
mitigating
information.
to a defendant’s offer
3c(2)(b).
expansive.
is
rules
interpretation
those
The Court’s
(1984).
Davis,
A
A.2d 308
defendant is
N.J.
State v.
non-evidentiary informa
privilege
presenting
also accorded the
Zola, 112
sentencing phase.
jury during
tion to the
(1988).
apply
principles
Different
also
A.2d 1022
N.J.
jurors
example,
For
need not
jury’s sentencing
deliberations.
factor in
mitigating
of a
order
unanimously agree on the existence
*71
Bey,
against any aggravating factors. State v.
weigh
the factor
(1988)
II).
impor-
Most
123, 159-61,
(Bey
Proper instructions on making the manner of the own-conduct finding are crucial here because of the state of the evidence in this case. The infirmities in the own-conduct instruction take effect precisely on key dispute. this case’s factual A juror reasonable pulled could have doubted that trigger —and doubt alone ineligible would render defendant penal- for the death ty. Only testimony Coleen places Alexander’s finger defendant’s trigger. on the accomplice, She was defendant’s and is an habitu- al peculiar The errors clearly impair liar. to this case defendant’s receiving lone, fair chance of juror. the benefit of the doubting The evidence in troubling. this case is way no is “doubt” impossible or irrational.
II The trial court’s failure to instruct properly with respect to its requirement determination of the own-conduct was by failing properly exacerbated its error in to instruct the on accomplice co-conspirator liability. court, The trial in its original charge, failed to instruct the that defendant could be guilty homicides, found of murder if conspired he to commit the even if conduct, he did not commit the murder his own even if he accomplice person was not an who committed the *72 2C:2-6b(4). deliberations, During the homicides. See N.J.S.A. explain between jury asked the court to the difference own- liability liability. The accomplice co-conspirator or conduct and again jury the that defendant be court failed to instruct could and, co-conspirator liability convicted of murder on the basis of further, neglected liability as accomplice to re-define well. dispel jury’s the confusion about two of the
The court’s failure to liability compounded possible preju three theories of murder the respect to its erroneous instructions with dice attributable Curiously, agrees requirement. own-conduct the Court that the instruction, omitting trial court the but concludes that erred of its of death sentence on other because reversal defendant’s grounds, analysis it a of the “need not undertake detañed whether respect prejudiced flawed court’s instructions defendant penalty triggered phase.” that the own-conduct determination disposition I of this Ante at 651A.2d 43. dissent from issue.
Omitting charge co-conspirator accomplice a on and proper liabüity give third-option charge on accentuated the faüure the jury prevented factor. The omission from the own-conduct theory, considering own-conduct adequately the alternatives to the accomplice co-conspirator liabüity, thus in namely, or effect encouraged only remaining theory, subtly jury to choose the eligible. I fail to see how this which rendered defendant death of distinguish can these instances insufficient Court between two instructions, theory, the af- affecting the own-conduct other one theories, prejudice fecting compounds the the vicarious when each jury fading to that it could the other. The effect of instruct the question a permissibly agree not on the own-conduct bolstered assuming finding jury, was of own conduct had form intentional convinced defendant committed some pressure reach a homicide and felt also an understandable Similarly, adequately failure to instruct verdict. conspiracy murder accom-
could convict defendant of under theory indirectly encouraged finding of own conduct. plice
Believing guilty purposely knowingly killing victims, only path, thus had one clear that of own-conduct liability death-eligible option a means to convict defen- —the —as dant of murder. Rhett, are a fair
Correct instructions
essential for
trial. State v.
*73
3, 5,
(1992);
Martin,
2, 15,
127
601A.2d 689
v.
N.J.
State
119 N.J.
(1990);
373, 379,
Concepcion,
v.
111
The by record contains made clear the trial jury court’s decision to allow the to consider all three theories and acknowledged majority opinion, 524-526, in the ante at 651A.2d at 40-41, support any a conviction based on of the three theories liability. charge prevented jury The insufficient from engaging in a balanced and full possible consideration of all of the theories of murder. The trial court’s failure to address the jury wholly jury’s obvious confusion of this renders unreliable the “by finding. his own conduct” exists, evidentiary support
When reasonable
a court must
charge
jury
on the elements of a lesser-included offense. Beck
Alabama,
625, 636-37, 100
2382, 2388,
447 U.S.
S.Ct.
65 L.Ed.2d
(1980);
Saulnier,
199, 206,
401-02
State v.
63 N.J.
Ill
opportunity
on what
forgoes
significant
to elaborate
The Court
qualification
jury,
and on the
adequate
an
death
constitutes
searching
obligation
court’s
to conduct a
importance of the trial
I
condone the Court’s all too
capital
dire in
cases.
cannot
voir
obviously inadequate
qualification.
death
treatment of an
casual
uncritically
perfunctory
majority’s
of the record is
The
review
searching.
