State v. Dixon

593 A.2d 266 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW DIXON, v. PHILLIP DEFENDANT-APPELLANT.

Argued July November 1990 Decided 1991. Klein, II, Deputy M. Public Paul Defender Marcia Blum, Defender, Deputy argued the Assistant Public cause for Caraballo, Defender, appellant (Wilfredo Public attorney; Klein, Blum, Wyk, Paul M. Marcia and Claudia Deputy Van II, briefs). Public Defender Barron, Deputy Attorney General, argued Chana the cause respondent for Tufo, Attorney J. Del General of New {Robert attorney). Jersey, opinion

The the Court was delivered O’HERN, J. capital

In case the does disagree this State that the death sentence must be Point XIII vacated. of the State’s brief point: summarizes the charge during Defendant contends that the trial court's with penalty phase jury’s mitigating to the consideration of factors was erroneous that it respect alleged mitigating an find factor required before it unanimously agree charge could be considered. State is constrained to that the court’s juror finding to the need for before the existence of a respect unanimity mitigating factor violates the enunciated in Mills v. principles subsequently (1988), 486 U.S. S.Ct.

Maryland, State v. 100 L.Ed.2d 384 [108 1860], (1988). 112 159-60 Bey II, A.2d 887] [548 [Footnote omitted.] Acknowledging that respect defendant’s death sentence with must, vacated, underlying therefore, murder be capital-sentenc seeks to have us remand the matter for a new ing proceeding unless the Court determines that the murder eligibility. conviction does not death establish circum stance, non-capital the State asks that the conviction of murder resentencing affirmed and the case be remanded for on the imprisonment, murder count to a term which murder is thirty years thirty between with a years life minimum of Defendant, in possibility parole. of 2C:11-3b. without N.J.S.A. grounds the that challenging to the death sentence on addition required unanimity respect charge juror court’s with the trial factors, mitigating challenges to the the asserts numerous underlying and the related offenses. We convictions murder death find for murder did not establish conviction respects. eligibility, that conviction in all other but affirm therefore proceed, election so we Pursuant the State’s non-capital imposition of murder remand the cause for sentence.

I thirteen-year-old murder of a The case arises from brutal moment, her last she home from school. To girl as she walked stronger The marks she left against her assailant. fought his presence of fibers drawn from body his and the telltale students, testimony of fellow clothing, along eyewitness assailant, defendant, Phillip Dixon. her against the case sealed 'on from school young girl, Tanya, walked home As the fellow afternoon, several her February Friday top of” in an area of under- “on her students saw defendant homes. children’s school and along path between the brush although the (The Borough Woodlynne, was in the area School.) Although first the High at attended Camden children nothing have thought might there been students other two, suspi- their an encounter between more than innocent The Tanya not soon arrive home. deepened did cions when they had seen of the fact that Tanya’s alerted mother children defendant, eighteen-year-old fellow student an Tanya with defendant’s house Her mother went to high school. Tanya, he not home. was search of but An intensive missing child. police were informed of yards one hundred body approximately disclosed her search partially- by the students. Her place sighting from the into through underbrush dragged body had been nude body lodged Her creek. was the water underneath a car seat Only and other discarded refuse. a foot showing above surface of the water. victim,

After his encounter with the defendant went to his home, changed cousin’s he where his clothes. He claimed that fight he had been in a bring and called his brother to change afternoon, of clothes. Later that defendant returned home, where his mother told him that the victim’s mother had asking Tanya. been there about again changed Defendant his clothes, evening Philadelphia. went with his brother to night grandmother’s Later that he Hemp- went to his home in stead, Long Having by Island. been informed the school chil- Tanya defendant, dren that had last been seen with police put all-points out an They alert for him. soon learned that he Hempstead grandmother’s was in at his Woodlynne home. The police Hempstead police, called the who arrested defendant on afternoon, Sunday February 1985. gave

Defendant an oral Hempstead police. confession Hempstead A officer summarized defendant’s statement as Friday walking follows: On afternoon defendant was with his mother to a local bank. He money remembered that he needed later, get to see a movie so he money. returned home to some returning, walking along path young While he was a and saw a girl. her, pocketbook. He decided to take her He chased her, grabbed ground and forced her down to the in a “weeded area,” point screaming at which she struggling. was [sic] eventually flipped She onto her stomach and he straddled her with his knees. But she screamed as he tried to take her pocketbook. him you, She looked at and said “I know I’ve seen scream, you.” spike As she continued to he reached for “a or a lying ground nail” on the and hit her on the head with it. why girl did not Defendant know he struck the and could not pressure remember the amount of he used or whether the nail penetrated girl’s girl had head. He said that the had been ” screaming Midnight.’ “like the movie ‘10 to When the movie, said, officer said that he had not seen the defendant “[I]t girl kept like in movie when the in the movie scream- was stop screaming guy ing and she and the stabbed her.” wouldn’t Tanya indicted grand jury A defendant for the murder of as well, offenses, variety including robbery, of other as for contact, aggravated hindering apprehension (by criminal sexual evidence, concealing body, destroying fleeing), and her other offenses. various trial, produced

At the State the school children had seen who her, top apparently engaged in a Tanya, defendant with They camouflage jacket. recalled that he wore a scuffle. seeing drag Tanya into Another witness described expert A fiber described the the woods towards water. being body found on her identified with defendant’s fibers imprint at the scene that matched cap. A sneaker was found A sneakers seized at defendant’s cousin’s home. the Nike pointed pathologist said that the victim had been struck brain, Tanya’s pierced head had her object, that the blow to blow, although from the she was that death was inevitable body submerged her under the water. probably alive when Midnight” “10 segments from the movie were Two scenes or perpetrator in dissimilar circumstances was shown which a stabbing screaming young woman. He the stand on his own behalf. denied

Defendant took murder, asserting that he had never he had committed the and that on the date of the crime given alleged confession Army jacket red suede Puma wearing a blue and he had been interrogated police officer who had Hempstead The sneakers. him had had told that he been him testified that defendant Friday afternoon. wearing those clothes the counts defendant of most of but jury The convicted sentencing proceeding, the State At the robbery count. that the murder had involved charged aggravating factors: two torture, depravity; and that the murder aggravated battery, or apprehension. jury unani- committed to avoid had been imposed a sen- mitigating factors and mously only found two appeals right Defendant to us as of under tence of death. Rule 2:2-1(a)(3).

II Issues Pretrial and Petit Juries Composition A. of Grand County jury-selection contends that the Camden Defendant rights his to a drawn from a fair cross- system violated law, community equal protection and to and section of statutory right randomly-drawn represent- a also violated his jury, provisions in violation of the 2A:70 ative N.J.S.A. and :71.

1. The Constitutional Issues challenge, evaluating briefly In the constitutional we Ramseur, principles set forth in review State N.J. 123, 215-38, (1987). restating princi 524 A. 2d 188 Without detail, may by stating that under the ples in we summarize grand petit guarantees, selection of both and constitutional any discriminatory purpose from taint of juries must be free pools represent “fair jurors must drawn from community.” cross-section of prove equal-protection either an or a fair-cross-section To claim, (1) identify constitutionally-cognizable defendant must is, being singled out group, group capable for discrimi- treatment; (2) underrepresentation natory prove substantial (3) time; discriminatory significant period of show over a showing by purpose by strength of his statistical or either procedures showing racially the use of non-neutral selection raised support the inference of discrimination substantial Ramseur, supra, underrepresentation. 215-16, 524 A.2d 188. sum, cognizability group primarily focus on the we underrepresentation, substantiality of the question, possible causes of it. appeal, accept we purposes

For of this shall the asserted- (Blacks, Hispanics, Puerto ly underrepresented minorities Ricans) test. also prong would meet the first of the We shall appeal, in accept, purposes of this the statistics set forth respect representation those brief with defendant’s The data are as follows: minorities. MINORITIES

