*1
O’HERN, J. capital jury murder case. A has found defendant John This is a guilty murdering companion his former in order to obtain Chew of Major appeal in proceeds insurance on her life. issues raised his (1) factor, statutory aggravating are: whether the N.J.S.A 2C:11- c(4)(d), death-eligible a “murder as consideration which makes anything receipt, expectation receipt for the or in of of value,” killings pecuniary only killings covers contract and not (2) by police proceeds; insurance whether statements taken obtain attorney asked for an were admitted after defendant had (3) rights; and defendant violation of his constitutional whether right jury consider the non- was denied his fair-trial to have the addition, accomplice. In capital verdict of murder as an require of asserts that various other trial errors reversal his conviction. c(4)(d) (1) killing does cover a find that N.J.S.A 2C:11-3
We (2) proceeds; that after defendant had invoked obtain insurance counsel, right he his to remain silent and to have assistance of police voluntarily further with and waived initiated conversation privilege protections of the Fifth Amendment and state (3) self-incrimination; correctly charged against that the court capital murder it jury order to convict defendant unanimously agree had committed the must that defendant alone errors taint by his own conduct No other trial murder affirm capital murder and the and we the conviction verdict proportionality conduct review sentence of death. We will proceedings. defendant’s sentence later
I 13, 1993, January approximately police found At 9:00 a.m. on body in the driver’s seat a Corvette of Theresa Bowman Woodbridge parked parking lot of the Hilton. in the rear of the ten hours. Her throat approximately Ms. Bowman had been dead body piece paper *11 was a of with had been slashed. Found with Martin” written on beeper a number and the name “Joe Newark it. Mystic registered The
The was to John Chew Isle. Corvette police up appointment to meet at contacted Chew and set an Chew, to-meeting afternoon. Prior with Chew’s residence that Mecalco, Alejandro Woodbridge police a chef interviewed “grabbing” a Hilton. stated that he had seen a man Mecalco face, having “a woman in the car. He described the man as round mustache, hair, beard, eyes, full and fine combed.” A dark well Kenny appearance man in to police depicted sketch this as similar contemporary reсording police A had Rogers, a artist. officer who Woodbridge night patrolled parking Hilton lot that stated that car, persons in one of had blond hair. he saw two whom p.m. on police arrived at Chew’s residence at 4:10 When January “unkempt.” did a appeared Chew Chew not have provided by He description Mecalco. beard and did not match wobbly gait. pain police Chew told the was and exhibited a injuries resulting fall he from recent while had back and foot working During meeting, police a roofer. this obtained setting non-custodial and infor- Chew’s first statement. was approximately min- spoke police fifteen mal. Chew with on that he had last seen Ms. Bowman utes. Chew said 12, 1993, Woodbridge evening January when she left for paycheck her check pick up restaurant to to cover overdrawn pain buy medication for Chew. that she had used statement, According to first both Ms. and defen- this Bowman sister, Charette, Crystal and dant drove to the home of Chew’s subsequently Theresa drove off alone defendant’s Corvette. Crystal. had loaned his second car to Chew claimed that John left, Crystal’s Crystal after Theresa he remained at home with and roommate, Borden, her Helen for an hour-and-a-half before both women drove him home. left, police Crystal’s speak
After the Chew drove to home Crystal with Helen. that he about to and Chew told them be drug something blamed for that he did not do. He said that a deal had turned bad and that he needed an alibi. He asked them police they evening to tell visited him on the had January evening. 12 and had remained at his home the entire They agreed. 14,1993,
Shortly midnight January Woodbridge Detec- after Kerwin, Geoffrey investigator in mur- tive the lead the Bowman der, Crystal Crystal’s interviewed Helen at home. At that meeting, Crystal and Helen corroborated Chew’s first statement. early January again In the afternoon of Detective Kerwin request an interview and to obtain consent to take visited Chew samples Although to search home and car. blood Chew’s custody, signed rights prior to the interview. Chew waiver *12 statement, repeated story he had told taped In a brief Chew the 13, police January provided on and information about his the January relationship The had met in with Ms. Bowman. two twenty-three twenty-four, Theresa was and Chew was when years working a about twelve older. Chew then was roofer 1989, they living together. the installing shingling. By were At murder, couple Mystic in Island. time of the the lived search, investigators the traveled with Upon completion formal, taped Crystal’s obtained state- defendant to home and exculpated Crystal taped statements ments from and Helen. Chew. 15, 1993, of calls January police the received a number
On of Theresa Bowman: Chew suggesting a motive for the murder $250,000 Ms. beneficiary policy insurance on Bow- the of a was the salesman life. The call was from life insurance man’s first joint in 1991. policy sold a to John and Therеsa who had murder, Eve, days Year’s thirteen before the On New and he wanted stopped agent’s at the home stated that to Chew premium in had bounced pay December’s cash because his check lapse. calling policy After his office and he did want the options, finally accepted suggesting payment agent the a and other directly money No had ever come to the order. customer before agent’s home with cash. Tilton, Chew, employee reported that
George former in $10,000 had him to kill Ms. Bowman. Tilton 1991 Chew offered to collect police that Chew wanted victim dead told proceeds. proposed Tilton testified that Chew insurance conspiracy repeatedly between June and November 1991. son, Chew, phoned caller who
The third was Chew’s Robert Jail, County serving police from the where he was Ocean sentence for a number of crimes. Robert Chew claimed him life December Chew had told about the mutual insur- policy plan and to kill Ms. Bowman for ance about proceeds. F., mechanic,
Randy provided piece Linden another Randy F. puzzle. met Theresa November while John was They spoke leaving in Florida. an affair and she commenced planned Randy F. Theresa leave Chew. believed that 13, 1993, January move in with him after and on Chew received money from a of an After settlement unrelated lawsuit. settlement, give Ms. of his cars Chew was to Bowman one $10,000. Randy phoned January F. that Theresa him on testified driving 12 and said that she and Chew were to a location up Parkway pick State Chew’s settlement check Garden $28,000. amount
Thus, specific why the State acted had a reason for Chew going he did: the fear that Ms. Bowman to leave and when *13 might policy. that Theresa discontinue life In insurance morning January police left for Chew’s residence to place him under arrest. police
Chew’s mother met the at the door and informed them sleeping. that he was Police roused Chew and Detective Kerwin placed defendant under arrest. bring Chew asked the officers to pain. medicine for his leaving, back As defendant was custody police, he phone attorney, asked his mother to his Stephen Secare. investigators
Another team of went to defendant’s sister’s home. statements, In the first of Crystal several additional said that John had night called her from his home on the of the murder and pick up Woodbridge asked her to him from the Hilton later that night. Crystal said that John told her that he and Theresa were going pick up paycheck work, place Theresa’s from her and although immediately, defendant wanted to return Theresa stay intended to with friends.
Crystal parking p.m. arrived at the hotel lot at about 9:20 She Corvette, spotted a but she was not sure whether it her closer, Crystal brother’s car. moved her car and saw defendant get injured, out of the Corvette. He was not but there was blood Crystal having on his clothes. any denied asked her brother questions happened. about what had clothes, put plastic bag,
Defendant removed his outer them in a (who accompanied Crystal) pour and instructed Helen had bag. bag already bleach into the and bleach were the car. Crystal seeing dumped bag denied a knife. Defendant con- taining Crystal police the bloodied clothes. told the that after home, returning police to Chew’s he told her what to tell the quiet. threatened her to remain story.
Helen told much the she Borden same She said that thought heard a “scream” she came from the Corvette. later, running About a minute defendant came out of the Corvette got into the car. *14 Helen, brought to the Ocean Crystal, and defendant were questioned Crystal and Helen were County Office. Prosecutor’s a a room for placed was different and defendant separately (lie-detector) his given medication polygraph test. He pain. back inculpatory statements confronting defendant with the
After his Miranda Helen, read Crystal and Detective Kerwin defendant interrogation day at began about warnings and the first statement, taped but agreed provide to a a.m. Defendant 10:53 taped sign Miranda card and insisted that refused to taped murder. Defendant’s statement not discuss the statement acknowledged that his sister merely him at the scene and placed Woodbridge Hilton from the Helen had driven him home evening. concluded, provided defendant taped statement
After retelling, In of the events. this police more detailed version with gone had to he and Ms. Bowman Wood- defendant stated that drug Ms. bridge January complete to deal. “Joe,” only she knew was to handle the deal because Bowman he drug stated that had waited inside other dealer. Defendant the car and found Ms. Bowman Hilton. Defendant returned to murdered. morning interrogation conclud- had
About 30 minutes after ed, granted permission to his requested and was call defendant Secare, Mr. attorney, Stephen Secare. Defendant did locate All only answering questioning of defen- but machine. reached dant ceased. Woodbridge to Police Station. then took defendant
Police and concern that Allegedly due to defendant’s back condition suicidal, might handcuffed defendant to a be Kerwin defendant jail him in a cell. place in an office than At cushioned chair rather formally charged Defen- p.m., with murder. 4:00 defendant was pain, again given again complained his back and was dant about later, speak with asked About two hours medication. Kerwin. crying
Defendant was when entered room. Accord- Kerwin Kerwin, ing facing.” I “[w]hat defendant asked am Kerwin did penalty, might not mention the told death but defendant that he thirty years prison. potential face or more Kerwin also outlined began lesser sentences. Defendant then to talk. deal, again spoke acknowledging
Chew of a cocaine this time that Ms. Bowman was alive when he had returned from the Hilton began argue to the and defendant after *15 Corvette. She Bowman “ripped by buyer. claimed she was off’ When Theresa told having Randy, John she was sex with defendant said that he “went off’ on her. stopped point,
Detective Kerwin defendant at that called in readministered the Miranda detective, warnings, another and had sign p.m., him a waiver. Between 6:13 and 6:24 Kerwin obtained a taped second statement. statement, again acknowledged driving
In this defendant to the Woodbridge night January Hilton with Ms. Bowman on the of 12. trip purpose He stated that the of the was to sell a kilo of cocaine (Chew’s purchased that defendant had while Florida. brother Chew) (also named Robert later testified that while he and Florida, defendant defendant him a kilo of cocaine were showed sell.) bringing Jersey he back to that defendant said was New story, prospective inAs the earlier defendant did not know the buyer Ms. contact. because he was Bowman’s defendant,
According stayed in while Ms. Bowman the car waiting buyer, doorway went to wait in the defendant anyone get into After the Hilton. He never saw the Corvette. minutes, approximately forty-five defendant returned to the car. version, car, In this when defendant returned to the Ms. Bowman did meet was still alive. She told defendant that the contact her couple argument. got ripped “she off.” The had an Ms. but couple hit “a face” and [the] Bowman defendant times having him in remember scratched the chin. Defendant did not stabbed Ms. Bowman. Bowman, left his Corvette fighting with Ms.
After Helen, waiting nearby in other his Crystal who were and met up and Ms. pick him because he asked them to car. Defendant gave for a while after defendant going separate Bowman were $10,000 $25,000 expected from the proceeds Bowman Ms. feeling very frightened be- drug deal. Defendant remembered just repeated over.” Defendant blood all cause “[t]here committed the murder. he not know whether he did disposing changing his clothes and did remember Defendant dumpster. Defendant also remembered his clothes in bloodied police not to tell the about the events begging his sister and Helen them, threatening evening. He but acknowl- did not recall I edged much don’t remember.” that "there’s so statement, processed for providing
After his defendant was County Adult Correction Center. While transfer to the Middlesex officials, including there, correctional defendant met with two registered institution. Both employed nurse the correctional hearing did for the State at the Miranda that defendant testified stress, any drugs or undue the influence of seem to be under appeared cooperative. but rather calm and charged purposeful knowing grand jury A defendant with *16 (a knife) conduct, weapon possession of a for by murder his own thrеats, offenses, purpose, terroristic and other unlawful here, prosecu- later dismissed. The which the trial court relevant aggravating of factor: that defendant killed tor served notice one receipt, expecta- for the or Theresa Bowman as consideration anything pecuniary receipt of of of value. N.J.S.A. tion the c(4)(d). 2C:11-3 aggravating the factor. The trial
Defendant moved to dismiss
Chew,
N.J.Super.
denied
motion. State v.
court
defendant’s
(Law Div.1994).