It fails to
rather than conscientious and
deferential
exemplified
capital prosecutions
meet the standards for review of
(1988)
Bey, 112
Defendant instances alternates, jurors or both defense as either actual whom sat juror relevant to failed to elicit information counsel and the court receiving vapid making inquire further after no effort to bias jurors Mar questions. The voir dire of responses open-ended Gorzsas, sat on the Christopher both of whom garet Dempsey and respons questioning conducted and jury, representative are jurors. During those her death elicited in the voir dire of six es open-ended Dempsey responded vaguely to the court’s qualification, Ms. que elicited questioning of Mr. Gorzsas Similar stions. case, In defense counsel similarly vague responses.2 Mr. Gorzsas’ questioning. question asked one follow-up some He did conduct finding regarding ability to set aside his related to Mr. Gorzsas’ stage. guilt penalty-trial into the Mr. Gorzsas when he moved him “yes” questioned No one indicated that he could do that. further. juror imperative adequate qualification is an condition
“Because
extraordinary importance
capital-murder prosecution,
for a valid
v.
State
process.”
death-qualification
dire and
attaches to
voir
(1991) (Marshall
I)
Marshall,
1, 220,
123 N.J.
573
by the
guaran
measured
usefulness of the information elicited for
teeing juror impartiality
competency,
providing
and for
coun
grounds
intelligent
sel
challenges.
with
for the
exercise of
See
(1991)
1, 39,
Biegenwald,
(Biegen
State v.
126 N.J.
The
a
guaranteed
to fair and
is
under both
Const,
VI, XIV;
the federal and state constitutions. U.S.
amends.
Const,
1,
Moreover,
para.
protection
N.J.
art.
10.
afforded
Ramseur,
right
heightened
capital
that fundamental
is
in
cases.
84,
Thus,
supra, 106
n.
N.J.
324
Although
grant
degree
a
we
of discretion to trial courts
conducting
qualification
jury,
manner of
the death
State v.
Jackson,
148, 160,
(1964),
43 N.J.
On facts similar to this the Court IV qualification grounds found the death insufficient and for reversal jury impartiality necessary because it offered no assurance of the holding process to fair trial. a voir dire such constituted error, reversible the Court stated: suggestion in that there is “correct” answer colloquy open-ended troubling. Although “what are views on is most the death question your penalty” *76 jumping-off is for death an a point such question undeniably proper open-ended on the in no way the “it circumstances” response qualification, vapid depends probing additional of a views on the reduces the need for venireperson’s appropri- of voir dire not to elicit from ateness of sentence of death. The is the purpose juror’s juror out the views, correct it is to draw the answer; potential potential and the inclinations and to both counsel court the biases, opportunity provide reiterate that voir dire should to assess the demeanor. We proceed venireperson’s object providing of with sufficient
with the conscious
court
counsel alike
jurors
challenge
intelligently
with which to
information
potential
—whether
cause or peremptorily.
N.J. at
[126
172.]
594 A.2d
in
resemblance
qualification
The death
this case bears marked
there,
Here,
Biegenwald
at issue in
IV.
as
voir dire
venirepersons gave moderately
responses
non-committal
pro-forma questions
penal
court’s
about their views on the death
probing follow-up questions.
ty, and
counsel failed to ask
defense
case,
questions
In this
nor counsel asked
neither
court
jurors likely
uncover
the fact
was
whether
that defendant
committing
accused
two murders would affect their delibera
Additionally, they
questioned
any effect the
tions.
were not
about
elderly
might
of the victims
have on their determination.3
status
simply
inquire sufficiently
The
did
“into whether
examination
not
[,
juror
effectively
any
mitigation
consider the
evidence ...
could
denying]
insure
and the trial court the tools with which to
counsel
penalty
jury panel
fairly
that the
could
undertake its role
[at
II,
supra,
A.2d
phase]
this case.” Williams
The voir in this case the minimalist dire Court, emerging capital prosecutions. is in our The hollow, ratifying depends on questioning this form of and the “it responses, dire the circumstances” institutionalizes mode of voir Biegenwald that we The Court thus endorses condemned IV. responses previously inade- acceptability it had declared quate in of a capital the context case. acknowledged using We benefit of have potential hypothetical previously designed out if to draw bias and
questions
predisposition
open-ended questions
Biegenwald
IV,
126 N.J. 172.
See
are
594 A.2d
insufficient.
supra,
majority
accept
proposition
seems to
that the voir dire
participated
ques
was sufficient because defense counsel
in the
tioning. Although
incorporation
questions
of defense counsel’s
help
into those asked
the court
*77
adequately
can
secure an
jury,
qualified
questions
the mere fact that defense counsel asked
adequacy
capital-
does not establish the
of voir dire.
In the
context,
special responsibility
murder
the trial court bears a
IV,
impartial jury,
42,
an
Biegenwald
supra,
ensure
The Court’s
to ensure that a
defendant receives a
by properly qualified jury
overarching
nondelegable.
trial
a
is
It cannot be abandoned to defense counsel. We have stated:
vigor
might
“whatever lack of zealousness and
one
ascribe to
way
in
duty
defense counsel
no
diminishes our
to ensure that
impartial jury.” Biegenwald
is
defendant
sentenced
a fair and
IV,
42,
Only proper
qualification
death
can assure the State and the
preconceived
defendant that the
harbors no
biases and can
apply
determining
follow and
the law in
whether
defendant
extensive,
shall live or die. The failure to conduct an
individual
death-qualification inquiry, notwithstanding
ized
defense counsel’s
it,
request
negates
failure to
that assurance.