UNDERREPRESENTATION OF Camden County REPRESENTATIVENESS DATA STANDARDS OF Stat. Qual. Sign. Pool Absolute Pop’n. Comparative (%) GROUP_(%) (%)_(%)_(sd)_ 3.8 28.42 2.27 13.37 9.57 Blacks 2.59 .93 2.34 71.56 3.27 Hispanics 82.26 3.28 .47 2.18 Puerto Ricans 2.65 meaning of various explained the those In Ramseur we 219-27, A. 2d representativeness. standards except simplest repeat shall them here We 188. disparity measures the difference between Absolute terms. general population and subject group in the of the proportion is, pool, qualified list. Com proportion its using figure by on that the absolute- disparity parative builds magni constructing figure a ratio to measure disparity population size. disparity given difference tude disparity fifty-percent in a four-percent absolute example, a For comparative disparity, eight-percent represents an population disparity popula in a four-percent absolute that same whereas disparity. fifty-percent comparative percent eight is tion of likely register more standard is comparative-disparity The group, smaller groups. underrepresentation of smaller approach, The third significant any deviation. is the more aspects test, likelihood significance measures the statistical randomly. operate That test do not process of the selection statistician assumes analysis entirely statistical which an process measures the neutrality in the selection absolute expected. In Rams from the likelihood of deviation statistical jury-selection process eur, following example. The gave the we being compared can be likened groups are in which two slips paper of of population of one thousand filling a box with a grey, and pink and four hundred are six hundred are which slips. hundred randomly sample a of one having someone select sixty and the pink slips of would be expected number is, any in slips forty. be That grey number of would expected probability drawing of a sixty percent drawing there would be selecting grey forty percent probability of one. slip and a pink However, surprised if the number of would statistician measure expected. from the Statisticians pink slips deviated them to tell whether by a formula that enables that deviation expected as to demonstrate the so far from the the result is complex by chance. A mathematical was not random or result example, For in that standard deviation. formula determines sample, expects a statistician one-hundred-slip the case of plus slips. or minus 4.8 deviation would be that the standard Ramseur, omitted, supra, 106 at 221 n. (Calculations see yield only 44, 188.) drawing of a were to 2d If the result 524 A. approximately six standard pink slips, that would be thirty (6 4.8) expected. A statistician away from the deviations X three more than two or standard devia that a result assumes suspect. expected would be tions from respect underrep submitted with In this case the statistics disturbing except respect minorities are not resentation of Hispanies and Puerto Ricans. comparative disparity of Ramseur, [dealing with under- “if these cases As we noted thread, a common it is that a groups] have representation fifty percent strong evidence disparity well over comparative under the sixth and four underrepresentation cognizable 220, (quoting 524 A. 2d 188 teenth amendments.” 370, (Ct.App. 692 P.2d Lopez, 107 Idaho 1984)). concerning comparative disparity under- respect

With Ricans, Puerto we are satisfied representation Hispanics underrepresen does not demonstrate a constitutional that that population very percentage small of the of the tation because disparity represented. comparative A of about pool thereby adequate such under- percent may may or not be to show fifty part group on the size of the depending representation, supra, 107 Idaho at 692 P. 2d at Lopez, question. State magnified disparity when converted The absolute becomes 377. disparity comparative because to a measurement sample the used. smallness of inefficacy of the statistical-significance test confirms the

The Hispanics and figure. In the case of comparative-disparity Ricans, significance discrepancy of the the statistical Puerto from the three standard deviations very to the two or close constitutionally suspect. not expected and thus is themselves to straddle were those numbers But even would look to underrepresentation, we of substantial borderline showing to deter surrounding the statistical the circumstances Generally speaking, when import. full constitutional mine its constitutionally found to be systems have been jury-selection showings of of statistical on the basis underrepresentative voting criteria such objective selection underrepresentation, case, licenses, are used in this as were registration and drivers’ 225, 524 Ramseur, supra, present. See State period addition, at the time have looked courts A. 2d 188. goes inquiry That alleged. are over which violations case, as in Rams In this history of exclusion. of a existence survey jurors of 500 only one eur, based on we have evidence survey fail to cover a mailing. only Not does a 1984 from apparently made to time, were reforms significant period of but resulting rendering data and following year, system partly at least outdated. conclusions shown, do disparities we nature the borderline Given dimension. rise to constitutional inadequacies that not find Statutory Issues 2. The requires assignment judge 2A:70-4 N.J.S.A. registered and holders of lists of voters county merge single from which all compile a list vehicle licenses to motor jurors shall be selected. objections that he asserts demon- specific makes

Defendant requirements statutory such a deviation from established strate purposes of this must dismissed. For that the indictment (The of the record. appeal accept shall defendant’s version we any proceedings dispute these be free collateral State will assertions.)

(1) Zip mailing question- In the Elimination of Codes. spring eight zip seven or codes were naires before population lists. The within eliminated from the drivers’ license represented County zip for those codes over one-fifth Camden county population. jury-selection The various of the whole zip codes were eliminated agreed officials that most of they partially that fell outside of embraced areas because County. Camden

(2) Duplicates. This is the “match- Failure to Eliminate Gerald, merge” problem that we described (1988). 40, 130-31, computers recog- fail to A.2d people voting names on or driver nize that some use different lists, resulting in at the same address. two “Jones”

(3) juror in History File Exclusion. Once a Camden has been another, put “history or the name is excused for one reason (as may disqualified at one time for juror file.” Often a who be attention pregnancy) qualified, could later but insufficient be eligible paid “history file” to restore names to defendant, result, many two-thirds The claims is that as as list. category ineligibility. eligible jurors of the are that (4) File. The inactive-voter file was used Inactive-Voter list, jury but the fact that one does not cull names from juror. eligible is not to serve as a vote does not mean one voting may are removed .from lists Although there be some who moved, there was an insufficient they have died or because followed, especially explanation why practice should be appeared on the motor- persons whose names in the case of vehicle lists. by

(5) points Defendant to inaction High No-Response Rate. high no- persistently in the face of a jury commissioners of the up to That means that response rate of 32% 32.8%. simply failed to questionnaires had been sent people to whom why they included or otherwise to show should be return them requires A directive juror from the lists. court or excluded assignment reported to the no-response rate above 15% judge.

(6) Disqualification. Defendant claims that Improper disqualified ju- questionnaires of non-retention of the received regard- conflicting testimony impossible to resolve rors made it (1) regularly allowed without documen- ing medical disabilities children; (3) exclusion tation; (2) of minor exemptions for care residents; (4) county exclusion who were of students That was described during summer months. teachers even to avoid very easy county residents making it set forth his compounds the other defects jury service and brief. 188, Ramseur, 2d we 524 A. supra, State v. statutory administrative discrepancies in or whether

considered the dismis necessitated respect selection directives with do there: “We repeat what we said an indictment. We sal of requiring dismissal state’s statute as not construe our breached, statutory commands are indictment whenever the intent the violations or or effect of regardless of the nature 231-32, 188. 524 A.2d them.” Id. at who committed of those exer is not to be dismiss an indictment judicial power and an plainest grounds, except on the clearest cised palpably or manifestly deficient unless indictment should stand (1979); 491, 501, Wein, 404 A.2d 302 80 N.J. defective. State (1952). We said Weleck, 91 A.2d 238 jury-selection regulations of our should warrant

that violations only they substantially a dismissal of an indictment “where objectivity randomness and of the selection undermine the mechanism or cause harm to defendant.” State v. Rams 232, eur, supra, 106 N.J. at 2d 188. A. petit respect juries, recognize of we

With selection by special played in fundamental role some circumstances the petit jury system justice may in our of criminal call improper proce reversal because of selection of conviction dures, prejudice. showing even in the absence of a of State v. 406, Kociolek, 400, (1957); .2d 417 A 567, N.J.Super. (App.Div.1981). Wagner, 180 435 A .2d1190 Kociolek, regular employed the trial court had one its requiring special panels, contrary criminal to a statute drawing forty-eight-member panel trial prior of a for murder. A majority agreed of the Court that violation alone would reversal, showing preju required have even absent a actual statutory requirement as “a dice. The Court described procedure imperative expression course to bar so waiver the defendant or his where the indictment is counsel 406-07, 417. for treason or murder.” 23 N.J. at 129 A .2d Wagner, supra, an even more blatant State v. involved provisions statutory governing violation of the selection petit juries required jurors’ from the names to be “[d]rawn box, N.J.Super. one at a time.” 180 435 A .2d 1190 2A:74-1). simply (quoting court N.J.S.A. trial seated ex jurors replaced first fourteen enter the courtroom jurors jurors rows by calling cused on other seated various by “going right row.” .2d 1190. down the Id. at A they plain Those are such and blatant violations of law that cannot be condoned.