391,
aggravating
wider committed for interpretation purpose insurance benefits. [Id. 124.] 651 A.2d Appellate Division defendant’s motion for leave The denied aggravating appeal denial of his motion to dismiss the factor. police. suppress also moved to his statements to the Defendant hearing, granted part a Miranda Following the court and suppress. part motion to The court found denied defendant’s day at 10:53 a.m. on the that defendant’s first custodial statement his Fifth in violation of Amend- of the arrest had been obtained right suppressed at But the to counsel and should be trial. ment voluntarily the second found that defendant had initiated court statement, p.m., the second made after 6:00 and that custodial so as to be sufficiently removed from the first statement was against defendant at trial. admissible 13, 1995, jury guilty returned a verdict On June knowing remaining purposeful murder defen counts: or two a(1) (2), conduct, in violation N.J.S.A 2C:11-3 dant’s own purpose, in violation of weapon for an unlawful possession of 2C:39-4 d. N.J.S.A penalty-phase place trial between June 19 June
The took evidence, any present but the did not new 1995. State parole board eight A member of called witnesses. defense thirty years sentence for murder was that the alternative testified family mem- imprisonment. A social worker interviewed forensic family history family described a recоrds. She bers and reviewed *17 unfaithfulness, abuse, of binges, and lack love drinking beatings, of simi- encouragement. mother and sister testified Defendant’s larly. of eleven-year-old daughter spoke her love
Defendant’s Valerie family A therapist him. for father and of her contacts with her contacts with her father would concluded that Valerie’s continued enjoyed positive two of them a positive have a effect and gave sought he relationship. Defendant an allocution which daughter. of mercy for the sake his jury unanimously beyond a doubt found and reasonable The receipt any guilty expectation of of of murder thing jury The also of the pecuniary of value. found existence factor, c(5)(h), mitigating N.J.S.A catch-all 2C:11-3 and credited jury mitigating factors raised defendant. The each of ten unanimously beyond single a reasonable doubt found aggravating outweighed mitigating factor all factors found. penalty jury and the court sen
The returned a death verdict merged weapons conviction tenced defendant to death. It directly appealed this with the murder conviction. Defendant 2:2-1(a)(3). R. file a right. of We allowed the State to Court as of certain rulings. did file cross-appeal evidentiary Defendant reply a brief.
II
obtaining
killing
killing
“as
Is
committed
of
insurance
purpose
proceeds
anything
or in
consideration for the
receipt
receipt,
expectation
value”?
pecuniary
statutory
capital-sentencing
aggravating
factors in our
guide
death-eligible
scheme
the class of
murderers
narrow
appropriateness
jury’s
determining a death
discretion
Ramseur,
123, 185-86,
51
v.
examples
Familiar
of the
are found in State
tor.1
two factors
(DiFrisco
DiFrisco,
(1994)
II),
434,
137
cert.
Among jurisdictions, killing pecuniary other most for is the statutory frequently employed aggravating Raymond factor. J. Pascucci, Capital Abandoning Punishment the Pursuit 1984: (1984). 1129, 1227 Consistency, Fairness and 69 Cornell L.Rev. of When, 1982, Jersey adoption Legislature debated the the New Act, already many jurisdictions of the other had defined special aggravating of minder financial circumstance or factor for 1978, gain establishing eligibility. In a California voters’ death special had limited to initiative amended a circumstance that been guns eligibility “[t]he when murder was hired create death People gain.” Bigelow, for intentional and carried out financial 731, 750, 328, 339, 994, Cal.Rptr. 1005 209 691 P.2d 37 Cal.3d history legislative guide The had no it in Bigelow court financial-gain special Con- the construction of the circumstance. overlap language cerned that new would create between financial-gain felony that of murder sрecial circumstance and (since robberies, burglaries, kidnappings most are committed gain), It for financial the court reviewed decisions elsewhere. aggravating factor of had construed an observed Nebraska pecuniary gain apply: murder for (3) (1) (2) gun, gun, hirers of to murder motivated to the hired to the gain primarily by pecuniary of a murder insured for as in the case of an desire convenience, Jersey penalty to the New death For we abbreviate citations act. c(4)(d) provides: aggravating factor The receipt, or the murder as consideration The defendant committed receipt anything pecuniary expectation value. of of c(4)(e) provides: aggravating The factor by payment promise procured offense or the commission of the anything pecuniary payment value. obtaining the proceeds, of a life insurance for the
the beneficiary
policy
purpose
legatee
legacy or a
devise.
of a testator of a
or devisee to secure
murder
(citing
197 Neb.
Rust,
at 1006
State v.
[Id.
751,
340,
at
P.2d
209 Cal.Rptr.
874, cert.
Of gun procures gun.2 For the hired or the one who hired Pennsylvania’s recognizes ag- example, death-penalty statute only gravating “killing for “[the] of hire” when defendant factor paid person pay or or be paid or was another had contracted to pay paid by paid by person conspired or or be another had to person killing 42 for the of the victim.” Pa. Cons.Stat. another 9711(d)(2) 473, (1996); Burgos, § 530 Pa. Ann. Commonwealth v. (1992). every jurisdiction 11 A.2d almost that has consid- 610 But gain applied the broadly-worded pecuniary a factor has factor ered proceeds. killings to to insurance collect Jersey of language Arizona the identical the New law contains 13-703(F)(5) (1996) § (making aggravating factor. Ariz.Rev.Stat. death-eligible killing receipt, or in a “as consideration for value”). receipt, something pecuniary of expectation of the of gain” “pecuniary factor when Arizona allows the gain if of ... for the murder. For hope pecuniary provide[s] impetus example, gain life a killed an insured order to of a insurance beneficiary proceeds aggravating be On other hand, this circumstance would satisfied. policy goal of or that was not in furtherance the defendant’s accidental death unexpected 2 Eighth Rosen, Richard A. Murder and the Amendment Jurisprudence Felony of 163.095(1)(a) (1990) § (citing 73 Death, 1103, 31 B.C. L.Rev. 1170 n. Or.Rev.Stat. (b) (1987) (defendant hire); killer to murder for 42 hired or solicited another 9711(d)(2) (Purdon (defendant Supp.1989) § & 1982 Pa. Cons.Stat. Ann. paid kill); (defendant 18.2-31(b) (1988) § to or was to Va.Code Ann. hired paid killer 10.95.020(4) (5) another); (Supp.1989) § Wash. Rev.Code Ann. kill by (defendant agreement committed murder receive for pursuant money murder)). killing offering for pay
53 during flight gain, a course of or from does robbery, of which occurs pecuniaiy finding aggravating circum- not basis for the same in itself sufficient provide aggravating [where the committed the offense stance. The circumstance anything of as for or in the of of consideration the receipt, receipt, expectation where the value] should be found those cases murder only part pecuniary gain, goal occurs overall when death merely defendant’s pecuniary during which time the defendant benefited financially. 1143, 105 P.2d 471 [State 235, denied, v. 143Ariz. cert. U.S. Nash, 392, 222, (1985).] 2689, 86 L.Ed.2d706 S.Ct killing for early found that a As Arizona had satisfy aggravating purpose obtaining insurance would circumstance, although the court did not find sufficient evidence Madsen, 346, 609 satisfy State v. 125 Ariz. the case to the factor. (en denied, banc), 101 S.Ct. P.2d 1046 cert. U.S. (1980). L.Ed.2d 93 its special concluded that circumstance “murder
Florida has
to obtain insurance
gain” applies
person
kills
financial
when
(Fla.1981),
denied,
State,
cert.
proceeds. Zeigler v.
The later would write: gain” of capital with the evolution the “pecuniaiy concept familiar Anyone aggravating litigation circumstance the is aware that this around country murder designed Rather, for to the armed murder. robbery capital application killing language is or, called, as it sometimes the the hired this contemplates might a to also to murder motivated desire collect by It a contract murder. apply aggravating [the factor] to would be life Such an approach insurance proceeds. usage grammatical the idea the words with correct of employed consistent with jury’s aggravating to the attention are intended focus upon that circumstances thought act is murder to it a more than of a murder render reprehensible aspects perse. (Miss.) (Robertson, concurring), cert. J., 358 State, v. 484 So.2d [Wiley (1986), on overruled other 93 L.Ed.2d denied, 479 U.S. S.Ct (Miss.1991).]
grounds
State,
Even we to that the word “consideration” is limited were contract, disagree of a that to the notion we the sentence structure depends signals “expectation receipt” that of clause “consideration.” The two clauses are distinct. There no word c(4)(d) history suggestion legislative in the is the factor c(4)(e) procuring eligible of death twin factor that makes one procures payment of who the commission murder or payment anything pecuniary promise of value. Penalty Act
The Federal Death Federal Controlled aggravating capital for determining Act contain factors Substance (list- 848(n) 3592(c)(8); § § punishment. See 18 U.S.C. U.S.C. factors). aggravating ing Both federal acts contain the identical c(4)(d) Walker, language factor. In found our United States v. (N.D.N.Y.1995), sought F.Supp. 837 to bar the gain killing pecuniary use of factor cover a obtain drug deal.3 The proceeds of court observed the federal prongs: factor had two the offense was committed “as “in receipt” expectation receipt” for consideration It something pecuniary agreed value. Id. 848. that the use language first prong of “as consideration for” in the does contem- transport “to plate murder hire but that that restriction *21 3 acknowledged for The defendant that the factor covered either "murder hire Walker, proceeds.” supra, [killing] gain life or ... an inheritance or insurance F.Supp. 910 at 848.
55 second, prong, render expectation receipt of the would the surplusage.” mere second clause Ibid. by locating rejected argument also the that the
The court
following
in the
pecuniary gain
procuring
factor
the
factor
federal
statute,
identify
flip-side
Congress
only
had intended
“to
the
of
short,
procuring murder
hire.”
In
the court concluded
Ibid
nothing
language
the federal statute or its
plain
that
of
gun.
history limited the factor to the case of the hired
Although
of
our statute does not sustain the breadth
court,
agree
language
adopted
factor
we
that the
of
the Walker
gun.
is not limited to the case of the hired
This
factor
creating
interpretation
separate
does
mean we
two
factors
are
one,
Rather,
inconsistently
within
with the structure of the Act.
factor,
“pecuniary gain”
Assembly
An
there is one
factor.
expectation
of the
of the Act would have included
version
factor,
pecuniary
potential aggravating
loss as a
elimination
legislators
factor was not
suggesting that the
believed
Law,
Judiciary,
gun. Assembly
the case of the hired
limited to
771,
Committee,
Bill No.
Safety, and Defense
Statement to
Public
Russo,
1982).
20,
acknowledge that Senator
(May
at 6
We
c(4)(d)
as
aggravating
factor
principal sponsor, referred to
factor,
court
agree
hire”
but
with the trial
“murder for
we
application
only
for the most
that was
‘Verbal shorthand”
familiar
898,
3,
Chew, supra,
N.J.Super.
at
n.
651 A.2d
factor.
Committee,
124;
Judiciary
Capital Punishment
also
see
Senate
(Feb.
1982).
26,
Jersey
New
Hearings on
at 14
The
Act:
S.
Georgia
Florida
State v.
“hybrid”
Act
statutes.
is a
II)
(1988)
(Handler, J.,
123, 217,
(Bey
Bey,
56 elsewhere, adopt we a limit interpretation with
Consistent
gain
Bigelow, supra, 209
ing
pecuniary
construction of the
factor.
1006; Rust,
328,
supra,
at 874.
Cal.Rptr.