Just as a defendant
right
capital
has no
to decide whether he or she is tried for
see,
Koedatich,
death,
e.g.,
murder or
112
sentenced to
State v.
225, 329-32,
(1988),
939
neither a
nor
N.J.
548 A.2d
prerogative
defense counsel has the
to decide whether to death
I,
qualify jury
capital
in
supra,
cases. See Marshall
123 N.J. at
J.,
224,
(Handler,
dissenting).
A.2d
586
85
light Biegenwald
penalty jurisprudence
and our death
IV
proclaiming
importance
qualification,
of effective death
clearly
voir dire in this case was
deficient. The touchstone of our
Biegenwald
jury may
decision in
was that the
have included
IV
Here,
Id. at
A.2d 85.
we cannot
persons.
unqualified
jurors,
impairment of those six
possibly know the extent of the
that resulted
participated
the deliberation
five of whom
gravity of the error inheres
sentence. The
defendant’s death
after a trial
that defendant was condemned
the unreduced risk
qualified jury. The court’s failure to con
improperly
an
before
a trial before a fair and
adequate voir dire and to ensure
duct an
II,
error,
see Williams
irremediable
impartial
constitutes
I,
supra, 1172;
Marshall
N.J.
supra, 113 N.J. at
A.2d
J.,
(Handler,
dissenting),
independent
IV establish, case, prosecution sought to and the In this found, murder aggravating “[t]he factors. The first is that two detection, apprehen- purpose escaping committed for the was *78 sion, trial, for another offense commit- punishment or confinement 2C:ll-3c(4)(f). another.” N.J.S.A by The ted the defendant or offense was committed while “[t]he second is that commit, of, attempt to or engaged in the commission or an was commit, murder, robbery, committing attempting to flight after or arson, N.J.S.A 2C:11- assault, kidnapping.” burglary or sexual 3c(4)(g). jury, the trial court the verdict sheet submitted to the
On c(4)(g) aggravating factor for each victim the presented the following terms: engaged in of while the defendant was the commission
The murder was committed flight committing attempting or after or to commit murder or an to commit attempt added). (emphasis and/or robbery, c(4)(f) presented the factor for each victim as The verdict sheet follows: escaping for the of detection,
The murder was committed purpose apprehension, another offense committed the defendant. or confinement for trial, by punishment clearly the fact that the The verdict sheets failed to communicate underlying agree unanimously particular on some jury had to aggravating factors. felony in order to find those or offense also, jury, instructions to the did not communi- The trial court’s jury agreement on the any cate need for the to reach a unanimous felony underlying aggravating factor in order to find specific an Thus, Skov, respect court that factor. with to Alice the trial c(4)(g) as follows on the factor: instructed engaged in [defendant] was committed while was the offense as Alice Skov flight committing attempting after or of, commission or an to commit attempt of Donald Bell of Alice Skov. murder John robbery and/or robbery and/or added). (emphasis language The trial court used identical for the felonies “and/or” c(4)(f) underlying the factor. ambigu- aggravating instruction on each factor is rendered by term. The use of that term does not
ous
the “and/or”
unanimously agree
jurors
must
on one
communicate that
felony
aggravating
specific predicate
in order for them to find the
communication,
jurors might
a clear
four
have
factor. Absent
finding
robbery
aggravating factor in reliance on a
found an
Bell,
might have found the factor in
while four others
John
Bell,
yet
jurors
while
four other
reliance on the murder
John
robbery
might
the factor in reliance on the
of Alice
have found
approval of the instruction with the inclusive
The Court’s
Skov.
finding
aggravating
by a
expression allows a
factor
“and/or”
Court,
strongly
I
differ with the
and would
thus fractured.
jury raised
the deficient
possibility
not allow the
of a fractured
go
unredressed.
presentation of that critical issue
Parker,
(1991),the
124 N.J.
juror
that all of the
find
and the other not
but
will
one theory proven
рroven
agree
will not
on the same theory.”
(quoting
v.