But have rather than invid- what we here are inefficiencies suggestion any of the iousness. There is no whatsoever that failings any way intended to undermine randomness were Underrepresentation not de- jury-selection process.

239 by comparing representation fined the that “would have oc randomly” curred with the representation actual group of the jury. Rather, “underrepresentation on the proved, by must be comparing proportion group in the population total proportion grand called to serve jurors.” as Castaneda v. Partida, 482, 494, 1272, 1280, 430 97 U.S. S.Ct. 51 L.Ed. 2d (1977). addition, 510 In although defendant is indeed entitled to challenge have his array based on the and not the individual chosen, panel simply we note that of twelve-person panel actually chosen for the penalty phases, trial and two of the five men were black and two of the seven women were black. Of alternates, women, the four all one was black.

Although procedures obviously implicated used the ran- process, domness of the selection showing there is no they substantially When, undermined the principle. randomness as here, purpose of the impermissibly official’s action was not cognizable to exclude group, members of a the asserted statu- tory violations do not call for a dismissal of the indictment or a reversal of the interprets opinion conviction. Defendant calling court below as not improvement for a correction or deficiencies, in the noted but we are certain that the motion judge assignment who now sits as the judge intended his opinion to have that effect. When he said that the “Camden County corrected,” Selection Process had to be but that the Jersey Jury “deviations from the New Selection Statutes di- relief,” rectives do constituting grounds not rise to a level we are certain changes he intended that be made. sum, although may the noted deficiencies be considered technical, here, merely

somewhat more than as in 439, 469, Long, (1990), 575 A.2d 435 and State v. Gerald, supra, N.J. A. 2d there was no grand- petit-jury panels, evidence that the composed, representative were not community, any of the nor was there suggestion independence grand petit jury that the or had compromised. practices been None of these reduced a minori ty’s representation “impotence” or unreason- “restrict[ed]

ably petit jury comprise represent will possibility that the community.” Gilmore, ative State v. cross-section of (1986). 508, 529, The methods 511 A .2d1150 used were inject attempt no to undermine or invidious discrimina sense an goal objectively was an list tion into randomness. random juror substantially eligible pool. all sectors of the that reached Validity B. The of the Confession given he Defendant contends that was not full and warning right of his constitutional to remain silent as effective continuing opportunity that he a to he not informed had was right, he told he that and was never that could termi exercise addition, interrogation. although any nate he contends that questioning, his to right he was not informed of terminate attempting to that police had reason to believe he was exercise when, right having questions for a time and after answered statement, agreed a he to having after to make written refused sign anything. Hempstead police officers testified to a The change following telephone a marked defendant’s attitude grandmother, after which he was “not conversation his cooperative” and “somewhat hostile.” Defendant con became right his that his actions constituted assertion of tends and, obligation scrupulously to part of their remain silent rights, police should honor defendant’s fifth-amendment significance have an to ascertain the distinct made effort requested that he change in attitude. Defendant asserts also house, prevent request a have counsel at the station would questioning provid from him before counsel was police ed the of a part claim and is claim of ed. That raised below counsel, which discuss in Point ineffective assistance of we hereof, 259-262, 2d III(F) A. at 284-285. at infra suspect arguably amounts to When a makes statement rights, interrogating agent of Miranda an assertion susceptible of that construc- recognizes that the statement is tion, questioning concerning the crime should immediate- police inquire suspect of the ly and the then should cease officer interpretation about correct of the statement. Bey State v. II, supra, 112 887. 548 A .2d presents

Each side interrogation. a different version of the noted, afternoon, Sunday February 24, 1985, As Detective McLaughlin County police department Nassau was noti- teletype Woodlynne, fied of a Jersey, police from New department. teletype indicated that there awas warrant and set forth description defendant’s arrest of defendant probable and his location. Based on the information contained teletype, McLaughlin proceeded in the specified location. McLaughlin apartment house, When arrived at the he found open police the front door and other already present. officers uncle, McLaughlin spoke privately with defendant’s Robert Newbill, explaining sought that defendant was in connection McLaughlin, with a homicide. Defendant surrendered to who him, being handcuffed informed Newbill that defendant was headquarters, taken apartment and left the with defendant. McLaughlin rights testified that he informed defendant of his police right en route to the while station: that he had the silent, him, anything against remain he said could used right attorney, that he to an if had and that he could not one, attorney provided police afford an would be for him. At headquarters, defendant was taken to an office in the base- Alger Squad ment. Detective Martin of the Homicide was police McLaughlin notified. Newbill came to the station. in- talking formed him that defendant was to homicide detectives. if Newbill asked he could see defendant and was told that he According police, could not at that time. made Newbill securing attorney. no mention of an Alger interrogation. Detective conducted the He informed memory. rights produce defendant of his from He did not card, specifically and he concedes that he did not inform defen- right any questioning dant that he had a to terminate at time. speak having He if him asked defendant he could without attorney present. agreed speak an to him. At Defendant

242 provided the narrative of offense p.m., defendant about 6:00 Hempstead police officer that we forth summarized set in our facts. recital court, totality considering of the circum

The after trial stances, that defendant’s statements were properly concluded knowing intelligent of his voluntarily made after a waiver interrogation rights product and were not the constitutional overbearing of will. that in the defendant’s See State resulted 134-35, (State II, 112 A .2d887 must Bey supra, v. at beyond of the confession a reason establish the voluntariness doubt). able changed when his demeanor follow-

Defendant maintains that ing grandmother, his the officers should conversation with significance an effort the distinct have made to ascertain change change simply ignoring in his attitude instead of that continuing interrogation. police their testified that tense, agitated,” he “very very and that defendant became anything. It is not reasonable to construe refused to write questioning. cutoff of Here defen- defendant’s behavior as a rights. of his Included in those dant was twice informed spoke if with the warnings was information detectives, against be him. Defen- anything he said could used he that he arrested for homicide. That dant knew had been subject he specifically informed that was to the death was not not penalty disqualify the confession. Defendant was does juvenile age to a voluntariness determina- whose is relevant many it he was not told in so words tion. Nor was fatal that time, right any questioning he had the to terminate warning such a although obviously preferable it is warning, how specifically stated. It is the substance of ever, Eagan, that counts. Duckworth U.S. (1989); Melvin, 2875, 106 S.Ct. L.Ed.2d 13-14, (1974). he plainly Defendant told that 319 A .2d450 himself. right to silent not to incriminate had the remain Voir Dire C.

Defendant contends that the in this case voir dire inadequate right so that he was denied his to a fair trial addition, impartial jury. an In defendant contends that the preliminary jurors court’s voir dire instructions informed the say sitting in in they what needed to order to avoid this ease. prospective jurors questioned, they Before were were re- quired complete questionnaires provided the court with personal familiarity information about their lives or their defendant, counsel, witnesses; ability im- or their to consider partially presented; general ability and their evidence jurors. serve as by instructing jurors they

Defendant contends that how danger disqualified, would become the court created potential jurors feign position an some of the would excusable penalty serving capital in order to on this death avoid jury. objects particular portion preliminary He to a dire in which the court summarized the test: voir Adams-Witt are view is so broad and held that will You if only your firmly you disqualified the law at the close of the trial. not be able to follow instructions as to my concerning if views the death short, only they your penalty may disqualify you or to decide this case would substantially impair your ability fairly prevent on the evidence in this courtroom, based presented you impartially accordance with the law which the court will instruct you. 412, 844, Witt, Wainwright 105 S.Ct. See U.S. 469. 38, (1985), Texas, 448 L.Ed.2d 841 and Adams v. U.S. S.Ct. (1980). 65 L.Ed.2d 581 II, argues Defendant State v. Williams jurors (1988), gave potential 550 A .2d 1172 the trial court pro virtually preliminary dire instruction as the identical voir emphatically disapproved. We vided in this case and the Court effectively juror tells the there that an instruction that stated and what re answers could lead to automatic excusal what “unwisely potential juror put the sponses would avoid excusal legal she met the position determining in the whether he or 1 172. 550 A.2d requirements jury.” to serve on a Id. 244 prospective sixty-three jurors