P.2d at
250 N.W.2d
691
c(4)(d)
double-counting
apply the
it would be
to
We believe that
State,
robbery.
v.
killing in the course of a
See Cook
factor to a
1251,
(Ala.1979).
satisfy
Jersey’s
In order to
New
Aggravating circumstances must distinguishing imposed the few in which is [death] basis for cases ” many Gregg Georgia, from the cases which it is not.’ v. 428 (1976) 153, 188, 2909, 2932, 859, 96 S.Ct. 49 L.Ed.2d 883 U.S. JJ.) Stewart, Powell, Stevens, (quoting (opinion of Furman v. 238, 313, 92 2726, 2764, 346, Georgia, 408 S.Ct. 33 L.Ed.2d 392 U.S. (1972) (White, J., concurring)). Godfrey Georgia, In 446 v. U.S. (1980), Supreme 64 L.Ed.2d Court 100 S.Ct. 398 aggravating vaguely struck down an circumstance so worded that Ramseur, narrowing perform it failed to this function. See also c(4)(c) 199-200, supra, (holding 524 188 106 N.J. at A.2d factor vagueness limiting given). void for unless construction was vagueness applied. find no the factor on its face or as
We
application
statutory
is
of a
When a court
asked to review
factor,
aggravating
statutory
it must determine whether the
lan
guage defining
vague
provide guidance
the factor is too
to the
Martini,
3, 78,
II),
4
(1994) (Martini
In
cert.
State v.
N.J.
A.2d
—
denied, U.S.-,
(1995),
116 S.Ct.
A federal district
facially vague. The clear
[pecuniary gain
is not
factor]
“the
guidance re
meaning
provide
the
the ...
of
words themselves
(D.Ariz.
Lewis,
1079,
F.Supp.
v.
863
1088
quired.” Woratzeck
(9th
Stewart,
1994),
97
329
v.
F.3d
sub nom. Woratzeck
aff'd
—
denied,
U.S.-,
1443,
Cir.1996),
117
137 L.Ed.2d
S.Ct.
cert.
contemplating murder
very
We doubt
much that one
549
the
grammatical
the
structure of
have been misled
would
imposition
anyone
avoid
to mold conduct to
factor. Had
cared
easily
that other
penalty, the
could
have learned
of a death
actor
rejected
argument
already
jurisdictions had
considered
conjunctive. The construction
were
that the clauses of the factor
c(4)(d)
provided categorical
adopted by the trial court
of the
factor
This has been the
narrowing
guidance
to the sentencer.
clear
interpretation
that the
the factor. We are informed
consistent
of
c(4)(d)
only
killing
factor
sought
apply the
when
has
to
State
receipt
gain. See
precondition
pecuniary
a fatal
was
(1992)
109, 175-76,
Marshall,
contact his made the course arrest on was, presence police, although ambiguous, 23 and an to counsel. Under Edwards v. right invocation of defendant’s Arizona, (1981), 451 U.S. 101 S.Ct. L.Ed.2d 378 subject interrogation be to further unless counsel accused cannot present or the initiates further conversation after accused *24 invoking right “[A]ny counsel. indication a desire for to counsel, Edwards trigger” ambiguous, protection. however will Reed, 237, 253, v. State 133 N.J. A.2d 630 Because the 627 police request ambiguous, found was the court should protect right statement to his to counsel. have clarified defendant’s Elmore, N.J.Super. See State v. (App.Div. A.2d 205 500 1089 Miranda, 1985) (stating, under Edwards and that defendant’s phone complaining call mother that defendant was not allowed to right even attorney sufficient invocation to counsel was convenience, 5 gave taped untaped both and statements. For wе Defendant occurring example, aggregate we refer statements around the same time. For p.m. p.m. taped p.m. 6:13 as the 6:00 defendant’s 6:05 oral and statements statement. 6 granted cross-appeal rulings in We the State’s motion to these the event there reach, disposition we need not rule would be retrial. Because of we However, cross-appeal. recurring we issues are and will on the State’s briefly. address them
59 one). though requested not Without that clarifica defendant had tion, be must held that the 10:53 a.m. statement court Miranda, police warnings once suppressed. The administration of did County Prosecutor’s Office had taken defendant to Ocean McCloskey, v. requirement. meet the See State not Edwards 27, 446 A.2d(1982). N.J. statement, after
The court defendant’s second made held that Woodbridge p.m. January 6:00 on at the Police Station had initiated the admissible. The court found that defendant conversation, voluntary, given had statement after a that he rights, knowing, intelligent and waiver of and that the state- his improperly not fruit of the 10:53 a.m. ment was obtained Therefore, the court found no constitutional violations. statement. January challenges Defendant the admission of second counsel, that, invoking right he argues He after his statement. knowingly not and not initiate conversation and he did did further voluntarily right his to counsel because he was misinformed waive subjected charges and by police the nature of the about if the Court finds severe conditions of confinement. Even violated, argues that the rights defendant’s were police failure tainted the earlier second statement was scrupulously initial investigators to honor his invocation right to counsel.
B. against Jersey governing privilege self-incrim New law doctrine. We generally parallels ination federal constitutional Reed, summary supra, paraphrase the of that law set forth against 250-51, Jersey, right A.2d 630. In New N.J. at statutory— is founded a common-law self-incrimination Hartley, 103 N.J. than a See State rather constitutional —basis. *25 2A:84A-19; (1986); 252, 260, N.J.S.A. 511 80 see also A.2d provision Although lacking a constitutional 502 and 503. N.J.R.E. against self-in right, privilege establishing “[t]he expressly in the of New integral thread fabric been an crimination has 60 286, supra,
Jersey
Hartley,
New
law some circumstances affords
right against
tion of
than
federal
law.
self-incrimination
does
example,
expanded ancillary rights
requiring
For
the Court has
warnings as a condition to continued
readministration of Miranda
interrogation
right
after invocation
to remain silent. Hart
ley, supra, 103
511 A.2d80.
N.J.
object
judicial
right
special
been
to counsel has also
Reed,
supra,
(finding
133 N.J.
solicitude. See
against
suspects
privilege
state
self-incrimination that
un
under
ancillary right
dergoing
interrogation have
custodial
additional
suspect);
attempting
be informed
counsel
to reach the
(1992)
Sanchez,
(holding
129 N.J.
61
Miranda,
interrogation,
any
an
prior to
custodial
Under
right
Fifth
to remain
must be advised
Amendment
accused
attorney present during questioning. Once
and to have an
silent
counsel,
right
right
to
must be
an accused invokes
96, 103,
Michigan Mosley,
v.
423 U.S.
96
“scrupulously honored.”
321, 326,
313,
“Scrupulously
321
hon-
46 L.Ed.2d
S.Ct.
terminating
or[ing]”
right
to counsel entails
the invocation
unless
questioning
[or]
“until counsel has been made available
all
communication, exchanges, or
initiates further
[ ]
the accused
484-85,
Edwards,
police.”
supra, 451 U.S. at
conversations with
1885, 68L.Ed.2d at 386.
S.Ct. at
101
invok
If
accused
initiate
conversation after
does
may
if the
ing
rights,
his
be admissible
initiation
that conversation
voluntary
knowing, intelligent, and
waiver
constitutes a
Miranda,
at
supra, 384
S.Ct.
rights.
accused’s
U.S.
“heavy
burden”
at 707. The State bears a
L.Ed.2d
intelligent,
knowing,
and volun
demonstrating that the waiver was
80;
see
supra, 103
511 A.2d
also State
tary. Hartley,
N.J. at
(1993)
631, 654,
(holding
C.
anticipatory request to
question
first
is whether defendant’s
The
trigger
sufficiently clear to
attorney
his
was
his mother to call
request
protection. The
concluded that the
trial court
Edwards
a.m. statement.
suppressed
and
the 10:53
sufficiently clear
argument
even if
defendant
the threshold
The State advances
counsel,
yet
was not
right
his
intend to invoke
did
argues that the Fifth
protection. The State
to Edwards
entitled
safeguards
counsel,
procedural
estab-
right to
Amendment
Miranda,
defendant is both
do not attach until
lished under
Questioning
least
must “at
custody
interrogated.
to be
and about
protection
apply.
be imminent” for
(3d
Redman,
relies on
v.
F.3d 1237
Cir.
State
Alston
denied,
1994),
1160, 115
130 L.Ed.2d1085
cert.
U.S.
S.Ct.
(7th Cir.1994)
(1995),
LaGrone,
Given the narrow balance
precedent.
sis,
to
our
We
prudent
apply
to continue
we believe it
request that his
agree with
trial
that defendant’s
thus
court
equivocal
attorney was
invocation
mother contact his
questioning
had
be clarified before
could
right to counsel that
to
warnings
did not
place.
administration Miranda
take
Later
Wright,
clarify
equivocal
of counsel.
earlier
assertion
serve to
122,
(holding
confes
counsel does not 1089. Our 380, at 500 A.2d Elmore, analysis 205 N.J.Super, on supra, argument. we address defendant’s require 64 question
The second is whether defendant “initiated” the p.m. knowing, police with the at 6:00 and made a conversation intelligent, rights. voluntary waiver of his Miranda Bradshaw, Supreme Oregon
In
the United States
Court
willingness
inquiries “evinc[ing]
found
and a
for a ...
desire
reasonably
investigation...
could
[or that]
discussion about
interpreted by
relating generally
have
officer
to the
been
1039, 1045-46,
investigation,”
constitute initiation.
U.S.
(1983).
2835,
405,
2830,
Inquiries
S.Ct.
77 L.Ed.2d
incidental
relationship,
requesting
to the
such as
to use
bath-
custodial
water,
requesting
room or
drink of
do not
further
initiate
concerning
interrogation.
plurali-
conversation
The Bradshaw
ty
police “Well,
statement
found that the defendant’s
to the
what
—
placed
going
happen
now?”—made
he was
in a
me
after
location,
police
transport
to another
further
vehicle
initiated
Id,
1043-44,
2834,
at
It is of course as the trial court that defen unambiguously right p.m. his dant invoked to counsel 12:50 *29 January questioned point. He about 23. was not after that At (Detective p.m., speak 6:00 defendant asked to with “Geoff” Ker win). crying, and was Defendant was asked Kerwin what he facing. if he Kerwin told him. Defendant then asked Kerwin jail. would visit defendant in When defendant said that he “went
65 defendant, Bowman, stopped sought off” Ms. Kerwin rights, his investigator, another read defendant assistance of taped facts that defendant took a statement. These demonstrate being he “inviting for which was discussion the crimes Fuller, 429, 82, supra, 118 held,” and thus N.J. at 570 A.2d conversation. initiated the established, State proper has been
Once initiation the accused beyond a reasonable doubt must demonstrate beyond rea knowing, intelligent, voluntary a a waiver made Adams, v. 127 N.J. A.2d sonable doubt. See State 605 Gerald, 40, 118, 113 N.J. (1992); A.2d State on the facts and determination a valid waiver is based Adams, supra, N.J. at circumstances of each case. may a consider include A.2d 1097. The circumstances that court interrogation, of the the advice as to constitutional the duration education, and the rights, age, intelligence, level defendant’s II, Bey supra, 112 N.J. at length and conditions of the detention. 548 A.2d887. Miranda fresh argues that there should be Defendant to re warnings of contact and that a failure after initiation inculpatory Mirandize a suspect suspect before the makes important assessing a factor whether statement should be an us intelligent. in effect asks knowing and Defendant waiver was per rule whenever defendant initiates establish a se immediately re-Mmmdize lest conversation, police should incriminating make an statement. forty-one-year- was a The trial court found that defendant life. He had twenty in his male over arrests adult old with justice system. After workings criminal familiarity with attorney, provided speak his defendant was requesting with some He received phone questioned point. and not after relaxant, Flexeril, 5:45 medication, about specifically a muscle *30 murder, for possible penalties informed of defendant p.m. When Hartley conversation with Kerwin. unilaterally continued the warnings prior police-initiated ques- requires renewed Miranda require warnings prior tioning; be anomalous to renewed it would initiation, Upon prudent it is conversation. defendant-initiated warnings police police if the for the to readminister the Miranda questioning. resume That was done here. police misinformed argues further that because
Defendant
murder,
penalties for
his
was not
possible
him
statement
about
being in-
voluntary.
alleges
deliberately
by
tricked
He
he was
thirty-year
imprisonment, or
he faced
term of
formed that
a
penalty
possibly
sentence. The death
was not mentioned.