224
[124
Melendez,
1420,
at
tion is
when
juror
theory proven and the
possibility that a
will find one
able
jurors
agree on the
proven but that all of the
will not
other not
possibility
theory.” 124
The factors contain elements. two First, requires predicate each the commission of a offense. Sec- ond, requires specific each the relationship existence of between differ, though, that offense and the murder. The two factors both predicates in the kinds of offenses that can serve as the requisite relationship nature of the between the offense and the c(4)(f) any murder. The factor allows “offense” to serve as its predicate, by an “another.” N.J.S.A. even offense committed 2C:ll-3c(4)(f). e(4)(g) narrowly The factor much more restricts eligible predicate the class offenses to those committed among defendant and enumerated the factor’s listed felonies. majority The addresses two distinctive elements of each of aggravating though they virtually factors as were identical: jury’s guilt [W]e think that unanimous verdicts that defendant was phase guilty regarding and murder each victim makes remote at best robbery jurors disagreed underlying that the on the each possibility felony supported aggravating Although factor. one could conceive of an instance in which the underlying alternative would be felonies distinct occurrence to lead sufficiently jurors disagree to about whether the defendant had killed to detection for escape one as is not this case. other, opposed [Ante 54.] at 651 A.2d majority any The thus discounts actual difference between Further, aggravating respective elements of the factors. it dis- requirement particularized relationship counts the for a between murder, predicate by finding contempo- offense and the mere Thus, raneity relationship. sufficient establish the the Court states: The did not the murders and robberies were parties dispute essentially preceding with the murder of Bell the murder of events, Skov. contemporaneous juror That a could that defendant murdered believe, therefore, Skov escape detection for the but not to detection for the murder of seems Bell, robbery, escape
implausible. [Ibid.] majority, finally, recognize in fails to this context that the jury’s guilt-phase automatically determinations do not or necessar- ily carry penalty phase оver into the of the trial. courts, justice, “in interests appellate
Rule 2:10-2 allows
the.
*81
brought
attention of the trial
not
plain
notice
error
[to]
justice
of
the interests
court.”
have said that
appellate
We
there
plain
if “in all the circumstances
finding of
error
warrant a
error denied a fair trial
as to whether the
a reasonable doubt
was
Macon,
325,
v.
57 N.J.
on the merits.” State
and a fair decision
(1971).
plain
338,
pointedly,
said that a
error
1
More
we
273 A.2d
doubt as to whether
to raise a reasonable
is “one sufficient
might not have reached.”
jury
it otherwise
led the
to a result
error
error, then,
336,
in an error that
plain
1.
find
at
273 A.2d We
Id.
changed
have
the result.
could
doctrine,
Court,
plain-error
under
applying
The
conventional
purports to
of the record and
independent
an
examination
takes
To
jury would have done.
properly
a
instructed
know what
knowledge, the Court must assume
presume to have such
essentially
fact-finding function.
perform
a
juries in this context
past
That, however,
has in the
is not the case. As this Court
perform a
juries
reaching ultimate verdicts
recognized, our
in
mere fact-
and nuanced than that of
function far more embracive
See,
204,
A.2d 912
e.g.,
Ingenito,
v.
87 N.J.
432
finding.
State
(1979).
191,
(1981);
Simon,
By Legislature our 2C:ll-3c(l). All proceedings. N.J.S.A. capital-sentencing to govern its duty and principles that define of the sentencing phase deliberations, then, apply in full measure guilt jury, bears sentencing jury, like a trial. A of this defendant’s 2C:ll-3e(3). Any N.J.S.A responsibility of decision. the ultimate jury’s sense to diminish the by prosecutor or the court attempt error. Cald- constitutes serious responsibility for the verdict 2633, 320, 86 L.Ed.2d Mississippi, 472 105 S.Ct. v. U.S. well (1985). vastly to death exceeds to sentence a defendant
The decision
difficulty
of ultimate
the determination
and moral
intellectual
518, 553,
Purnell,
601 A.2d
guilt.
126 N.J.
criminal
(1992) (Handler, J., concurring
dissenting). The extraordi-
height-
irreversibility
penalty command a
severity
of the
nary
of our law.
application
principles
degree of care in the
ened
2954,
Ohio,
See,
98 S.Ct.
438 U.S.
e.g., Lockett v.
Ramseur,
(1978);
at
524 A.2d
supra, 106 N.J.
L.Ed.2d 973
sentencing
Thus,
capital
invokes
right
trial
188.
necessary
preserve
than those
protections greater even
by jury
guilt.
the issue of
right to trial
on
courts,
noted, recognize that the
our
as
prosecutions,
In criminal
liability imports a moral
criminal
jury’s
determination of
ultimate
criminal
jury’s determination of
To ensure that the
dimension.
its consideration and assessment
liability
independent and that
is
question of criminal
bearing on the ultimate
relevant matters
of all
jury to take short
permit
not
guilt
comprehensive,
is
we do
*83
reason,
do not
For that
we
its deliberations.
cuts or
abbreviate
fact-finding
supplant
independent
the
estoppel to
allow collateral
necessary
ultimate determination
basis for the
that serves as the
Thus,
vantage
jury
from a fresh
guilt.
a
must consider
of criminal
even
supporting
criminal conviction
guilt
a
point the evidence
jury in
by the
a
previously considered
though that evidence was
In
charging
additional crime.
proceeding
an
separate criminal
safeguard
209,
In
A.2d 912.
order
genito, supra, 87 N.J. at
presumption
charge,
the defendant’s
of innocence on a second
we
jury
require that “the
be instructed in no uncertain terms to
previously
disregard
consider anew the evidence
admitted but to
195,
prior
completely
Ragland, supra,
its
verdict.”