Defendant contends that of the attitudes, questioned death-penalty their nine who were about execution,” scruples against to claim- were excused “due their ing they it had to hear for “said what the court told them death-penalty to them excused due to their views.” addition, quality of the In defendant asserts that the overall to their voir was insufficient to enable counsel exercise dire challenges, responses peremptory suggesting that the to virtually in no generalized questions of the court resulted distinguish prospective juror from information that would one ask another. Defendant asserts that because the court did not open-ended follow-up questions, impossible it for the court was below, Court, recognize to impossible it remains for this and opinions separate jurors. Specifically, differences sexual and not one them was asked whether the assault teenage girl murder would be a circumstance that would juror concerning imposition influence of the death penalty. short, “thorough

In defendant contends that there no inquiry” searching the trial court into each individual’s concerning penalty that the were jurors attitude the death concerning inadequately publicity about the case. See screened II, (death supra, A.2d 1172 550 Williams prosecution requires qualification process capital-murder “thorough inquiry “jurors’ opinions and searching” into biases”). independent dire reveals that as

Our review voir sufficiently probing attempt the voir dire was its whole through their any prospective jurors who indicated weed out might impair ability ease answers that the facts of this their guilt proper or innocence or to determine the decide defendant’s sentence. dire, have

Again note that this voir like others that we we seen, own, rhythm jurors’ attitudes acquired a of its is one apparent to court and counsel. There became more quality this voir dire that differs from displayed it others: participation by much more limited counsel in the voir dire case, process. As is often the the trial court conducted almost questioning. Moore, all of the (1991), A.2d we reviewed various voir dire methods and explained processes we produce believe best death- qualified jurors, particularly encouraging judges open to to 455-56, suggestions the of counsel. Id. at (citing 585 A. 2d 864 439, Long, supra, 435). 575 A.2d believe, however, process We that the here enabled counsel to impartial fair jury. Jury place select a selection took over six-day period. a employed system” court the “struck-jury qualified fifty in it approximately prospective jurors, which allowing peremptory challenges thus each side to exercise from qualified pool. step process a in general The first the awas given day’s panel. orientation to each In that orientation the victim, case, age court described the nature of the the the of charges defendant, against process the two-step and the in capital cases. trial, Supreme

At the time of this the United States Court Witt, 412, recently Wainwright supra, had decided 469 U.S. case, In the S.Ct. 83 L.Ed.2d 841. that Court directed proper determining that prospective the standard for when a juror may of be excluded for cause because his or her views on punishment capital “prevent is whether those would views or substantially impair performance juror the his a of duties as in oath.” at accordance with his instructions and his Id. gave 83 L.Ed.2d at 851-52. The trial court here

S.Ct. ruling, jurors summary objected a brief of that now to However, jurors the court had made it clear to the defendant. very general fashion, in that “I’ve our effort described you understanding inquiry it will our because assist with respect your concerning imposition to views death penalty.” orientation, jurors excused general were

Following returning to the courtroom complete questionnaire before to questionnaire appendix That is set forth in the for voir dire. questions of the specific and asks a number of brief defendant’s individually to the jurors had returned been jurors. When courtroom, pattern was to review each the court’s question juror and to summary fashion with questions on the jurors respect any problematic answers orientation, made general had it questionnaire. its court wrong right there “no or answers” jurors clear are said, was, attempt to obtain questions. It as he an qualified jurors. juror, interrogating each the court encour-

In the course frankness, types of senti- aged expressing these candor ** *. me straight “Tell me Tell like jurors: ments to the out honest, answers”; is”; frank looking for and candid it “I’m “straight shoulder”; he like from the would it expressed had disqualified juror who some reserva- case innocence, you “I presumption compliment tions about the me.” being candid with rigid employ slot-defining a format The trial court did not II, supra, described in State v. Williams such death, (automatic life, .2d 1172 automatic all at 550 A others), question very completely open-ended often asked a but opin they or focusing any whether had attitudes jurors of penalty. of death It concerning imposition the the ions all any the attempt jurors not to force into mode. did jurors the rulings respect qualifications to The court’s attempt prosecution a to The court denied were even-handed. who, having juror once been a defendant disqualify for cause a himself, jury acquit; excused for prior in a service to had voted might “swayed juror expressed view that he who a cause against he have ages”; juror let sit a who said would voted by referendum; juror who punishment in a removed capital innocence; worked presumption expressed “doubt” about hard to calm down a distraught somewhat juror who felt overcome complexity of the proceedings qualified straight-talking person rather to sit jury. on the specific questions Granted that related to the facts of this might case have elicited responsive more answers from the jurors, it appear does not that any jurors hesitated to inform any the court of they reservations had on age account of the or characteristics the victim. One said that his four-and-one- half-year-old would, fact, child judgment, affect his and that person jury was excused from process service. dire,

voir agreed court and counsel simplest approach reinterrogation juror of a juror was to ask briefly leave the courtroom and then have the court confer with counsel questions. about further On one occasion when the prosecution asked for inquiry further prospective juror, from a lawyer, stated, who was a the court “I’ll chat with her.” In short, every there is indication that the court would have been receptive questions counsel, from counsel. This like counsel Marshall, State v. (1991), 586 A .2d 85 neither sought nor in an believed exhaustive process, seeming voir dire to wish that the court overemphasize qualification process. Prosecution and defense rarely counsel asked for follow-up questions. they did, When invariably court acced struck-jury ed. The panel gamut ran the professions occupations, including farmer, unemployed an person, a driver, school-bus lawyers, three one of whom had been a clerk for a Supreme United States Court Justice. As we note in discussion, jury-selection finally that was selected eight blacks, consisted of whites and four five men and seven women.

Hence, questioning we conclude that sufficiently produce calculated to a fair jury. and unbiased Several of the jurors questioned did they state that had heard about this case Any or read preconceived about it. of those who had notions of guilt were they only excused. Most said could remember bare details and would wait to hear the evidence in the courtroom. approached quite the case in a jurors us that most

It seems to that the information fur- way. We are satisfied fair-minded respect drawn impressions with nished to counsel they presented themselves enabled coun- jurors each impartial jury. fair to select a sel

Ill Trial Issues movie, Midnight” “10 to A. Use trial, sought At into the State to introduce evidence Midnight.” relevancy proffered film “10 to portions of the to defen by the State was related to statement attributed killing “like by Hempstead police officers that was dant ” Midnight.’ film has described in in the movie ‘10to That been “propaganda “police and murder thriller” and a a review as a argues against slayers escape let brutal piece that laws that Times, 13, 1983, 1, col. insanity pleas.” N.Y. Mar. with § 5. clips from film that

The record includes the two were film into evidence. The trial court viewed the admitted clips, those two which involved counsel and concluded women, (1) stabbings respects: might aid three talking about or what he meant establish what defendant was reference; (2) by demonstrating that there was indeed movie, give credibility which would officers’ such accounts; and, finally, (3) that defendant to establish the motive screaming. had stabbed the victim because she relied, ruling, preliminary The court its Evidence Rule Evidence, 7(f), provides which keystone the Rules elsewhere, it is admissi- specifically excluded unless evidence defined as evidence “hav- if relevant. Relevant evidence is ble any any .tendency prove in reason to material fact.” ing 1(2). Evid.R.