a lesser
Although
failure to men
we are troubled
Kerwin’s
penalty,
misleading
incomplete state
tion the
the use of
death
finding
See
per
preclude
ments
se
of voluntariness.
do
655,
Galloway, supra,
applicable
at
Given the of circumstances confession, interrogation agree shown we that the State has knowing, intelligent, voluntary. was dеfendant’s waiver that the Finally, disputes the trial court’s conclusion sufficiently statement, January given taped p.m. at 6:00 by the 10:53 a.m. statement. independent of and not tainted *31 analysis thorough and reasoned provided court a The trial taint, concluding concerning illegality the of of is not tainted 23,1993 defendant’s second statement January by of one entwined,” first. statements are not nor are they part
the The “inextricably the of the I find that the second statement was not “fruit continuous process. made defendant on January I therefore admit both statements tree.” poisonous meeting and Kerwin. after the 6:05 between defendant 23,1993 pan. admissibility p.m. statement of the 6:00 The court reviewed Hartley, supra, 279, N.J. in 103 at 511 set forth under criteria Hartley inquiries to two alternative A.2d 80. The Court described had illegally obtained statement tainted evaluate whether knowing inquiry first subsequent, voluntary, and statement. The inextricably was so questions whether “the second statement interrogation procedure part to be of the first entwined with Ibid. procedure.” that same interrogation processes as inquiry two treats the second earlier, illegally obtained
separate,
and turns
whether
or a violation
of a constitutional violation
result
statement
ancillary rights.9 Id. at
281,
The trial court twenty Woodbridge police, five hours and custody and watch of provided a This the two statements. passed minutes between they were the statements so that time between sufficient break rights 9 distinguishes of of the law between violations ancillary New Jersey rights those measures Miranda, violations of the constitutional protect to issue the 519, A.2d 121 Failure Burris, 509, 145 N.J. 679 State Ibid. safeguards violation. not rise to the level of a constitutional does Miranda right is a been invoked a Miranda has However, elicit statement after right Ibid. of constitutional itself. violation Id. interrogation.10 procedure process not part of same 279, A.2d at 80. inquiry, must “taint” the State demon
Under
second
product
that the
statement “was
the first
strate
second
Id.
...
statement was
or that
‘taint’
first
attenuated.”
283,
primary
analysis
A
at
The trial court found that the cat had not been let out of
a.m.,
bag
at 10:53
the final statement
a marked
“was
departure
culpability
terms
from the earlier statement on
date,”
by any
provoked
part
and that it was not
action on the
of the State. Defendant revealed his involvement in the crime in
pieces”
day.
“bits and
over the course of the
With the additional
police,
information defendant obtained from the
he
was able
give
make an informed assessment
statement.
another
whether
Kennedy, supra,
(holding
See
97 N.J.
Finally, although Detective Kerwin erred the court found clarifying request for counsel at the time of the not defendant’s a.m., he did not interrogating arrest and defendant at 10:53 Rather, purposefully flagrantly. simply Kerwin did then act requested counsel. The court also noted not bеlieve defendant attempt question defendant after defen- that Kerwin did not rights p.m. clear invocation of his at 12:50 “Had defendant dant’s him, spoken have to defendant requested Kerwin would never 23,1993.” again January *33 analysis employed proper the and reached the
The trial court evaluating admissibility of defendant’s proper conclusions in the (1) Therefore, we hold that: a defendant’s invocation statements. precludes right silent or to counsel further of the to remain immedi- questioning by police, the even if such invocation occurs prior to the onset of ately defendant’s arrest and after the (2) being he call his mother as was defendant’s to interrogation; right his of attorney for to his was an invocation arrested her call minimum, counsel, or, ambiguous request for an at a was for fur- required clarification as condition counsel that further (3) p.m. inquiry regarding the questioning; 6:00 defendant’s ther police, further charges facing he initiated contact with the was (4) admissible; and defen- proper him interrogation of was illegally p.m. not a fruit of the taped dant’s 6:13 statement was a.m. statement. obtained 10:53
IV term denying err in defendant’s a definition request Did the trial court during charge on the court’s own conduct? "accomplice” argues proofs at trial offered three scenarios Defendant jury have could have been actual for the considered. Chew Bowman; he could have been a lookout killer of Theresa dealer; Joe, or, drug by lobby Theresa killed hotel and found to hire others kill evidence he had tried because there was Theresa, he involved possibility was a had been there by Kenny killing planning of the murder but not the actual guilty have been Rogers In that defendant would look-alike. case accomplice death-eligible he would but not since of murder an by committed crime his own conduct. Defendant not have effectively possibili- argues judge trial removed this third that the inadequate an ty jury’s “own from the consideration because charge. conduct” raised, liability first accomplice defendant
When the issue consulting with the accomplice charge. After did not seek an Office, however, Chew’s Appellate Public Defender’s Section charge requested accomplice in the definition own attorney charge conduct, do own conduct noting “I know how to don’t why asking accomplice charge [for] I’m it.” and that’s without that another argued to the court that there was evidence She chef, by actually Theresa. man killed person, possibly the seen although person possibly hired That have been could *34 money exchanged. there was no evidence that had been Defense counsel noted: explaining concern is that own conduct without
My by your accomplice charge light [defense fact them, counsel’s] that its not especially theory going speaking jury and he’s not to be I about think need to be that, they told what an is. acсomplice court, however, The observed charge, asking
when ask for an as I understand what are you accomplice for, you jury guilty what want tome do is to tell the can find Mr. Chew as a you you or an principal accomplice. counsel, however, Defense accomplice charge did not ask for an charge. During colloquy, connection with the murder court stated: having seeing [the
What I’m would want that Chew difficulty why you theory Rogers deciding guilty look-alike] hired the as a he’s or Kenny whether part dealing charge as it in with the own conduct which is what opposed really you’re concerned about. responded: Defense counsel
That is what I’m concerned about. That’s I do true. not want that absolutely being charged charge thinking, an some other in the and then accomplice place focusing charge, in on that. I want it as of the own conduct that’s correct. part that, you’re I court then stated “then misunderstand what before, saying. you thought you I asked I I asked before whether you accomplice charge part charge” wanted the of the murder jury guilty so the could [defendant was] decide “whether said, accomplice.” murder as “I an Defense counsel don’t want stated, “Oh, thought exactly you that.” The court I that’s what wanted,” replied: to which defense counsel
No. I never wanted and if I I’m that, that, expressed myself badly sorry. My charge giving concern is the own conduct them more information only by your about could be. what accomplice the court Defendant now claims that misinformed trial counsel charge, accomplice specifically as to the effect of an that defendant death-eligible guilty accomplice if would be found as an to murder. argues erroneously Counsel that the trial court reasoned that if jury kill found Chew did not Bowman but hired someone Kenny Rogers to do it —the man who resembled crime would —the death-eligible still under the act. The court said: be general which would That’s not in the accomplice liability accomplice accomplice jury he that, if a hired verdict, defendant a death found penalty spare *35 going charge I’m to it. I don’t to that would be own conduct. So not kill, someone charge that to is to and for the reason it, think there factual basis whatsoever any charge given [defense counsel] a to me would create it under the by hypothesis trigger would off the death it, situation which would which put
State v. Marshall is so denied. phase anyway application penally Thus, charge mention during guilt-phase its the court did not purposefully or accomplice, simply as term but defined murder causing bodily injury resulting in knowingly or serious death death resulting from passion not in the heat of reasonable that did occur provocation. correctly defined “own conduct”: court if he a murder his own conduct and by actively directly A defendant сommits injuries is from which the murder, in the that the infliction participated a must reasonable doubt that the defendant’s victim died. The state beyond prove [and] death ... conduct ... was the direct and immediate cause of that murder____ a committed the If have you defendant was the who person actually killing conduct, if are as to whether the his own or by you reasonable doubt as to reach a unanimous decision a reasonable doubt to whether
unable beyond his own that is a final conduct, defendant committed the murder by permissible in on issue. That would result sentence mandatory verdict this imposition of at least without thirty years prison parole. murder again objected accomplice to the omission of Defense counsel charge. explanation in the of the own-conduct She discussion actually explained possibility was a that Chew did not that there to kill Bowman but was nevertheless involved hire someone suggested commission of murder. She planning and may claims Helen Borden have been involved. Defendant accomplice liability juiy never told of the ramifications of was thus finding the difference in a case such a would have made which life between and death. course, absolutely charge accomplice liability is
Of
on
life
necessary
charge
when the
can mean the difference between
jury
may
deny a
mechanism to decide
death. A court
not
proven,
charged
of murder
has been
of the two forms
which
accomplice when
principal
or murder as an
evidence
murder as
Long,
A.2d
v.
575
present for either form. State
N.J.
(1990).
theory
unanimously agree
juryA
need not
murder.
liability
principal
accomplice
or
in order to convict of
(1994).
Brown,
jury
only a
The with defendant’s liability accomplice to submit as one of dant did not ask the court jury consider in its verdict. forms of murder could tightrope to freedom or a verdict attempted to walk a Defendant expose her Defense counsel did not wish to of less than murder. accomplice. Had Chew been to a conviction of murder as an client no realistic accomplice killing, there would have been to the (The jury jury manslaughter way for the to return a verdict. manslaughter.) Instead of seek- charged passion-provocation sought accomplice, defendant ing charge on murder as an a principles of vicarious own-conduct definition the read into the liability.
Although largely mirroring common-law distinction liability, con accomplice the own-conduct principal and between is question of defendant cept simply “is irrelevant whether Gerald, supra, 113 N.J. knowing or murder.” guilty purposeful of During guilt-phase proceedings, at 549 A.2d792. jury should be convicted of murder must determine whether defendant first considering, under N.J.S.A. of vicarious where liability appropriate, principles after it has unanimous [such 2C:2-6 liability]. Only accomplice conspiratorial juiy knowing guilty and murder should the turn found defendant of purposeful
ly his or of committed the homicidal acts her to the whether defendant question own conduct. UbiA] (not exceptions “drug kingpin” for hire or the murder With here), theory liability a charged a based on of vicarious conviction proceedings. The subject death-penalty the defendant cannot provision “is not an element of the offense murder. own-conduct phase of merely triggering penalty is a device for the death It Gerald, supra, 113 N.J. 792. trial.” 549 A.2d analysis slightly requires
The own-conduct different jury analysis principal inquiry by than the factual liability. judgment be made as accomplice This because a must participation in homicidal act was to whether a defendant’s eligible. defendant death For qualitatively sufficient to make the Gerald, men defendant was one of several involved example, in elderly beating person. of an We there held that the “own language conduct” standing finding that the defendant’s actions alone does necessitate specific is whether or not the defendant caused the victim’s death. relevant inquiry act, in the homicidal in the infliction i.e., actively directly participated
injuries [the] The critical are that from which the victim died. elements *37 in of his conduct to the victim’s demise. fact and the acted, immediacy [Id. 792.] 97, at 549 A.2d way in an of unfairness in the There was thus element sought jury. It to have the court instruct the which defendant deny jury opportu the unfair to the State to the would have been accomplice nity of but then to convict defendant murder to liability only triggering in jury accomplice the have the consider sense, presents suggestion In the converse phase. a defendant’s Purnell, of State v. 126 N.J. We there 601 A.2d jury theory a of death penalty-phase held that a could not consider (murder felony) permitting the eligibility the course of а without non-capital on that jury guilt phase in the to consider a verdict basis.