105 N.J. at
imperative
If we
to reconsider evidence in a case in which
separates
guilt
involving
the bifurcation
two
determinations
the
elements,
tending
e.g., Rag
same evidence
to establish the same
land,
1361;
supra,
Ingenito, supra,
To conclude that the of a absence instruction concerning predicate finding aggrava- felonies as a basis for error, ting plain factors does not constitute the Court must First, necessarily assumptions. subscribe to two the Court must jury underlying assume that the did reconsider the evidence Second, that, on predicate felonies. the Court must assume reconsideration, jury unanimously single specific found some felony underlying aggravating predicate each factor. Neither justified. specifically instruct- assumption is The trial court never anew, jury penalty phase being ed the in the to reconsider without determinations, underlying guilt-phase its the evidence bound if on its own possible predicate felonies. And did evidence, way correctly no initiative consider that we have instruction, specific unanimity knowing, in the absence of a wheth- specific predicate felony. unanimously agree did on a er the proper instructions the would cannot assume that with We predicate reached a unanimous determination on each have *84 584 require to know that assumption
felonies. That
would
the Court
juror
any
misgivings about defendant’s
no
harbored
doubts or
misgivings would have had no
guilt, or that such doubts and
juror’s
sentencing
influence on that
ultimate
decision. Numerous
jurisdictions recognize
propriety
allowing a
to consider
determining
a
guilt in
whether to sentence
residual doubts about
Collins,
612,
See,
21
e.g.,
to death.
Andrews v.
F.3d
Cir.1994)
(5th
(Texas);
Jackson,
623,
Stringer
21
v.
862 F.2d
n.
(5th Cir.1988)
1108,
(approving
strategy
arguing
1116
counsel’s
Stringer
jury),
grounds
nom.
residual doubt to
rev’d on other
sub
Black,
222, 112
1130, 117
(1992),
v.
503
S.Ct.
L.Ed.2d 367
U.S.
aff'd
(5th
Wood,
Cir.1992);
modified,
Rupe
F.2d
v.
863
as
979
38
Johnson,
(W.D.Wash.1994);
1315,
F.Supp.
People v.
3
1340
1183,
702, 741-42,
1,
(1992),
14 Cal.Rptr.2d
842 P.2d
40-41
Cal.4th
—
114,
(1993);
U.S.-,
114
We jury’s put decision on whether to a defendant to death. For that reason, even within the framework of substantive standards ex instructions, plained by deny jury a the decisional clear we cannot flexibility lingering and freedom of conscience to consider doubts give weight spares and to those doubts the life of a defendant. 162, 181, 106 1758, 1769, McCree, See Lockhart 476 U.S. S.Ct. (5th (1986); Balkcom, L.Ed.2d 137 Smith v. 660 F.2d 580-81 Cir.1981) law), (applying Georgia cert. denied 459 U.S. (1982). If, recognized by many as S.Ct. L.Ed.2d 148 courts, jury’s guilt properly residual doubts about of murder can weighing aggravating mitigating affect its factors in the decision, jury’s doubts ultimate life-or-death so also can residual guilt underlying felony properly jury’s affect the about of an aggravating dependent of an factor on decision about the existence felony. given opportunity If the is not a real *85 conviction, felony jury supporting reconsider the evidence the the deprived ponder any remaining doubts it will be of the chance to guilt felony. brought in the had about of the When bear factor, doubts, aggravating existence of the those decision on the resolved, although previously may appear jury sharply in a significance light different because of their crucial to the awesome jury impose. sentence the is asked to then, sentencing jury, required to Defendant’s should have been charged reconsider the evidence of the felonies and to deliberate penalty phase in the about the existence of the felonies anew c(4)(f) underlying c(4)(g) aggravating Most im- and factors. portantly, it have instructed to do so unencumbered should been by prior that evidence. its determinations based on anew, jury properly
Even if we assume that the did deliberate whether, in acknowledge way knowing of we must that we have no deliberations, unanimously any possi- jury found of the those during predicate Perhaps doubts latent the first ble felonies. figured substantially in the guilt on criminal more deliberation given on the ultimate sentence the different second deliberation changed Perhaps the portentous purpose of the latter. sentencing capital of affected delibera- deliberative universe Perhaps The possible predicate felonies. not. tions about the whether, knowing way has no point, though, is that this Court deliberations, jurors unani- more extended those new and particular predicate felony. know that mously agreed on some We predicate every juror individually found the existence of some factors; aggravating felony, as a whole found the because necessity of not instructed on the but because the was specific predicate felony, cannot agreement on a we unanimous unanimously agree. did thus know whether fact the therefore, guilt majority, looks in vain to the verdicts concerning penalty guidance support the events of the deliber- simply it to use those verdicts ation. There is none that enables Accordingly, majority’s ratify death sentence. defendant’s verdicts, error, guilt finding plain relying on the fact of the is of no not defensible. plain
I
adhere to the view that the
error doctrine
continue to
I,
Bey
supra,
cases. See
capital
apply
does not
in the review of
(Handler, J., concurring). The
N.J.