249 of the evidence on objected Defense counsel to the admission relevant, if it were and that even that it was not the basis 4, relevant, under Evidence Rule which it should be excluded probative if it finds that its allows courts to exclude evidence admission outweighed by the risk that its substantially value is danger prejudice undue or of confus- will create substantial misleading jury. ing or the issues When the the evidence was admissible. The court ruled that shown, that the evidence court told the clips were corroborating believing or whether you in “may aid or assist Mid- movie ‘10 to made reference the defendant ever [the he had in you flavor as to what night’],” may “give some mind.” might marginal relevance cases there

Obviously some and a material reference in a statement an extrinsic between example is Probably the most notable in a trial. fact at issue Hinckley’s psychia defense Hinckley, which the case of John “Taxi by the movie he had influenced proffered trist been Reagan in order to President attempt to assassinate Driver” to Caplan, Insanity L. The himself with a woman. See ingratiate Jr., (1984). Hinckley, 77 Trial W. in the John Defense trial in in the Manson incident occurred Charles Another such song “Helter interpretation of the Beatle his bizarre which his motivation for to the overall may have contributed Skelter” 102, Cal.Rptr. Manson, Cal.App.3d 132 61 People v. conduct. 986, 1686, denied, 52 (1976), 97 S.Ct. cert. 430 U.S. evidentiary such an (1977). problematic use of L. Ed. 2d 382 State, capital compounded case device, by the at least Any proceedings. relevance nature of the the bifurcated capital trial guilt phase of a might in the have type of evidence phase sentencing by prejudice in the be so overwhelmed would sentencing that the capital irrelevant to factors by extraneous require inevitably almost evidence would of such admission II, supra, v. Williams death sentence. See State reversal of a death (jury may not base 550 A.2d constitutionally impermissi that are on considerations sentence sentencing process); totally or irrelevant to ble (1988)(admission Rose, repetitive 548 A. 2d 1058 past conduct highly-inflammatory evidence of defendant’s rever precise limiting compelled instruction without careful sentence). sal of death instructed, here, portions jury

For even if is as to use the the (1) only purposes establishing the film for of that of shown words, (2) and what he had in mind when defendant used those reference, way no for the making he was the there is realistic separate voyeuristic the aspects to the of the film from evidentiary is purpose. The character referred to in the movie psychopathic repeatedly engages killer who sadistic a serial depicted in killings young of women. He and his victims are message only way to the nude. The final of the film is that the Bronson- protect society people from such is for Charles type them death lest the law afford them character to shoot to some defense. capital sentencing, have

Given structured nature of we subjected to to repeatedly emphasized juries that are not be may jury’s way extraneous that influence a verdict factors by nor statute. The subliminal contemplated neither authorized message penalty phase. surely of the film here tainted the trial, however, respect guilt phase given that With of defendant, objectionable the two inferences cited most society like,” protect type,” he can this “what is “how we from issues, guilt-phase we find have so little relevance not potential prejudice clips slight from film so (the background The evidence reference to warrant a reversal. movie) it marginal significance such that was was of Hempstead police who Hence, we jury. role with that question of the court’s again repeat the basics. terminology into the forward regret carrying pre-Code

We get the interested discussion, way other may there be no but law, no pre-Code the issue. Under to understand readers finding of jury a to death without sentenced person could be law, prior adoption first-degree murder. At common Justice, forms of murder: were two there the Code of Criminal Only the for- second-degree murder. first-degree murder and First-degree sentence. to the death subjected a defendant mer concept of “deliberate by the characterized murder was constituted es- Second-degree murder murder. premeditated” pres- and was characterized other murders sentially all aby inferred could be aforethought,” which of “malice ence injury on a bodily infliction of serious actor’s jury from the enacted, was of Criminal Justice the new Code victim. When second- first- and distinguish between need to there was no 1979, same. L. each was the degree murder. The sentence 252 imprisonment). (thirty years’

c. 178 The Code included both general forms murder in its definition of murder. N.J.S.A. (criminal 2C:ll-3 homicide constitutes murder when the actor “purposely” “knowingly” or causes death or bodily serious injury death). resulting in however, Gerald, explained, supra,

As we in State v. 113 40, 792, penalty superim when the A.2d death posed on the of Criminal specific Code Justice no reference was made which of the forms of murder two would However, eligible. legislative history be death of the Act Court only constitutional concerns convinced the that it was killing subject eligibility. intentional was to be to death stated, sponsor using As the the bill familiar forms lawyers Jersey, known to common-law New a defendant death-penalty proceedings only having faces after been “found guilty unanimously beyond a reasonable doubt of first willful, degree murder, premeditated Capital murder.” Pun Hearings ishment Act: Judiciary S. Senate Before (1982), quoted Gerald, supra, Committee at 1 in State 2d Any interpretation N.J. at 549 A. 792. other would present possible problem. constitutional

Hence, part capital we ruled of a trial must be the by jury determination whether had defendant committed what purposeful the Code “knowing now refers or murder” murder). (capital/first-degree required by evidence, If in the pur must consider alternative whether death, posefully knowingly or caused purposefully or or know ingly bodily injury caused serious resulted in death murder), (SBI/second-degree only rendering the former eligible. defendant death Id. at A. 2d 792. misunderstanding application The that has our arisen over of confusing question stems Gerald doctrine from apparent guilt question guilt is with of how to be decided. question The been our capital that has asked about review of cases repeatedly is how it can be that one who had a stabbed

253 victim, Jackson, 484, (1990), 118 State v. N.J. 572 A.2d 607 or victim, bludgeoned one had a 121 Harvey, who State v. N.J. — 407, (1990), denied, U.S.-, 581 A .2d483 cert. 111 S.Ct. (1991), 113 L.Ed.2d 268 or even one who had shot a victim, (1990) 119 Pennington, State v. A.2d Clausell, (1990), A.2d can be thought intended the not to have death of the victim.. question problem answers itself. But the is not with the question; problem gets is with who question. to answer the justice only system jury Under our a that knows the differ question ence between the two forms murder and the that it may question. answer that must decide appellate judges, job our jury, As ask: did the instructions, proper question answer that establishes death eligibility? plain jury It seems to us in that the this case did not. We intend no criticism of court or counsel when note we jury specifically in this case the instructed that it guilty could find defendant of murder if it found that he bodily injuries intended to inflict on the victim serious resulted death. The court instructed the that “criminal knowingly murder when the actor causes homicide constitutes bodily injury resulting in death.” After defin- death or serious explained: ing “knowingly,” the court In other shot the victim with a words, if, example, person only purpose harm but death find that does, fact, occur, to cause serious bodily you may the accused knew that what he did as a matter of would, practical certainty, guilty of if victim with a result in death. Then he is murder as he shot object killing. conscious charge plainly This embraced SBI or what used to be called second-degree murder. trial,

Although legal charges are at the core of a fair one attempting could consider to rehabilitate the verdict were it not SBI/second-degree charge played prominent part that the prosecution. although strong case can be the State’s For points unerringly to an intent to kill based on the made that body, closing in his re- deliberate submersion of the victim’s understandably, jury, prosecutor, quite marks to the direct- jury’s stabbing ed the attention to the earlier as the basis for murder. Recall that his confession defendant said that he Tanya Thus, did not if know were dead. prosecutor alive or jury: said to the gentlemen, go saying going ladies and don’t around I’m Obviously, people knowing commit a murder. don’t do^that. Instead They what do do? they commit the murder. And can infer from the

They acts of the individual you himself what it was that that individual intended to do. circumstantially So figure that can deduce or can out from the you you someone kills way intended to or that knew that when did it it somebody they would they they injury resulting cause serious in death or bodily death itself. presented The State thus jury with at plausible least two conviction, bases for the the intentional infliction of serious bodily injury resulting in (SBI/second-degree) death or the killing by intentional drowning (capital/first-degree). The charge jury court’s did not it only inform that the latter form of murder eligible. was death jury When a verdict can bases, rest on one of two presume available no court can which States, basis it is. Bollenbach v. United 326 U.S. 402, 405, (1946).