It is true charge given jury, that the interest that a be to the public may require particular charge, though a the defense where the facts such even neither rationally support of criminal law is too it; nor the has that enforcement prosecution requested adversaries; to be controlled the contentions important completely by obligation jury, that the court has an to see to it that the as the representative all of the facte and all of the given might offenses that public, possible be found from such facts. reasonably Choice, (1985).] 298-99, 486 A.2d [State v. 98 N.J. However, duty charge any possible trial court to only “clearly appropri offense arises when the facts indicate” the id. at charge, ateness of that 511 A.2d and when the strategy. instruction does not conflict with a defendant’s tidal giving jury While the interest all of the facte and the choose public option all of over counsel’s interest..., from offenses may prevail consequent possible injection case where the of that issue be the may [unrequested] by will risk conviction. court enhance the of a murder
[Id. 80.] 300-01, 511 A.2d court did not mislead defense counsel. The The trial eligibility if colloquy concerning defendant’s death he had hired end, process. beginning not the Defen killer came at the charge request in the trial and the communica dant’s came late may have Appellate Section and trial counsel tions between always pre something in The court was missed the translation. charge. request pared give straight accomplice It was the charge incorporate accomplice charge in the own-conduct problem. Ultimately, the trial court reasoned that caused the liability, accomplice if even there were scenario charge clear [t]he [answer] other is that itself on own conduct is abundantly his he’s conduct, that in to find the defendant committed a murder own order charge. got I don’t know to be the one that killed her. I say my actually thing All would do would be first how much more would want. the accomplice you *38 76 theory no basis and serve to confuse that has factual
of all to introduce some juty. part on the it was ineffective assistance may argued now that
It be she did. sought the instruction that counsel to have of trial claim, we satis barring are a later ineffective assistance Without prong of Strickland/Fritz test there second fied that under the materially these deficiencies probability not is a reasonable Fritz, 42, v. 105 N.J. conviction. State contributed to defendant’s (1987).11 58, A.2d interpretation generous of this record
Only the most
accomplice charge. The
basis for an
provide
rational
would
patchwork of
argues
only under
the “most bizarre
State
periphery of
found to be on the
could defendant have been
facts”
placed
of the crime with
His
him at the scene
this crime.
sister
into
gotten
he
another could have
on his clothes. How
blood
explained.
easily
Corvette with Theresa
not
Biegenwald, we held that the failure to instruct
v.
State
In
theory nor
liability,
neither
facts
jury
accomplice
when
jury,
not
put before the
was
error.
supporting it were ever
in this
(1991).
case,
19,
too,
N.J.
we are
performance
so serious as to
and was
Fritz, supra,
V Other Errors Claimed
A. of Prior Statements Admission Consistent January of argues 23 statements Defendant that Crystal should not have been admit Helen Borden and Charette may be Although prior consistent statements ted evidence. lie, charge recent fabrication or motive to admitted to rebut a of not have been argues that those statements would present to lie was at because the witnesses’ motivation admitted noted, original they prior statements. As their the time made 23, however, January gave defendant an alibi. On statements statements, trial they provided largely consistent with their both testimony, inculpated Anticipating an attack on defendant. Crystal, credibility prosecutor of and said that he Helen prior offer on redirect their consistent statements intended to 803(a)(2). to N.J.R.E. pursuant prior consis- objected to the introduction of the
Defense counsel proposition that “if citing case law for the tent statements federal given in falsify the statement was existed at the time the motive probative no value testifying, of then there’s addition to the time Jersey’s original to come in.”12 New allowing that statement 803(a)(2) rule. Defense Rule Evidence is based on the federal scope ruling of the sought an immediate to determine counsel to rule in advance. The trial court refused cross-examination. Crystal on direct examination testified Both Helen stated that January 23. Each their statements accordance with police. cross- initially given information to the After had false she concerning and about the “deals” their motives examination impact prior argues statements was consistent Defendant also that the jury few new facts compounded by new information. The the fact that the heard statements, however, compelling аs to emerged were not so from anything but harmless error. constitute years (Helen years up to five faced ten with
they made have prom- Crystal had been parole ineligibility on other offenses sentence), moved to admit prosecutor ised non-custodial the state- trial ruled that court prior consistent statements. admissible. ments were ruling in Tome v. subsequent relies on the
Defendant now (1995), States, 150, 115 130 L.Ed.2d 513 U.S. S.Ct. United that Federal Rule Evidence Tome held theory. his confirm 801(d)(1)(B) consistent “permits introduction of a declarant’s charge of recent fabrication statements to rebut a out-of-court only when those statements were improper influence or motive improper influence charged fabrication or before the recent made at 588. Id. at S.Ct. 130 L.Ed.2d or motive.” *40 admissibility of consis- Jersey’s prior rule previous on New R. contained in Evid. which stated that tent statements was support be admitted to prior shall not consistent statement “[a] express implied or credibility except of a witness to rebut Effective charge witness] recent fabrication —” against [the by new 1, 1993, replaced 20 a rule Rule Jersey’s July New 801(d)(1)(B).13 The new Rule provides, mirrored federal Rule part, that: pertinent following rule: are not excluded by hearsay The statements (a) a or who is a witness at trial ... A statement made by person previously hearing, if while it would have been admissible made declarant provided testifying and statement:
[********] (2) is to rebut an express is with the and offered testimony consistent witness’ charge against influence or of recent fabrication or the witness improper implied motive____ 803(a)(2).]
[N.J.R.E. rules, commentary accompanying the evidence Richard In his Biunno stated: 13 statements from hearsay The federal rule excludes consistent prior 801(d). statements as The Rule treats such Fed.R.Evid. New Jersey definition. 803(a). falling within an N.J.R.E. but as exception.
hearsay,
803(a)(2)
801(d)(1)(B)
analogue
has no
follows Fed.R.Evid.
prior
N.J.R.E.
governing
although it is
to the
related
New
rules
Jersey
hearsay exceptions,
to allow
It was
order
common law
“fresh
adopted
exception
complaint”____
of a witness which would
evidence of those
statements
the use as substantive
prior
is,
also under N.J.R.E. 607
on the issue
credibility,
be admissible
purely
witness if his or her
was attacked.
rehabilitate a
credibility
(1995).]
803(a)(2)
2 on N.J.R.E.
Evidence,
N.J. Rules
comment
[Biunno,
547, 556,
Johnson,
(App.
N.J.Super.
The Tome
prevailing
of the
for more than a
before
common-law rule
century
adoption
introduced to
of Evidence was that a
consistent statement
Federal Rules
prior
charge
or motive was admissible
of recent fabrication оr
influence
rebut
improper
alleged
influence, or motive
fabrication,
if the statement had been made before the
being,
if
As Justice
into
but it was inadmissible made afterwards.
Story
came
...
assailed as a fabrication of a recent date
“[W]here the
explained:
testimony
of the antecedent declaration
party
in order to
proof
repel such'imputation,
(10 Pet.)
(1836).
[Tome, supra,
balancing
statement-by-statement
rejected the alternative
Tome
dissenting
suggested by
members:
approach
its four
dangers
balancing
... creates the precise
approach
The statement-by-statement
sought
considerable
to avoid: It
involves
Committee noted and
the Advisory
of trial
judicial
and it
the difficulties
it reduces
enhances
discretion;
predictability;
knowing
or not
in advance whether
will have
because
difficulty
parties
preparation
will be admitted.
out-of-court statements
particular
B.
Charge
Defendant’s Statement
Jury
Regarding
to in
argues
court’s failure
trial
Defendant
credibility
prove the
jury
had to
State
struct
had
doubt
the clear
beyond a reasonable
statement
defendant’s
*43
result,
bring
unjust
requiring a
capacity
an
thus
reversal
to
about
object to
did not
the chal-
of his
Because defendant
conviction.
lenged
any challenge to the instruction
instruction he has waived
only if
R. 1:7-2. This Court
may
finds
reverse
it
appeal.
review,
R.
plain
federal
error
“plain error.”
2:10-2. Under
error,
the
the
to
that there is an
that
defendant has
burden
show
“obvious,”
that
has
error
“clear” or
the error
affected
is
Olano,
734,
725,
States v.
507 U.S.
United
rights.”
“substantial
(1993).
508,
1770, 1777, 123
519
Our
is the
S.Ct.
113
L.Ed.2d
law
409,
(1997),
In State v.
N.J.
147
A.2d 97
we
same.
688
Jordan
considering
jury charge, plain
is
in
error
stated that
affecting
Illegal
charge prejudicially
rights
in
substantial
of the
the
the
impropriety
reviewing
justify
grievous to
notice
court and to
sufficiently
by
the
bring
court
itself the error
to
about
convince the
that of
clear
possessed
capacity
unjust
result.
(citations omitted).]
[Id.
422,
688 A.2d97
trial,
jury
the
instruct
At
defendant asked that
court
the
272,
Hampton, 61
State v.
N.J.
83 carry principle could be the State such a burden. The counterproductive In to a defendant. this case defendant’s He admitted know- partially exculpatory. never statement was It be ing purposeful murder of Theresa. would anomalous prove beyond doubt the require a reasonable truthful- State part ness statement. Bowman, N.J.Super.
In State v. (App.Div. 398 A.2d908 1979), jury be told the court had reasoned that a should that the credibility conflicting statements be- State must establish Jordan, However, State yond a reasonable doubt. aff'd, (1995), N.J.Super. 147 N.J. A.2d 688 A.2d (1997), Bowman rejected suggestion, Appellate Division *44 Hampton reasoning charge dispensable when that even jury conflicting because “[t]he the State offered two statements they which that would have to decide had to know and understand 595, N.J.Super. at 667 A.2d of these was credible.” 285 versions reject argument. 1094. We thus defendant’s
C. Prosecutorial Misconduct prosecutor’s de that conduct Defendant maintains argues prosecutor re prived him of a fair trial. He offering opinions on the argument, peatedly personalized his credibility of and ar on both witnesses evidence as well as argued argues prosecutor guments. also Defendant not in facts evidence. many prose- to the references
The summation contains State’s “I “I find that to believe.” personal very hard beliefs. cutor’s selling large of cocaine was stоry a amount about think entire jury provided prosecutor of thin air.” The also concocted out He described of the witnesses. impressions his of some with having “chip a on his being “aggressive” George as Tilton very shoulder,” as smart “[n]ot son Robert Chew and defendant’s ways perhaps.” of the except street 84 hands, with prosecutor also discussed cuts defendant’s “[w]ell, record, [defendant] as support saying
little
evident
hair,
yanks
pretty close
her neck and there’s
her
his hand is
struggling going
still some
on.”
prosecutor
him liar
complains that the
called
Defendant also
have
during
prosecutor
“[Y]ou
summation. The
said:
someone
his
Chew,
about
these
John
someone who thinks
all
clever as
defenses,
facts,
suggests
things,
plants
someone who
someone who
creates evidence.”
someone who
as
improprieties
are
that the
We
satisfied
deprive
such
as to
defendant of a fair
serts were not of
a nature
commenting
Although generally limited to
on the evidence
trial.
supported by
drawing
inferences
are
and to
reasonable
“vigorous
proofs, prosecutor may
force
nonetheless make a
Bucanis,
45,
presentation
ful
of the
case.”
26
State’s
State v.
N.J.
denied,
1157,
910,
2
A.2d
cert.
357
78 S.Ct.
U.S.
(1958).
prosecutor
The Court will afford a
“consid
L.Ed.2d
limits, making” closing argument.
Pur
leeway,
erable
within
nell,
by way
A.2d
supra,
“[C]omments
126 N.J.
175.
appeal,
no
if
grounds
denunciation or
will afford
reversal
Marks,
merely descriptive
proofs
adduced at trial.” State v.
514, 534,
N.J.Super.