at
V jury’s Another reversible error also infects the determination to for the of Alice defendant deserved die murder Skov. alleged aggravating respect State two factors with to John Bell: killing c(4)(g), during a committed the commission of another felony, robbery either the of John Bell the murder and/or and/or Skov; c(4)(f), burglary killing prevent of Alice and a defendant’s robbing robbing killing detection for John Bell Alice and/or and/or alleged parallel aggravating Likewise the State factors Skov. c(4)(g), killing during respect with to Alice Skov: a committed the felony, robbery killing commission of another either the of and/or c(4)(f) Skov; robbery killing Bell the of Alice and John and/or prevent robbery killing detection for the Bell John and/or unanimously robbery the of Alice Skov. The found and/or c(4)(f) factor, however, c(4)(g) killings. the factor in both On the
587 applicable only killing of Alice Skov. the found it Further, predicate felony it the did not indicate on which any aggravating of its determinations. based factor Moore, previously expressed As I in State v. N.J. (1991), subject charged in order for a murder to be to an
A.2d 864
felony,
aggravating
reflecting
of another
factor
the commission
charged
during
probable
murder must arise
the course
and as
(Han
consequence
felony.
other
Id. at
Here, killing of either victim argue did not that the *87 consequence of other. Rather the State probable was a conspired Alexander from argued that defendant and Coleen had victims, by the fact the outset to kill and rob the as is evidenced charged conspiracy to commit the murder that defendant was with Thus, indepen- robbery each murder was and of both victims. jury dently by significantly, the was intended defendant. More consider, determine, nor asked to whether not instructed to I sufficient causal nexus existed between the two murders. aggravating legislative underlying intent factor believe the 588 by charging only
cannot be effectuated
that Alice Skov was killed
during
robbery
the commission of the murder
of John Bell.
and/or
Rather,
aggravating
only
factor could be established
if the
beyond
was able to conclude
a reasonable doubt that her
killing
probable consequence
killing
was a
of either the
and/or
Moore,
robbery
509-10,
Bell.
122
supra,
of John
See
N.J. at
(Handler, J., concurring
dissenting).
A.2d 864
and
fairly
logic
The Court
comments
underlying c(4)(g)
on the
—that
types
blameworthy
certain
of murders are more
than others.
However,
specific logic
statutory
the Court overlooks the
of the
e(4)(g)
blameworthy
construct —that
murders are more
because
they
causally
accompanying
are
related to the commission
anof
felony.
language
contemplates
killing
of the statute
that the
aggravated
greater
is
because of
defendant’s
fault
it
engaged
occurred because the defendant
was
other criminal
that,
law, generated
behavior
under our
a real risk that someone
Moore, supra,
508,
would be killed.
finding of two
circumstances. Since there must be more than one murder
special
allege
alleging
this
circumstance at all,
two
circumstances for a
special
special
double murder
inflates the risk that the
will
improperly
arbitrarily impose
death penalty[.]
(citations omitted).]
[36
Cal.3d
VI arguments agree I that most of defendant’s with with Court error. respect prior bad-act evidence do not establish reversible However, egregious an error in admit- the trial court committed ting Stephen testimony that he showed the eventual Krouch’s beating warning to him about weapon murder to defendant as a Coleen. regarding beating of
Stephen testimоny defendant’s Krouch’s of the wit- during neither elicited cross-examination Coleen was subject placed in it involve a that defendant had ness nor did Rather, testimony prosecutor elicited on issue. was counsel had stren- of Mr. Krouch after defense direct examination during testimony of uously objected questioning that line of Krouch, mother, Krouch. In the case of Mrs. Violet Coleen’s question asking why Mrs. agreed to withdraw the prosecutor told defendant about the rifle. Krouch’s husband had during majority ignores fact that the first heard testimony in the that defendant had beaten Coleen Mr. Kroeh’s Coleen, beating of past. All other references to defendant’s testimony by defense counsel on including own elicited Coleen’s cross-examination, judge had admitted Mr. came after the trial Thus, likely counsel’s testimony. it is that defense Krouch’s strategic testimony about the abuse constituted treatment of later ruling. reaction to that earlier adverse a defensive Moreover, purpose majority of the testi misconstrues According majority, primary purpose mony elicited. Stephen had informed Krouch the evidence was to establish Ante weapon in the Krouch home. the existence of a defendant of however, why Stephen Clearly, explaining 651 A.2dat 45. prov weapon is irrelevant to introduced defendant to the Krouch weapon. defendant to the Such ing that he in fact did introduce abuse, showing spousal is so testimony, reprehensible irrelevant *89 obviously inflammatory prejudicial to defendant that it could possibly admissibility not withstand the test laid out N.J.R.E. 403. suggests subsequent that at a re-trial a court
The Court
should
“carefully
limiting
the evidence and consider a
in
scrutiniz[e]”
Ante
testimony.
should it
to admit the
at
struction
determine
strongly disagree
disposition.