S.Ct. 90 L.Ed. The error was not harmless because there was evidence this case that could SBI/second-degree have sustained an murder verdict. We do suggest not likely, that such a verdict merely but that if verdict, jury returned that the court reject could not it. Insistence on requirement that fundamental of jury findings overwhelming guilt the face of may appear evidence of great price some to be too pay by society by rising beset enduring crime. But principle there is an value to the only juries guilt can people decide our or innocence. If had to they give up, choose the liberties would right we think that the jury guilt to have a determine among their would be the last right surrendered. It is that enforcing. we are We are Juries, second-guessing juries. instructed, not properly judges, capital non-capital. decide whether the murder is or jury This was not instructed that it had to make that distinct determination. There can be no substitute for that verdict. error charged felony C. Was it not to have attempted murder based on sexual assault? charged murder,

Defendant was capital aggrava contact, ted criminal sexual robbery, felony and murder with robbery predicate felony. defendant, as the According to gist of the State’s case was that defendant had tried to rob and sexually attack his victim during and the commission of those he killed jury acquitted crimes her. The robbery defendant of felony murder in the robbery. During course of delibera tions, jury they asked whether guilty could find defendant felony murder felony robbery. based on a other than responded court that robbery only felony you is “the that your address attentions to.” Defendant contends that evidence felony attempt warranted instruction on murder with predicate ed sexual assault as the A felony. conviction of murder, felony murder, opposed capital as would not render eligible defendant for the death sentence. aggravated

The difference between criminal sexual contact attempted proved by sexual assault is that former is showing 2C:14-1d, “touching,” an unauthorized N.J.S.A. where requires proof attempt as the latter of an “an act of sexual penetration.” In N.J.S.A. 2C:14-2c. the context of a felonious crime, felony only felony sexual murder can be based on involving penetration attempted penetration. or N.J.S.A. 2C:11-3a(3). suggests strongly Defendant that the record indi attempting cates that he was to commit the act of sexual penetration on the victim and that he stabbed the victim an attack, attempt to force her to submit to such an that the but intended, stabbing proved In causing more serious than death. sum, attempted says that this was an sexual assault requiring felony-murder charge. of a submission agree ordinarily superven

Of course that we “the court has ing responsibility charge jury concerning any version ‘clearly require proper the offense indicated’ the evidence Grunow, 133, 148, jury consideration.” 102 506 State v. N.J. (1986) 295, 299, Choice, (quoting A. 2d 708 N.J. case (1985)). analysis the trouble with But A.2d charge, this, request such a did not like in which defendant impossible position. Defendant was puts in an it the court pen penetration attempted sexual or charged with sexual intention had convicted defendant of jury if the etration. What death on an premised a sentence of then had al murder and factor? aggravating as an penetration, viewed attempted sexual had if court on its own motion We could well envision only jury had not felony jury to the and the submitted penetration predicated a death attempted sexual but found it, it to review a troublesome issue would be on what sentence (1988) 384, Zola, 112 548 A. 2d 1022 appeal. See State (proof pen (Handler, J., concurring dissenting) of sexual to have been submitted etration was not sufficient case), denied, 489 capital-murder cert. aggravating factor in (1989). 1146, 103 L.Ed.2d 205 109 S.Ct. U.S. Choice, 486 A.2d we supra, State v. charge the obligation to a trial court has no emphasized that parties requested by the particular offense when not jury on a appropriateness of the “clearly indicate” the unless the facts to a lightly cannot submit charge. capital In a case a court imposition felony may result in the uncharged predicate an event, plain any this matter arises of death. In of a sentence capable of have been error it must To be reversible error. only that Defendant asserts unjust an result. bringing about jury the given have is that it “would for reversal basis murder.” Be- non-capital of a convicting defendant option of is the same as felony murder cause the sentence for the death purposeful murder where knowing or sentence for in the prejudice no to defendant imposed, there is penalty is case. circumstances of this the crime to have submitted

D. Was it error contact based on criminal sexual aggravated weapon? deadly a presence ag charged only the commission The indictment on commission criminal sexual contact based gravated pro- provisions of the sexual-offense interrelated robbery. The -8, Justice, N.J.S.A. 2C:14-1 of Criminal visions of Code degree of that determine the variety of factors set forth a settings. give a short- in different We but culpability criminal to be provisions. Among the factors summary of the hand act, involved of the whether it e.g., the nature considered are contact; relationship between other penetration or in this case the age differentials. Recall that parties; was partially unclothed and that defendant found victim was of the penetration sexual contact not with but with charged victim. grading and sentenc- is elevated for sexual contact

Criminal crime or during the commission of another ing if it is done case the indictment weapon. this the use of involves on the contact based aggravated with sexual charged defendant robbery. commission of case, for an moved the State’s

At the close of basis questioned the factual counts. The court acquittal on all language in that the contact aggravated criminal sexual for the during it occurred specify whether indictment failed of the armed. The robbery or while defendant course of the counsel, pretrial proceedings, reviewed court consulted to defen- representation pretrial prosecutor’s that the and noted during had committed sexual contact been that the dant was robbery or of the commission “either the course that, having argues weapon.” The State possession of the notice, the court lack of to defendant from prejudice found no sup- sufficient evidence that there was concluded properly charge based sexual contact aggravated criminal port an armed. the fact that defendant robbery or either the As a position on that issue. agree with the State’s We an may not be convicted criminal defendant general rule a indictment, may a trial court but charged in the offense charged of the crime offenses jury on lesser-included instruct a is a request when there prosecutor’s the indictment on the 258 the defendant consents. charge for the and when

rational basis 417, 423, Sloane, (App. 226 N.J.Super. A.2d Div.1987), 111 N.J. 544 A.2d grounds, rev’d on other (1988). fairly apprised defendant Because the indictment contact, (after all, the other charge the offense is the sexual it) discovery that the grade pretrial the revealed factors weap possession either the theory was based on State’s notice to defendant to robbery, giving sufficient on or infirmity. against charge, there is no constitutional defend (1983). 466 A .2d Talley, See State deprive by prosecutor E. Did comments made right his to a fair trial? defendant of right that his to a fair trial was Defendant contends pro prosecutor during the by by made violated comments highly that it was ceedings. Specifically, defendant asserts young witnesses prosecutor speculate to improper for they might testifying though they themselves feared were as victim; “big defendant as a defendant's to describe have been by made thugs,” referring to a statement among man” “lesser station; to use dehumaniz Hempstead police defendant at the being cold ing degrading epithets about defendant remorse, any feeling, a lack of person who had “a lack sug predicament”; to complete about his own lack of concern prove picture his obligation to gest that defendant had an cross-examined paper when defense counsel had been eyewitness accounts had been their witnesses about whether was blood picture; speculate that there by influenced suggest fingernails; under the victim’s from defendant experimentation its own scientific it conduct and, finally, that the evidentiary guidelines; adequate without present at his right to be undermined defendant’s prosecutor he had sat commenting on the fact that trial own you and he they’ve all said to “he knows what courtroom and up.” story’s got to add knows how his

259 improprieties that those asserted were not of are satisfied We deprive Although to a nature as defendant of fair trial. such a drawing commenting to on and to generally limited the evidence supported by prosecu a proofs, inferences any reasonable vigorous presenta may nonetheless “a and forceful tor make 45, Bucanis, 56, case.” v. 138 tion of the State’s 26 N.J. State 739, denied, 1157, 2 2d cert. 357 78 S.Ct. L. Ed. A .2d U.S. (1958). prosecutor’s In each the instances cited the sufficiently scope of the evidence comments were related finger under victim’s jury. Although the blood before blood, there were as defendant’s nails could not identified face that could and other marks defendant’s scratches from defendant. an the blood had come warrant inference that also “big among “thugs” man” reference to defendant as that to the evidence offered tangential some reference had Hempstead inmates in the explained the other defendant he had lockup going that to the head of line because he was respect The comments with to defen committed murder. entirety, not testimony, in their did demeanor on taken dant’s any disprove that had burden State’s suggest defendant suggests the comments about defendant’s The State case. nominally addressed presence in at least the courtroom explain not credibility when he could of defendant’s comments Finally, sugges differing accounts. in the inconsistencies any not bolster itself examine the fibers did tion sugges way was more or less testimony any but expert’s jurors by the that could a common-sense observation tion of jury. misled the have of counsel

F. Ineffective assistance cases, forth have set capital we In a recent series has determining capital whether a the standards phases of a of counsel both the effective assistance received (1991) 2d 916 585 A. Oglesby, trial. State v. 594, 577 J., Savage, 120 N.J. (Handler, concurring); State Davis, 561 A .2d (1990); .2d 455 A present capital cases issues (1989). Suffice it state extraordinary complexity, and to reasonably be considered com- obviously requires very petent capital grasp counsel broad of capital jurisprudence principles of both and constitutional crimi- procedure. nal presents will issue as