(App.Div.1985),
D. Mitigating To Rebut Factors Burden State’s properly failed allocate argues that trial court Defendant finding mitigating proof factors. burden of correctly jury that defendant bore burden informed court factors, but not mitigating did forward evidence of to come with jury the “actual burden instruct that State bore has introduced disproving such factor” once the defendant a competent evidence of its existence. record,” prior have
Except as “no for factors such we mat jury’s of whether consistently “[t]he held that determination of a mitigating factors is the result constitute ters evidence Zola, supra, N.J. 548 A.2d judgment.” qualitative example “álthough gave [the] as an 1022. The Zola Court age subject Bey youngest that could be [in ] defendant jury youth his tо find penalty, to the death failed ed Ibid, II, (citing Bey supra, 112 N.J. at mitigating factor.” 887). jury should be instructed A.2d We do believe is mitigating for which there statutory must factor it find disproved it. State unless the State has reliable evidence Harris, 525, 567, jury certainly A.2d A 141 N.J. factor assessing whether a consider all reliable evidence should is weight to factor entitled. determine the which the present of a statutory definition the evidence meets the But whether jury. mitigating is a matter for factor E. Mitigating Weighing Factors below, argues object failing After must jurors that each of them neglected inform the court he or weigh mitigating factors that all individually consider jurors find that factor if did not the other present found even she duty jurors understood their argues that the present. The State *46 sentencing right proceeding a and that to fair defendant’s jeopardized. jurors penalty at the conclusion of the court instructed against weigh mitigating aggravating factors
phase they that must emphasized factors. The court that mitigating that of a consider [i]f factor, there reliable evidence must you give weight as In if evidence, words, it such deem other you any and appropriate. mitigating with find the evidence has to a factor, you been presented, respect weigh mitigating to law, consider it, factor be are bound present, you against aggravating factors found to be it, you proved. argues charge that indicated that individual Defendant jurors jurors (plural) only mitigating balance factors need to be present: found agreement To the extent should reach on you reasonably possible, attempt mitigating However, a factor does or does whether not exist. question particular aggravating unlike the law to the factors, does not with require unanimity respect finding juror mitigating must factors. Rather each determine individually weighing juror mitigating or factor In
whether not such exists. each process, outweighs, aggravating must whether the factor decide unanimously individually jurors mitigating a or factors that doubt, reasonable factor beyond found be present added.] [Emphasis However, jurors recording later their the court instructed jurors correctly they votes and reminded need not be mitigating majority unanimous or even about the factors have vote: after a find are not unanimous discussion, full on the existence If, you you mitigating factor, of a will record last on the factor on non-existence vote you your in the is,
the verdict form. That the number or “no” votes. boxes, “yes” majority mitigating is not However, whether factor exists remember decided by juror mitigating long As one finds evidence, factor, vote. as credible any any that factor. check, next to you’ll “yes,”
[********] long juror mitigating factor, As finds evidence of a must be checked “yes” any to the next factor.
******** mitigating is evidence, evidence, If one feels that there credible of that person check factor, “yes.” *47 process, you weighing “[i]n stated that the recapping, In the court unanimously, factor, you weigh aggravating which found the will mitigating you factors that have found.” against the been, charge and the Although have the not as clear as it could sheet, entirety, jurors the that in their informed verdict taken balancing of finding the or they be unanimous on need not fact, meticulously jury the sheet mitigating In verdict factors. mitigating alleged. factors on the recorded individual votes
F. Testimony County Medical Examiner testimony of by the argues he was “ambushed” Defendant County regarding certain crisscross Medical Examiner the trial, Prior to defense counsel found on Theresa’s face. scratches report, which described all the medical examiner’s had obtained trial, in Shortly prosecution the before the victim’s wounds. the examiner the that medical defense counsel and court formed the scratches were testify opinion it was his would made,” restrained perhaps Ms. Bowman was “deliberately while objected. given asserts he was Defendant immobile. Defendant opportunity to voir dire potential jurors on their attitude no death or attack the the manner of Ms. Bowman’s toward credibility. court ordered that the medi examiner’s The medical “torture,” word because that factor not mention the cal examiner charged. was not testify to trial,
At examiner was allowed the medical The describing victim’s wounds. scratches in the course opinion crisscross in his testified that medical examiner restrained or was “either made while Ms. Bowman scratches were certainly moving [and] ... were deliberate.” testimony. crisscross allowing
We find no error that were photographs of the victim visible wounds were may of the wounds jury. To omitted mention to the have shown properly instruct- the court jury. find that have confused We jurors consideration of responsibility ed on their exclude penalty-phase manner of Ms. Bowman’s death from their delibera- tions.
VI
Penalty
Constitutionality of the Death
record,
completeness
preserve
note
For
we
challenge
proportionality
defendant’s
to the
of his death sentence
Jersey death-penalty
New
his assertion that
statute
Eighth
argues
violates the
Amendment. Defendant
*48
narrowly
death-eligible persons
statute fails to define
the class of
provide
system
meaningful appellate
and
of
fails to
review.
review,
Following proportionality
we shall consider this chal-
lenge
respect
challenge to
to his sentence. With
to defendant’s
statute,
constitutionality
death-penalty
the
of
we
to our
adhere
Ramseur,
supra,
decision in
VII We affirm defendant’s convictions. We also affirm his sentence of death.
HANDLER, J., dissenting. charged
Defendant John of the Chew was with convicted purposeful-or-knowing murder of Theresa Bowman. He sen- was tenced death found have killed in because he was Bowman expectation receipt something pecuniary of the value. for that was he was as the basis determination that named beneficiary policy by of a life-insurance Bowman. Individual held jurors mitigating establishing found each the ten circumstances mitigating the existence of the catch-all Never- so-called factor. theless, jury unanimously and beyond a reasonable doubt outweighed single aggravating all factor found that factors, mitigating death. and sentenced sentence, engages puzzling in sustaining In this death the Court patently gives aggravating factor a reasoning first sole —it then, though it vague interpretation, even over-broad and interpretation imposed be on its that limitations must determines factor, aggravating it does of the application in to validate order Moreover, the Court application limit this case. not that jury the factor was instructed about ignores the fact that the Court’s own definition. Under the with the Court’s accordance erroneous, clearly and the analysis, jury were instructions sen- jury’s misguided findings possibly support cannot death imposed. I from the Court’s conclusion tence that dissent regard. relied on I determinations dissent as well from other murder conviction and death sen- to sustain defendant’s Court death-eligible in jury that defendant was tence. The determined I that the by his own conduct. believe he killed Bowman failed to because the trial court must be vacated death sentence charge part of the accomplice instruction as provide Furthermore, I find requirement. explained the own-conduct prior state- consistent in the admission reversible error important witnesses. ments of two
I a single aggravating factor to obtain death on The State relied a the mur defendant committed “[t]he in this case—that sentence receipt, expectation or for the der as consideration N.J.S.A 2C:11-3 pecuniary value----” anything of of receipt c(4)(d). aggravating that single a fact to establish It also relied on policy beneficiary of an insurance factor —that was statuto that issue thus raised whether victim’s life. The on the murder insur applies who commits ry to a defendant factor jury is whether the to that issue proceeds. Related ance application of the in its consideration properly instructed factor.
A. aggravating relevant language defines the statutory It death-eligible under two circumstances. person makes a factor for the a murder “consideration so first if he commits does value____” Clearly, Ibid. pecuniary receipt anything ... of of meaning accurately expresses sensibly language read pecuniary value is not receipt of an item of mere Rather, requirement that the language imports the sufficient. receipt. is a of that Consideration in “consideration” murder be meaning. established and well-understood that comes with an term inducement to a contract.” “[t]he denotes is a contract term that It (5th rev.1979). can Consideration Dictionary 277 ed. Black’s Law “cause, motive, induces a impelling influence which price, be the Consideration, into a contract.” Ibid. contracting party to enter purpose of however, solely the motive or equated with cannot be Rather, actor; one acts. simply the reason that it is more than understanding per- two between a mutual consideration entails meeting sons; requires a of the minds parlance, it in contract E. Allan Farns- promisor. See promisee and the between the (1982) Contracts, concept consider- worth, (noting § that the 1.6 Lord, pro quo exchange); Richard A. developed quid, from ation ed.1992) (4th Contracts, (defining § consideration 7.2 on Williston Helen H. exchange); Joseph M. Perillo & bargained-for as a ed.1995) (rev. Contracts, (refusing § Bender, 5.1 Corbin mutuality type noting that it entails consideration but define Thus, be undertaken “as consider- exchange). for a murder to value,” the anything pecuniary receipt ... of for the ation understanding meeting of the and a have a mutual murderer must words, murderer must person. In other another minds with committing the offense. purpose of by another for the be hired (1990) (“The Clausell, 580 A.2d 121 N.J. Stale v. See c(4)(d) exchange murder was committed is that the essence of
91 DiFrisco, value.”) added); something (emphasis for of State v. cf. (1994) (DiFrisco II) (upholding death A.2d 137 N.J. 734 c(4)(d) murderer, an pursuant sentence factor where under — U.S.-, denied, victim), agreement, paid to kill cert. 133 L.Ed.2d873 S.Ct. if death-eligible person a statutory
The
factor also makes a
receipt
anything
of
of
expectation
is
“in
of the
murder
committed
value____”
c(4)(d).
expectation
The
pecuniary
N.J.S.A 2C:11-3
requires
two
receipt similarly
meeting
of
a
of the minds between
statutory
persons.
interpretation
the
factor
The basis
of
receipt
well as
modifies
an actual
as
that “consideration”
both
anticipated
expected
receipt
anything of value.
an
or
future
of
Thus,
meaning
aggravating factor is that it
of this
central
agreement and
arrangement, including
a
a
requires
contractual
understanding,
kill
the murderer —the “contract
mutual
between
meaning,
Reflecting that essential
principal.
er” —and the
(or
past
receipt
present)
accommodates
and future
statute
both
receipt
something
pecuniary
value.
prospective
understanding.
In
own
confirm that
This Court’s
decisions
ClauseU,
aggravating
supra,
factor encom
we made clear that
receipt
passes
arranged completed
expectation
and the
both the
(“On
clause would clause, nugatory. is because rendering thus the first clause That future, present, “expectation receipt” one’s of could include both a past expectation. “expectation” could involve an based or It also More is that under arrangement. on a contractual troublesome interpretation, robbery burglary or murders and the Court’s all obtain, obtained, any planned had murder where the defendant benefit, might any how thought he obtain financial no matter actions, slight or immaterial to the defendant’s would become death-eligible. expansion such an be Recognizing that would limitless, virtually majority then the factor endeavors to limit Nevertheless, “expectation.” its of under initial and basic inter- types pretation, those of cases on their be death- face would statutory eligible. limiting comes Its of the factor not from the language legislative history apprehension or the but from its own that, interpretation, of constitutional constraints under Court’s statutory clearly would invalidate the factor on overbreadth grounds. interpretative begs route is the obvi-
The Court’s tortuous and statute, language of plain ous issue of whether the based understanding, engenders interpretation common that is both appropriate reasonable and constitutional. The sensible and inter- death-eligible pretation of the clause is one that second makes who the murder as for” either “committed consideration past receipt something or current of of value or for the value,” is, “expectation receipt anything pecuniary of the receipt anything pecuniary future In other of the value. words, sensible, statutory if language, in accordance with its meaning killings in plain, that it covers those which denotes persons corruptly agreed money equivalent or its two have committed, payoff occurring murder before or have a either after the murder. context, c(4)(d) statutory
Viewing in its aggravating factor factors, aggravating further under- particularly in to other relation First, interpretation. every other the flaws the Court’s scores only that renders a aggravating factor contains one core element majority’s death-eligible. The conclusion that murder conviction c(4)(d) this factor are “distinct” means that the two clauses factor, other, statutory any reality unlike is in two aggravating containing separate triggering with dual mechanisms factors two standards. c(4)(e) *52 c(4)(d)
Further,
conjunction
with the
the
factor read
deficiency of
con-
highlights the
the Court’s
aggravating factor
c(4)(e)
death-eligible
factor makes
those defen-
struction. The
by payment
commission
“procured
of
offense
or
who
the
the
dants
anything
pecuniary
promise
payment
of
of
value----” N.J.S.A
of
c(4)(e).
c(4)(d)
Thus,
encompasses
person
the
the
factor
2C:11-3
c(4)(e)
encompass-
to kill —the actual killer —while the
factor
hired
principal.
person who hires the killer —the
State
es the
Cf.