I
VII impugning Defendant’s trial was rife with serious errors reliability of the verdict and death sentence. The court’s instruc- concerning tions the own-conduct determination and the vicarious reliability jury’s murder theories undermine the decision on issues, properly jury those and the court’s failure to instruct the concerning aggravating its deliberations on the render factors insupportable generally, the sentence of death. More the case many ways fallibility reveals in of our current efforts to prosecute capital capital punishment. cases and enforce problems judicial that afflict capital administration of punishment problems are endemic. Those are intractable be- cause, believe, capital punishment I we seek to administer under a judicial regime firmly that is fixed on a foundation of constitutional process due and fundamental fairness. death, beginning experiment of our with we have
From the having guilt a inherent confronted the unresolvable dilemma that, by very by death-qualified a determination made in the direction process qualification, death conditioned becomes Ramseur, 428-35, A.2d supra, guilt. 106 N.J. I, J., (Handler, reviewed the dissenting). Court Marshall pitfalls experienced made all of judgment qualification. The defendant surrounding process of death death-qualified jury indeed, inadequately guilty by an was found — all, alleg death-qualify at that defense counsel declined to any “strategy” avoiding to the death edly pursuing a reference strategy, acceptance of that trial penalty. I noted that the Court’s *90 the repeated references to death rested on the notion that which jury likely predis to qualifying were penalty in the course of the guilt, confirmed pose jury a belief in the defendant’s the toward jury a process death-qualification biases premise the of the conviction. toward (1991) 187-90, A.2d 624 Perry, 124 N.J. 590
In State v.
Erazo,
J.,
(Handler,
concurring
dissenting), State
N.J.
and
v.
(1991) (Handler, J.,
142-50,
concurring
and
respect options to its available concerning determinations that penultimate were critical to the eligibility issue of death but not to guilt. subjected issue of Defendant was guilt-phase to a (1) charge that jury by inadequately confused the defining the (2) offense, death-eligible failed to inform the that it could disagree underlying about the guilt (by basis of his own conduct or aecomplice/co-conspirator) producing thus potentially a coercive (3) deliberation, influence jury’s over the gave inadequate an instruction for one findings conduct, of the alternative to own (4) namely, co-conspiracy, and protection debilitated the afforded by “beyond reasonable doubt” standard incor- rectly informing agree that it theory beyond must on one a reasonable doubt instead of instructing only finding own conduct beyond need be unanimous and a reasonable doubt.
Those very stage errors occurred at the at which guilt-phase penalty-trial, bleeds into the insofar as the “own-conduct” determi- nation must be ostensibly made during guilt phase, but possesses only penalty implications. To the extent that logic some *91 justifies guilt bifurcation of penalty proceedings, and it rests on the presumption that different evaluative norms implicated are at stages, the different warranting thus different rules. The “own- finding conduct” blurs the distinctions and because of that blur- ring, an unprotected creates in area which a experi- ences the of both Bobby worlds. I think Lee Brown is that worsts defendant. essence, jury given a enough qualification prejudice death to guilt
its enough determination but not adequately qualify to it to impartially decide life or death as an ultimate sentence sat without proper guidance judgment issue, conduct, on an own that serves De- death-eligible non-death-eligible from crimes. distinguish to that made Marshall’s endured all the errors Robert fendant thus worse, moment in troubling. But he endured them at the case so basically a to make is guilt phase when the is asked what the having proce- sentencing benefit of determination without imposed penalty trial. protections at the dural again tangle our doctrinal that ensnares This case shows jurisprudence. administration capital murder We continue confusion, struggle contra- free ourselves from of this law to valiantly vainly identify, diction, try but and arbitrariness. We define, guiding rules so that intelligible principles and follow consistency, even- with capital prosecutions can be conducted objective handedness, have justice. The that we and fundamental punish criminal defendant with death— for ourselves —to set capital prosecutions be conducted categorically demands that process. and constitutional due very highest levels of fairness case, unfortunately, exemplifies again our demon- failure —it This administra- arbitrariness beset the the confusion and strates capital to seek the justice in seem determined tion of causes. We give up equally determined not to punishment, but we are ultimate experience teaching us that protections. Our is our constitutional luxury sentencing crimi- have both —the retributive we cannot and the glory process of due constitutional nals to death rule of law.
O’HERN, J., dissenting part. majority’s position principles of consti- disagree
I with require jury be that a statutory construction tutional law guilt in the may non-unanimous verdict that it return a instructed capital ease. phase of
I system American of criminal by jury Trial is fundamental and, exceptions, justice. “the with occasional It is normal major fact” in criminal issues of disposing mode of preferable *92 594 States, 276, 312,
cases.
253,
Patton v. United
281 U.S.
50 S.Ct.
854,
(1930).
74 L.Ed.
870
by
“[The] intrinsic value of trial
jury
public
Dunne,
has earned
confidence over time.” State v.
124
(1991).
303, 318,
N.J.
Consistent with that I believe that allow- ing, requiring, juries much less to consider the return of non- guilt phase unanimous verdicts in the capital of a wrong. case is “by Court reasons that the [one’s] own conduct” factor capital ease is not an essential element of capital the crime of may murder and thus effect though be treated as it were an aggravating factor in sentencing phase. 510-511, Ante at A.2d at sentencing phase case, 32-33. capital of a statutorily is authorized to return a non-unanimous verdict. 2C:ll-3c(3)(c). N.J.S.A being
Aside from
an internal contradiction
prece
with its own
(in
Koedatich,
dent
524-28,
State v.