We state the it. This case by change was in characterized of counsel the course of trial. inception At the the proceedings, represented defendant was by attorneys the Camden County from Public Defender’s office. filing In challenging jury arrays addition to motions in County constitutionality penalty, Camden of the death original experts them in challenging counsel obtained to assist jury-selection system. sought Defense counsel also to question sufficiency supporting of the aggravating evidence e(4)(c) (battery/torture/depravity), require factor and to prosecutor specific to state facts which he relied in asserting aggravating factors. view, appellate challenges counsel’s the most crucial for successfully against defense to meet and defend were alleged eyewitness

defendant’s testimony confessions and the of several prepared pretrial children. Defense counsel chal- lenges admissibility of the and the reliability confessions However, shortly of the identifications. before trial was to begin, family services private defendant’s obtained the of a attorney, practice Jersey, who was admitted to New but was for substituted as counsel defendant four weeks before the capital trial This was his first case in Jersey. commenced. New variety challenges Defendant has asserted a the effec- tiveness of his counsel. them Among retained are his ineffec- during jury dire, point tiveness voir we have dis- hereof, 11(C) related, however, part primarily cussed in an issue qualification, disposition an our death issue mooted of this discussion, ease. As in that we noted defense counsel took a very profile in the conduct low of the voir dire. We need not debate whether that was tactical. We are satisfied it did impartial jury. not interfere the selection of an allegations Several of the of ineffective assistance counsel cannot, however, during phase of the trial guilt be resolved objections on this record. Most we consider to be tactical nature, example, that defense to make counsel failed guilt on behalf of his in either the opening statements client or however, require aspect, At least one penalty phases.1 will post-conviction proceedings, further consideration relief namely, defendant’s failure to two at the whether call witnesses hearing product strategic was of a decision. We Miranda Davis, supra, 2d noted in State N.J. at 561 A. strategy virtually that matters tactics are unassailable understanding they proper when are based on a of the law and case, evaluation of all the facts in a case. In this one of the against damaging pieces most of evidence defendant was his represent Before trial confession. counsel substituted defendant, for preparing Defender’s Public office was hearing, anticipating producing to lengthy Miranda witnesses uncle, behalf, testify specifically in defendant’s defendant’s Newbill, grandmother, his Thelma Dixon. Those Robert testify circum going were to be called to to the witnesses surrounding arrest in New York. Newbill stances defendant’s testify police presence in his would that defendant told (defendant) speak lawyer present. he not without a That would team, to new defense whose given information defendant’s allegedly witnesses. members never bothered interview hearing, were not called. the witnesses At the Miranda counsel, all further right to then invoked the Had defendant in the his had to cease absence police questioning would have raised in a interrogation. That issue was further initiating trial, inadequate to disclose record is a new but the motion for counsel strategy motivated of tactics and what reasons discovery object questions 1Appellate counsel’s failure counsel also trial movie, Midnight." Because we consider grounds "10 to admission of not, unduly prejudicial, failure would this not to have been the evidence itself, reversing grounds conviction. might call the He witnesses. have thought they were unrelia ble. He concentrated his challenge Miranda on the unlikeli hood police that the would have failed to obtain written Mi if the warnings randa waivers given. were Savage, State v. 594, supra, 120 N.J. 577 A. 2d a similar trial-counsel failure —failure even to psychiatric consider a defense—necessi post-trial tated hearing explained which trial counsel his rationale for the decision. The Court found that rationale totally unacceptable. It failed to demonstrate minimal compe tence; decision, it was not strategic but a total lack of a suggests decision. 'Defendant permissible strategy trial can never include the failure to conduct a substantial investiga any tion plausible into of defendant’s lines of defense. We find this inadequate record to evaluate the ineffective- respect assistance-of-counsel issue with to the confession. A post-conviction proceeding relief will have to address that issue. 609-12, See v. Savage, supra, (at atN.J. 577 A. 2d 455 post-trial hearing, trial court considered factors that went into decision defense); not to assert mental disease or defect Schaflander, (9th Cir.1984) United States v. 743 A. 2d 714 (court allegations reviewed of ineffective assistance of counsel post-conviction proceeding), denied, relief cert. 470 U.S. (1985). 105 S.Ct. 84 L.Ed.2d 832 proceedings Those must determine non-production whether the of witnesses was the result of neglect and, latter, tactics or of if the whether it prejudiced defendant. At that proceeding, counsel should also address defense counsel’s failure to cross-examine the State’s expert forensic on samples. the fiber Even if neglect, it were however, possibility the any prejudice on that account seems unlikely. most Finally, there has been no showing that a Wade hearing any could in way have aided defendant.

G. Were the non-capital sentences excessive? Dixon five, six, in convicted counts and nine of hindering apprehension his own by for hiding murder the body creek, nearby victim’s by washing clothing he

263 murder, by leaving state. The the time of the wore at of five imposed three consecutive maximum sentences court parole, hindering each one-half without on years, two and conviction, years, and one-half for a total of fifteen seven parole. without imposition of the maximum term

Defendant contends that ineligibility count is period parole on each the maximum excessive, terms. He imposition of three consecutive specific standards enunci that the sentences violate asserts 627, 498 A. 2d Yarbough, ated this Court State v. 1193, denied, (1985), 106 89 cert. 475 U.S. S.Ct. 1239 (1986), fashioning of consecu guide courts 308 L.Ed.2d tive sentences. resentencing the matter must be remanded

Because count, sentencing resolution of those murder we defer sentence, including the of the entire issues until reconsideration 239, 310, Moore, A.2d 550 count. v. N.J. murder See State trial, court follow (1988)(leaving to discretion of sentences however, count). note, this of murder We ing disposition Yarbough, exception to v. not fit within the State case does 2d 1239: within at 498 A. supra, N.J. “[E]ven so announced there are eases parameters that we have general guide extraordinary that deviation from so extreme and Moore, supra, may called for.” State lines killing in which incredibly cult an bestial committed beaten, tortured, subjected to victim had been murdered wall, to a chained abuse, on the kitchen cuffed to a hook sexual A case such nor fed. night, neither clothed and was bathtub guidelines. Yarbough departure from the as that occasions (1989)(even Louis, 566 A. 2d 511 also State See rule, longest” departure from “two justifying in rare cases relevant). sug The guidelines remain Yarbough other agree with merge and we need that the three counts gests a different required proof of offense Each that conclusion. merge do not However, three offenses fact that the fact. apply. do not Yarbough principles not mean that the does 264 sentencing-phase issues

H. Other make, are not disposition that we we In of the view by sentencing-phase issues raised other required to resolve argues that submission particular, defendant defendant. c(4)(f) (killing escape aggravating factor jury of the the pretrial proceedings detection) precluded because underlying upon robbery as the specifically had relied Although prose charging this factor. offense for predicate for closing arguments that the basis emphasized his cutor finding factor could be the sexual-contact jury’s of this conviction, did not charge jury the trial court in its c(4)(f) Either basis submitting the factor. specify a basis for Handler’s dissent. serious concerns noted Justice raises the death-penalty categorical imperative” for fairness is “a Trial 39, 61, Williams, 2d 641 93 459 A. prosecutions. State adequate (1983). capital sentencing without No one can face charges against him or her. See of the notice Lankford — (1991) -, Idaho, L.Ed.2d U.S. S.Ct. State has not (vacating court-imposed death sentence when penalty). it would seek death given notice that finding killing-to-avoid-detection jury its of the If the based contact, due- there is serious on the basis of the sexual factor hand, finding jury if its the other based process issue. On robbery, previously specified offense of this factor on the double-jeopardy violation seek to assert defendant would underlying acquitted had because basis was the argues that obvious robbery. The State from defendant knew offense and that because sexual-contact that was the basis submission prosecutor’s remarks that factor, due-process no no lack of notice and there is case, in this but we not resolve the issue We need violation. concerning the need to observe courts caution Lankford’s presenting capital cases to fair notice in admonitions about sentencing jury.