(1991)
Marshall,
(upholding
sen
123 N.J.
In death-eligible murder. by definition of what constitutes the basic by a as one committed capital “c” defines a murder Subsection homicidal “who committed the purposeful-or-knowing murderer conduct,” a murder- clearly which includes by his own [or her] act contemplated does so as hired to kill the victim and who er iswho c(4)(d). death- “c” also renders by aggravating Subsection pro- accomplice eligible by one “who as a murder committed by payment promise or of of the offense cured the commission 2C:11-3 c. anything pecuniary of of value.” N.J.S.A. payment payment anything pecuniary of “payment promise of of The or c(4)(e) com- aggravating factor for a murder parallels the value” arranges procures—the murder mitted one who hires — statutory or after it occurs. The pay for the murder either before replicate definitions death-eligible murder thus definitions of a they aggravated because are contract of the murders that are understanding statutory scheme reinforces the This murders. c(4)(d) requirement part statutory of the second “consideration,” something “еxpectation” of imports which value, “promise payment.” pecuniary [its] entails the statutory history both the factor and the legislative supports the conclusion that murders death-penalty act further they gain financial are based on that are distinctive because essentially in nature in order to be must be contractual reward *53 act, language L. history specific of the of the death-eligible. The Farmer, Jr., 111, sparse. The quite is See John J. c. Jersey, 26 Hall Death-Eligibility in New Seton Evolution of (1996) 1548, 1569 (noting Legislature in that the debate the L.Rev. punishment, not on largely adopt capital focused on whether act). Despite the interpretation of the the structure or the either however, relevant history, all the of an extensive absence example, For interpretation. background contradicts the Court’s Russo, bill, sponsor, public hearing the Senator only in the on c(4)(d) hire” factor. the murder for that factor “is noted Judiciary on Senate Hearing Committee Public Senate Before ”). (Feb. (Death 26, 1982) (‘Hearings on S. 112 Penalty), at 14 Stier, who lawyer Attorney General’s office H. at the Edward bill, Although the Court labels that helped agreed. Ibid. draft shorthand,” at ante as a mere “verbal to the factor reference significant clue in exchange is a at A.2d nevertheless legislative determining intent.
Furthermore, general history in demon- legislative act’s very in it its intended to be narrow strates that drafters abundantly implications. Russo made that clear: Senator Court bill in accordance with the United States Supreme is drafted Basically, guidelines in the Court case that render constitutional punishment Supreme capital legislation [Gregg that has so It follows somewhat the form ] that declared. reinstating However, in 35 states. it is the death some been penalty passed go along— I out number of that will as we stricter in a instances point probably legislation it broad states. many It in the sense that is not as as the is stricter legislation does. It not cover as as some other does many people [Hearings 1.] S. at supra, categories, not it to two that ... that this bill apply only My purpose sponsor categories justified I it to but want to limit two more, couldn’t be perhaps have____ argument not that should be I make the others don’t always just go subjected that far this time. You I don’t want to to the death penalty. argument I, as to extend to many can make know, people— you really go time. than at this do want to further any sponsor, 17.] [Id. at legislation, under that doesn’t bother If the death this some penalty people escape gets it that shouldn’t. I am worried about is if somebody perhaps me. What 18.] [Id. at Jersey statute was Thus, made that the New Russo clear Senator scope. interpretation initial The Court’s meant to be narrow c(4)(d) kill persons who applies it all factor —that intent, because sharply with monetary gain discordant —is monetary gain, clearly kind of but kill fоr some most murderers apply to most murders. penalty not intended to was death Rather, only for the most penalty to be reserved the death engrafts majority blameworthy. limits that the culpable and respects, application in some but factor serve to narrow its on the clearly expressed the limits limits do not coincide with those history. legislative implied in the statutory language strongly salvage from solely to the factor Rather, they are fashioned *54 96 turn, which, only vulnerability, exists because
constitutional
interpretation.
incorrect initial
awkward and
Court’s
scope
limited
statements about the
Besides Senator Russo’s
act,
Legislature
death-eligibility
we also know that the
under
Jersey’s
aggravating factor. New
rejected
pecuniary-gain
a broad
states,
statute,
based on the
death-penalty
like those of most
1962 Model Penal Code. The
laid out
broad framework
Code, however,
suggest-
proposed Model Penal
contains broader
pecuniary
“The murder was committed
aggravating
ed
factor:
44,
153,
n.
96 S.Ct.
gain.”
Gregg Georgia,
428 U.S.
194
See
(1976)
ALI,
859,
2909,
44,
(quoting
44
886 n.
2935 n.
49 L.Ed.2d
1962)).
210.6(3)(g) (Proposed
§
Official Draft
Model Penal Code
flatly rejected
language, presum-
our
that
The drafters of
statute
Nevertheless,
scope
statute.
ably in order to narrow the
today
language right back into the
reads the broad
the Court
c(4)(d)
55,
(terming
“the
at
The Court asserts that the
gave to a similar
sumably
interpretations
that Florida
aware
factor,
gave to its factor.”
interpretations Arizona
as well as the
however,
55,
presumption,
ignores
Firm
today.
recently recog-
as the Court does
preting the statute
We
enjoined
penal
are ...
to construe
statutes
“[w]e
nized that
strictly
ambiguous language against
and to construe
State.”
(1993)
Galloway,
631, 658-59,
State v.
133 N.J.
(citing
Instead of
the
with
statute,
majority broadly interprets
scope
tailored
the
the
of the
virtually
configuring
factor and then
berates the drafters for
such
guise
redeeming
In
the
a broad —and unconstitutional —factor.
factor,
majority is forced to
unconstitutionally
broad
the
the
“adopt a
statutory language and
disregard
own
of the
its
rendition
gain
Ante at
pecuniary
factor.”
limiting construction of the
interpretation,
guidance for its “limited”
at 1314. To find
695 A.2d
capital defendant
language
that a different
the Court looks to
context some three
different case and
a different
used
The
56 &
B.
the
validity
interpretation
Court’s
of
assuming
Even
the
the
in
c(4)(d) factor,
jury
to instruct
the
accor-
the trial court failed
did not instruct
the
interpretation.
The court
that
dance with
find, beyond
unanimously
a reasonable
they must
jurors
that
the
doubt,
killing
prerequisite
the essential
[was]
that “the
jurors
they
gain,”
instruct
that
receipt
nor did the court
of the
receipt
killing
precondition”
that
was
“fatal
must find
only
jury
instead told the
proceeds.
court
of the insurance
c(4)(d) factor, it “must
that,
find
existence of the
in order to
least,
that,
doubt,
find,
one
beyond
reasonable
unanimously
Bowman,
had,
murdering Theresa
for
purposes John Chew
only
The court’s
additional
proceeds.”
the insurance
was to obtain
guidance:
little further
provided
factor
explanation of that
not have to be the defen-
[Although
does
of the insurance proceeds
the reсeipt
killing
of such
Bowman,
receipt
proceeds
for
Theresa
dant’s exclusive purpose
just
because of
defendant,
benefit
to the
more than
an incidental
must be much
gain
must be
That
is,
pecuniary
Bowman’s death.
expectation
Theresa
and not a result of it.
murder,
of the
or one of the causes
murder,
cause of the
receipt
that the
of the
repeated pronouncements
The trial court’s
the reasons for the
merely be one of
benefits could
insurance
ruling today, which
with the Court’s
killing
plainly inconsistent
connection.
requires
more substantial causal
a much
dismissively,
potential
nor its
cannot be treated
That omission
c(4)(d)
First,
factor
prejudice discounted.
serious
Second,
overemphasized
be
that
it cannot
aggravating factor.
sole
votes,
the existence of the catch-
jury, by varying
determined
jurors
that factor
Most of the
found
mitigating factor.
all
(1)
circumstances,
defen-
mitigating
viz:
by ten
was established
(2)
culturally deprived by
parents;
his
emotionally and
dant was
mental and emotional distur-
from a serious
suffered
defendant
(3)
by
in a violent home
youth;
defendant was raised
as a
bance
(4)
by his
was often abandoned
irresponsible parents;
defendant
(5)
him
that he was
parents raised
to believe
defendant’s
parents;
(6)
life;
in
worthless,
abuse later
him to substance
which led
in
inappropriate
sexual behavior
parents engaged
defendant’s
(7)
children;
protect
parents failed to
defendant’s
front of their
relatives;
harm,
abuse
including
physical
and
sexual
him from
(8)
ignoring the educational
family
frequently,
moved
defendant’s
(9)
children;
play
impor-
continues to
needs
(10)
life;
any
daughter’s
other
eleven-year-old
in his
tant role
jury,
determining
not listed. The
mitigating circumstance
aggravating
outweighed by the sole
were
circumstances
those
understanding
factor
that was
factor,
did so with an
inaccurate,
misleading.
incomplete,
any
case and
criminal
jury instructions are essential
Proper
Bey, 112 N.J.
capital
State v.
absolutely
in a
case.
vital
are
*58
(1988)
denied,
II),
1164, 115
(Bey
548 A .2d887
cert.
513 U.S.
(1995).
S.Ct.
II denying Defendant contends that the trial court erred his request “accomplice” during for a definition of the term the court’s conduct,” charge requirement on the element of “own a basic for determining death-eligible. agree whether the murder was I ground would vacate his death sentence on that alone.
A person
eligible
penalty
convicted of murder is
for the death
conduct,
only if
by
procured
he or she murdered
his or her own
by payment
promise
payment
anything
the murder
or
of
of
of
value, or,
pecuniary
trafficking
as the
of
lеader
a narcotics
net-
work,
by
promise
or
commanded
threat or
solicited the commis-
jury’s
of
sion
the murder. N.J.S.A 2C:11-3 c. The
determination
death-eligibility “trigger”
present
of whether a
is
occurs subse
quent
guilty
to a
of
is
determination
whether a defendant
of
murder;
purposeful-or-knowing
simply
it ‘Is
irrelevant
to the
question
guilty
purposeful
knowing
of whether defendant is
of
Gerald,
40, 100,
murder.” State v.
99, quotations A.2d and 549 792 may consequently, be convict vicariously coconspirator, or a liable murder, death-eligible. is not of but ed a defendant 2C:11-3c, of murder for see N.J.S.A. hire, sole With the exception subjected to of vicarious cannot be liability is based on theory whose conviction proceedings. conviction[s] rest[] on those murderers whose Only death-penalty the homicidal act their who have committed their status principals —those another to commit the crime may have hired own conduct —or on feet they face the death penalty. [Id. 792.] 549 A.2d 100, at directly participated ‘actively and sum, must have In “defendant act, i.e., injuries from which the infliction in the homicidal 523, 561, McDougald, 120 v. N.J. 577 the victim died.'” State Gerald, 97, (1990) supra, 113 N.J. at 549 A.2d (quoting A.2d 419 792).
Further,
submission of an ac-
rational-basis
threshold for
low,
only “minimally adequate”
requiring
evi-
complice charge is
Pennington,
v.
State
theory.
119
supporting
accomplice
an
dence
supra,
In
this Court
N.J.