118 N.J.
II In reaching conclusion, its majority capital reasons that murder does not exist under only the Code—there is murder —and *93 capital sentencing in N.J.S.A 2C:ll-3e qualifications the for that capital of a offense of murder. not essential elements defined are disagree. I may makes that before a defendant structure clear Code’s sentence, the capital a a must first have determined
receive phase the committed the murder guilt of the trial that conduct,” through promise” “payment or “by actor’s] own or [the value, trafficking of anything or as a “leader a narcotics of of implications of the the network.” N.J.S.A. 2C:ll-3c. Consider factor, last the of the majority’s context of the leader thesis the network, “drug kingpin.” I nareotics-traffieking the so-called murder, involving suspect drug-kingpin prosecutions in most that kingpin underlying charge with the the State will the accused of indictment. Must the offense in another count the substantive may capital- it non-unanimous on the jury be instructed that be kingpin must on the count? murder count but that it be unanimous Must a be told payment-of-value the factor. Consider also presence on the of may it return non-unanimous verdict a factor? I think not. (that could receive a one who hires killer not That conclusion hiring) leads me to believe on that issue of non-unanimous verdict anything death-triggering are but suggest that the factors logical. capital not the crime of murder is the essential elements of murder, capital presence the or absence elements of As essential guilt unanimously in the determined of those factors must be Governing Practice Rules Criminal capital case. Our phase 3:7-3(b) requires that an indictment for contemplate no less. Rule specify murder shall whether (1) alleged: his or own conduct to have act her by
the defendant is committed (2) or of of the offense payment promise or to have the commission by procured (3) drug trafficking anything to be leader of a of value or of payment, pecuniary * * * * or *, of a commanded in furtherance *, who, conspiracy network of the offense. threat or solicited the commission promise point makes clear. The Code (2) (1) such attendant circum- means such conduct or “Element of an offense” (3) as such result conduct stances (a) Is included in the forbidden conduct in the definition оf description [or] offense; * * (b) *. Establishes kind of culpability required [N.J.S.A. 2C:l-14h.] Each of required the 2C:ll-3c factors “[e]stablishes kind of culpability” Hence, capital sentencing. because those factors offense,” ibid., are they “[e]lement[s] essential of an must be unanimously phase guilt capital resolved in the case.
Ill
*94
presence
The determination
the
guilt
of
of
those elements
the
phase
capital
of
analogous
pre-Code finding
a
case is
to a
of first-
degree
pre-Code law,
murder. Under
murder was divided into
degrees
part
early
two
as
an
mitigate
of
reform to
the death
penalty. First-degree
willful,
murder
was characterized
the
deliberate,
premeditated
killing.
and
nature of the
N.J.S.A.
2A:113-2,
95,
1978,
repealed by A.
c.
“All
N.J.S.A. 2C:98-2.
other
presumptively
murders
degree”
were
of the second
and such
subject
defendants
penalty.
were therefore not
to the death
State
Gerald,
40, 71-72,
(1988).
v.
113 N.J.
regard weighing aggravating of mitigating factors at penalty phase corresponding allowing have effect of
597 guilt on or innocence of jury to a non-unanimous verdict return first-degree capital murder? agree guilt unable to on the
I have
no
in which
found
case
eligibility
establishing death
degree
of murder
or innocence
reached,
might
though
had
have
not dismissed even
it
was
reached,
degree
lesser
of murder. Such non-
a verdict on a
higher
a bar to a
degree does not constitute
unanimity on the
Booker,
count.
v.
first-degree
for the
retrial of a defendant
(1982),
majority
302,
rule.
jury charge this case have been jury requires a be in- incorrectly Nothing state law. capital- a may a non-unanimous verdict on that it return structed charge not have clear I am did murder count. satisfied unjust 2:10-2. A bring See Rule capacity to about an result. non-unanimous ver- charge not authorize capital-murder should phase capital guilt of a ease. dicts maintaining forget, of often, have stated so [W]e never as we importance must criminal-justice jury, for Tidal reasons confidence in our system. by public’s It that confidence. is one of the foundations of tradition, rooted in our history trust in the verdict of trust in the common man, is a not because simply foundation attaining has as the best vehicle of one’s but because it itself proven peers, jury; justice. we trial simply surrender to no clamor when we by We protect ages of of thousands of and benefit from experience the wisdom the accept judges over hundreds who continue to marvel the consistent years soundness jury verdicts.
[Dunne, 1144.] 590 A.2d N.J. at supra, capital-murder on the verdict count was sound. Had any member of the entertained a reasonable doubt toas conduct, guilt defendant’s murder his own would hung have been new trial defendant. afforded joins opinion. GARIBALDI in this Justice For O’HERN and GARIBALDI —2. affirmance —Justices For reversal—Justice HANDLER —1. part,
For part reversal in and remandment— affirmance WILENTZ, CLIFFORD, Chief Justice and Justices POLLOCK and STEIN —4.
Argued September 1994 Decided December 1994.