In this defendant’s accomplice, may have worked with another as that defendant jury to conclude as much. provides a basis for the record testimony inculpating meager and evidence defendant was Charette, contradictory. Crystal example, provided first brother, then, learning potential false alibi for her after her, charges pending against murder story approxi- altered her times, mately recalled, part, six with facts that she for the most Further, “high.” aspects when she was certain Charette’s refuted, testimony strongly were such as her she belief that heard car, the victim scream as defendant exited the when even the *60 police impossible believed that that was in because of the manner by which the victim’s throat was cut. Other made statements defendant, exculpatory explanation Charette were such as her daughter of events to her approached that defendant her car from the hotel rather than the Corvette. credibility questionable: of other witnesses also was Helen
Bowman, occasion, who had sexual relations with defendant on one implicated by was potential the murder Charette and faced a incident; charge resulting Chew, murder from the Robert who defendant, relationship had may a strained with have been moti- gamer early prison, vated to lie so that he could release from and State; may George have lied about his deal Tilton with the was by receiving money fired defendant without that defendant him inconsistently owed and testified with Robert Chew about the prior telephoning police nature of their contact to about the murder; lover; Randy Charette, Findeis Bowman’s was David vaguely who testified that defendant informed Charette about an “scam,” upcoming prior history also admitted of strained rela- defendant; only Seabasty tions with and Officer saw the back of supplemental report someone’s head and did not file a based on Moreover, accurately points his conclusion. defendant out that physical linking there no him the murder. was evidence to theory supporting The record does contain evidence of a drug resulting failed deal in murder. That evidence is based on confession, beeper belonging to a man defendant’s number (which belatedly investigated); from Newark testi- named Joe son, Chew, mony by showed defendant’s Robert that defendant Jersey intended to sell New him kilo of cocaine that defendant approximately testimony his that a kilo of cocaine was worth $28,000; him that testimony Randy that Bowman told Findeis going pick up a “settlement check” were to she and defendant that, murder; $28,000 testimony while at night of her worth leaving Woodbridge, prior to for Bowman criti- Charette’s home cocaine for Helen offering trade some cized defendant marijuana, enough had more than Borden’s because defendant nose, share; found in blood and the cocaine Bowman's cocaine stream, bagged her socks. additionally evidеnce argues that “since there was
Defendant attempted kill to hire others to presented that the defendant Bowman, possibility he in the [also] a was involved there is murder, killing.” The planning of but not the actual evidence testimony George Tilton and refers is the which defendant repeatedly them to kill defendant’s son that defendant solicited proceeds. Both men testi- Bowman for a share of the insurance Nonetheless, they fied that had the invitations. refused may permits inference have tried to evidence that defendant eyewitness person, especially given who stated hire a third night whom he saw in the Corvette the that it was *61 of the murder. minimally warranting the submis- adequate
There evidence was charge one of two theories. There accomplice sion of the on either key put by the State and to its case that strong evidence forth was to kill repeatedly attempted had to hire individuals defendant wanted Bowman Bowman. All the evidence that defendant of proceeds sup- the insurance also so that he could collect dead to kill her in theory defendant had hired someone ported the proceeds. The fact that exchange portion of the insurance for nearly identical to that Bowman was murdered a manner by seeking to hire Tilton lends addition- proposed defendant when testimony of important, though, is the Mecalco support. al Most night the murder person the Corvette the of that the he saw emerg- together, there than Taken was someone other defendant. explanation es from the evidence at trial a rational alternative of the murder. could based on defen- omission not have been harmless agreed death-eligibility having pay
dant’s theoretical
for
to
some-
request
accomplice charge
one
commit the murder. The
placed
jeopardy
not
would
have
defendant
additional
penalty
having paid money
death
based on his
to have Bowman
only
killed because defendant was indicted
on the basis of murder
by
Every
specify
his
must
own conduct.
murder indictment
3:7-3(b) (“Every
triggering element. R.
indictment for murder
N.J.S.A
specify
by
act
defined
shall
whether the
is murder as
(1)
(2)
(3)
2C:11-3(a)(1),
alleged:
or
and whether the defendant is
(2)
by
to have committed the act
his or her own conduct or
to have
procured
by payment
promise
of
of
the commission
the offense
value----”)
added).
payment,
anything
pecuniary
(emphasis
of
present
Because the State did not choose to
the hire-for-murder
jury
theory
grand jury
grand
did not indict
and because
theory,
guilt-phase
defendant on that
State could not ask the
trigger.
jury
death-penalty
to find that
As observed
majority,
jury
if
that Chew did not kill
“[e]ven
believed
but, rather,
look-alike,
Rogers
Kenny
hired the
it could
Theresa
consent,
find,
procuring
the defendant’s
factor
without
charging it.” Ante
Because the theory accomplice liability justified explana it and because In theory, harmless. tion of that the error cannot be considered Brown, supra, 138 N.J. 651 A.2d the trial court omitted *62 jury. noted accomplice charge recharge in a to the The Court Id. prejudice.” at potential for had created “the
that the omission
real,
viz:
potential
That
Ill posed by at trial of the out-of- A issue is the admission serious Crystal inculpat Borden and Charette court statements of Helen majority The determines that those ing in the murder. properly into extremely damaging statements were introduced rejects contention that the statements defendant’s evidence evidence of the not have been admitted substantive should 81-82, 695 offense. Ante at 1328. A.2d examination of to the commencement of the State’s direct Prior Borden, of his prosecutor advised the trial court inten- Helen examination, introduce, Borden’s and on redirect Charette’s tion to 23,1993, January day prior statements obtained on consistent Although and Charette’s first of defendant’s arrest. Borden’s January night exculpat- police made on the statements to statements, defendant, 23, they January provided both ed testimony, inculpated defen- largely consistent with their trial anticipated strong attack” on Borden’s prosecutor “a dant. basis, and, he credibility, on that intended offer and Charette’s prior statements. Further- on redirect examination the consistent *63 more, have an prosecutor the that the witnesses did not indicated “improper giving statements. Defense counsel motive” when their statemеnts, objected prior consistent to the introduction of the stressing falsify if existed at the time the that the motive to given testimony time the statements were as well as at the presented, original proba- no additional statements would have warranting tive value their admission. prior issue the cross-
The court refused to rule on the to Later, testimony, examination of Borden. the course prior trial court ruled the consistent statement admissible because credibility. Specifically, of defense counsel’s attack on Borden’s pointed argument police “of the the court to defense counsel’s why feeding Helen Borden information that would be reason Indeed, change testimony.” she her the trial court felt that would good showing” “very defense counsel had made a that Borden had changed her statement. Charette, examination, during
Regarding Crystal her direct prosecutor testimony January she had made a elicited that on testimony her at trial. prior statement consistent with Charette police truth on testified that she had decided to tell the to “23, being I January ‘cause couldn’t take it no more.” She denied by police that it had been because of threatened and stated sleep she had her conscience and because she could not that prosecutor The then elicited information decided to tell the truth. plea agreement. about Charette’s examination, suggested counsel that Charette
On cross defense provide January her 23 statement because had been influenced thirfy-year prison term. Charette continued to of the threat of a statement, change her but deny she had been influenced to “easily by being told that she had been influenced she did admit jail thirty years.” go Defense police [she] could agreement plea and the counsel also elicited information about promised a noncustodial sentence fact that Charette had been Moreover, testimony. Charette admitted exchange for her on having high marijuana gave she her statement been when Charette, prosecu- January After the cross examination 23. recording of Charette’s play tape expressed tor his intention to January Defense counsel made on 23. prior consistent statement objections, permitted the previous the trial court his but renewed jury. play the to the prosecutor to statement statements, gave acknowledges they when those Court theft, *64 Borden, charged with and Charette was then both who they charged with murder obstruc- coxddbe understood Court, justice subject long prison terms. The to tion of however, bearing witnesses’ rejects critical facts those lie, tested observing simply that “cross-examination motives agree- by plea further motivated their the witnesses were whether police fed them with the details of whether the had ments and 80, A.2d at 1327. their Ante at 695 stories.” prior Jersey’s admissibility of consistent state- rule on the New 20, which stated previously contained in Evidence Rule ments was shall not be admitted prior consistent statement “[a] except express a to rebut an or credibility of witness support the charge against him —” That rule implied of recent fabrication containing requirement “that a temporal a interpreted was as not show that seeking prior consistent statement party admission a falsify any alleged before motive to prior statement was made Johnson, part State v. 235 on the of the declarant.” existed denied, 556, (App.Div.), 851 118 N.J.Super. 563 A.2d certif. (1989). A.2d 971 N.J. 1,1993, replaced by a July Rule 20 was new Evidence Effective 803(a). provides, rule The current that mirrored federal Rule rule pertinent part, that: following rule: statements are excluded by hearsay The (a) or who is a witness at a trial ... statement made person A previously by hearing, if declarant while it would been admissible made have provided testifying and the statement:
[********] (2) or and is offered rebut express is consistent with the witness’ testimony charge against or or influence the witness recent fabrication improper implied motive____ 803(a)(2).]
[N.J.R.E. explains: rules Commentary accompanying the evidence 801(d)(1)(B) 803(a)(2) analogue in and has no prior follows Fed.R.Evid. N.J.R.E. although governing is to the it related rules hearsay exceptions, New Jersey 803(c). It was discussed at N.J.R.E. law for “fresh common exception complaint,” of those statements to allow the use as substantive evidence prior order adopted on the issue would be admissible also under N.J.R.E. purely of a witness which attacked. if his or her was credibility to rehabilitate witness is, credibility, (1996).] at 776 Evidence, Rules [Biunno, New Jersey rule split over whether the federal Although federal courts were the United States temporal requirement, contained a In Tome v. United Supreme provided a definitive answer. Court States, only prior unequivocally held that Supreme Court alleged to fabricate made motive consistent statements before 165-67, rules. 513 U.S. under the federal arose are admissible 574, 582-83 696, 705, L.Ed.2d S.Ct. majority’s holding persuasive. As the Court Tome testifying charge of explains: logically relevant to rebut a “[T]o be motive, prior improper consistent under an influence while point at which the must have been made before the statement improper motive or influence arose. story fabricated or the *65 Otherwise, nothing charge.” to rebut the prior statement does 1327-1328; 80-81, States v. 695 A.2d at see United Ante at Cir.1995) (2d 52, Forrester, (following Tome and 64 60 F.3d police made to the because excluding prior a statement she drafted the the truth existed before witness’s “motive to shade statement”). addition, foreign jurisdictions most In contested See, e.g., People v. appear followed the Tome rationale. to have 707-08, 704, Bobiek, 239, 648 N.E. 2d 207 Ill.Dec. Ill.App 271 .3d 804, 571, denied, 160, 163-64, 209 Ill.Dec. appeal 162 Ill.2d Commonwealth, 510, (1995); 905 S.W.2d Fields v. N.E.2d 344 (R.I.1995). Haslam, A.2d (Ky.App.1995); State prior statements consistent The Court concludes that is explains “[t]his It that admissible. Borden and Charette were the substan- nuances between plumb in not the case which Given the statements. prior uses of consistent supportive tive and no statements, not err among the court did
relationship the several A.2d at Ante January 23 at admitting the statements.” disagree. I 1328. recognized, “in some cases Supreme
As States Court the United fabrication, particular a may difficult to ascertain when it be 165-66, 115 Tome, influence, supra, 513 at U.S. or motive arose.” argues implausibly 587. The State 130 L.Ed.2d at S.Ct. lie until motivations to did not arise and Charette’s that Borden’s plea agreements. actually into The evidence they entered demonstrates, however, January both Borden that on facing potentially mur- they were were well aware that Charette pending charges. a theft Borden also had der and obstruction immediately prior to the state- charge. It is uncontested that ments, they thirty years of women were told faced both their motivation to lie arose with The declarants’ incarceration. jail facing charges and time they criminal were realization alter their predicament their was to only way out of and that prior January 23 state- That occurred realization stories. ments.
Moreover, admitting was not those statements the error credibility was crucial of Borden and Charette harmless. The stories, fact, jury their defen- In had the not believed the case. Indeed, credibility was convicted. their dant would not have been initially had hotly Borden Charette issue. Both contested prosecutor exculpated defendant. The provided statements inculpating advantage by having their ver- an enormous received influence of repeated numerous times. The sinister sion of events testimony jury’s perception the facts well- repeated understood: extra-judicial, permitting statements of a witness is unusual consistent role caution____ will witnesses] it credibility should be with Otherwise one; applied same than more the number of times he has story upon repeated “depend upon the truth of the itself.” *66 story Griffin, N.J.Super.
[State (App.Div.1952) (quoting 581, 587-88, A.2d Am.Jur., 819).] § “Witnesses,”
Ill pros- insidiously augmented statements prior The consistent those statements impact of prejudicial ecution’s evidence. against defen- of the case gauged against the weakness must be in-court state- dant, Borden’s and Charette’s importance Ad- ments, credibility of the witnesses. general lack of reasonably have had prior statements could mission of the Thus, January 23 jurors. the admission effect on the requires reversal of defendant’s not harmless and statements was murder conviction.
IV murder of defendant’s warrant the reversal Strong reasons I dissent. and death sentence. conviction opinion. joins in Part IA of this Justice STEIN PORITZ, and Justices For Justice affirmance —Chief O’HERN, POLLOCK, and COLEMAN —5. GARIBALDI HANDLER —1. reversal —Justice For part— Justice part; reversal in For affirmance STEIN —1.