IV up, right by jury right to trial includes the to To sum jury decide elements of an offense. This have a the essential jury was not instructed to decide which of two forms finding necessary to murder defendant had committed. That harmless eligibility. determine death The error was not be- sustained cause there was evidence in this case that would have A more SBI/second-degree an murder verdict. court can no by jury capital in a dispense right with the fundamental of trial any case than in other case. the matter remanded to

The death sentence is vacated and sentencing the murder conviction in the Law Division for opinion. accordance with this

HANDLER, J., concurring part. in dissenting part in and capital murder conviction and The Court reverses defendant’s sustains, however, defendant’s conviction death sentence. It imposi for the non-capital murder and remands the matter my In on that murder conviction. tion of sentence based the reversal of all errors in this case call for opinion, the trial relate to the of these errors convictions. The most serious dire; highly prejudicial inadequacy the voir the admission worth; the refusal probative minimal that had evidence hearing sufficiency of the evidence on the accord defendant State; by the proffered factors relating aggravating all the respect to which aggravating factor with the reliance on an addition, I continue any prior notice. given had not the State capital-punishment many infirmities of the that the to believe convictions be require that defendant’s persist and also statute 1, 214-16, Marshall, 586 See, e.g., State reversed. Frisco, J., 118 (1991)(Handler, dissenting); v. Di State A.2d (Handler, J., concurring in (1990) 253, 284, 571 A. 2d 914 N.J. part in I therefore dissent dissenting part). part and part. concur

I. deprive inadequate was so as to in this case The voir dire rights to a fair and state constitutional of his federal dire, court the trial jury. part As voir impartial jury question- to the distribution of prior gave an instruction required complete. The juror was potential that each naires disqualified jurors would be included the advice instruction as to instructions they unable to “follow if were [the court’s] the case.” at the close of the law given by the court instruction was Virtually the identical (1988)(Williams Williams, 550 A.2d disapproval II). expressed strong There the Court effectively instruction, concluding “it tells a preliminary process lead during qualification the death juror what answers excusal.” Id. at responses and what avoid to automatic excusal Hunt, 1172. In N.J. 550 A.2d State an (1989), disapproval its this Court reiterated A.2d 1259 juror can be signals way prospective instruction that the trial court recently, the Court admonished excused. More “specify the views that language that would on remand to avoid Clausell, 121 prospective juror.” disqualify a would (1990). 298, 321, .2d 221 580 A preliminary instruction indi- my opinion, the trial court’s automatically that would precisely the kind of answer cated instruction, sixty-three disqualification. Following that trigger death questioned their attitudes towards the jurors were on Reflecting for cause. the court’s penalty; eleven were excused disqualification, nine of concerning preliminary instruction penalty opposition that their death those eleven indicated law, one indicated that fairly applying from prevented them a defendant convicted of always vote to execute he would murder, feelings capital punishment and one felt her about too being impartial. possibility The prevented her from jury of the critical explanation to the strong that the court’s qualification precise di- juror became and ultimate test capital to this de- disqualification. The unfairness rection for positions is jurors eleven concocted excusable fendant that unacceptable. Dur- inadequacies the voir dire. serious surrounded

Other consistently followed questioning, the trial court ing individual First, qualification process. in pattern the death particular opinion an juror each if he or she had the court would ask capital punish- juror responded that penalty. If the the death circumstances, court then in certain appropriate ment was absolutes, questions, usually couched highly leading asked Typically, the court “yes” responses. or “no” called for crimes deserved the juror felt that some ask whether would juror would vote penalty; then it would ask whether death guilty of a defendant was found in all cases where for death questions murder; ask one or two finally, the court would guilt without findings on jurors could make about whether could be questions of those considering punishment. Each “no,” “yes” without elucidation. either or answered questions disapproved strongly of closed-ended has The Court yes/no responses. narrow answers or elicit predetermine 418-423, A.2d 1172. II, supra, 113 N.J. Williams underlying biases. failure to reveal practice is its evil because, many in pronounced shortcoming was more That wholly insuf very superficial stances, questioning was concerning death underlying views jurors’ ficient to uncover misconcep jurors with identify prospective alone to penalty, let law. about the tions impaneled of pattern questioning of only at the need look

One inadequate of pervasiveness of the get a sense jurors to was both “for that she Colon stated Juror Judith questioning. situation.” [depending on the penalty], against death and [the beyond a few elicited that statement was No clarification opinion on Dranchak’s Matt questions. Juror highly-leading one in existence “there should penalty was that the death crime, apply for the stature treated it should be board, is the the nature of the crime I believe it across the point attempted. of that was important thing.” No clarification claiming to expressed confusion after Dorothy Balkman Juror gave conflicting penalty, death then opinion no on the have impose it. When she would ever vote to responses on whether found, guilt death was if never vote for when asked she could never, say say I couldn’t I could never replied, “I could she “I meant was ascertained that what she never.” The court receiving facially-correct re- After say never never.” could questions, quali- court more closed-ended sponses to several penalty, alternate asked the death juror. When about fied think, different, I some felt that “each case juror Jane Fisher leading cases, is, than a few it should be done.” Other it largely meaningless re- probing no further questions, Questioning juror Gerald Yost fol- sponse conducted. “not pattern. stating After that he was that same lowed cases,” supplied the penalty “in certain he against” the death satisfy the “yes” responses “no” ostensibly correct Briglia depending for death on Helen could vote court. Juror Follow-up inquiry con- way “the the murder was committed.” responses were unen- questions the to which sisted of standard “I like the lightening. Marie Eckert told the court: don’t Juror for it if penalty.” Yet she stated that she could vote death same, beyond simplistic Probing did not extend warranted. qualification juror questioning and ultimate questions. The pattern. followed the same Charles Cannon that she “would juror Robin Cream told court Alternate way” position judge to have to either on prefer not to be views, stating: penalty. judge discounted her the death prefer always in life is not what we everything “But then we do questions qualified her the standard to do.” He then asked gave responses. the correct Juror Helen Kozak her when she penalty is “fair in some cases and not fair felt the death depends the circumstances.” When she I think it others. penalty-phase guilt-stage considerations with consider- confused Otherwise, ations, distinguished them for her. the court deciding unalterably asked. yes/no questions were standard death, Harvey Hurst would consider juror whether to vote crime;” qualification death fol- all further “the nature of pattern by adhered to the court. same catechistic lowed the juror offering opinion penalty, on the death initially After no if the that she would vote for death Gladys Campbell revealed it;” try amplify the court did not defendant “deserves questioning. answer, resorting pattern its standard of merely initially expressed opinion no also Juror Constance Gillard “all she would have to hear penalty, then stated that the death judge I based on the facts.” facts and then would ex- pattern questioning followed. Those consistent court’s shallow strongly death-qualification indicate that amples jurors’ views on the death yielded little information on penalty. provide meaningful jurors most questioning

Nor did the Thus, jurors impose vote to death. on when would information prospec- effectively determine whether a court did not the trial penalty automatically impose the death juror would vote tive girl. The thirteen-year-old and murder of a in a sexual assault questioning highlighted of such significance of the omission Venditti, teenage who had two of Barbara questioning thirteen. The examination of whom was daughters, one limited to closed- impartial was ability her to be Venditti on uncertainty over preliminary following her- questions, ended thir- alleged in this case is “the victim the fact that whether ability to be way any “in interfere teen” would [her] impartial”: absolutely fair and know.

A: I don’t asking it. You see, to think about I’m I want that’s Well, you, you Q: why to be the defendant or not would ask whether you presume when we you Do you that’s Now, very important. indicated would. innocent, you you that? understand A: Yes. fair and impartial. have to be absolutely And

Q: you A: Yes. the fact the victim in the case is would that in Now, thirteen, that Q: any way being from fair and

prevent you impartial? A: No. juror charges then the that not court told do constitute proof,

guilt following the State’s of which and described burden age prevent indicated that the of the victim would juror being six impartial. jurors her from At least were excused they age in of the because had relatives close to that victim. citing age of the and Others were excused victim the nature (not indicating they family of the crime whether had members victim). However, age though to even close in that of jurors they to court several volunteered that could not be age fair victim the nature because and crime, consistently prospective jurors the court did not ask vitally important jury mem- about those considerations. One alternates, ber, Harvey Hurst, and two Cream and Jane Robin Fisher, they teenage indicated that had children. None was questioned ability impartial. jurors on his or her to be Those may death-penalty jurors been when consider- have automatic girl. ing young teenage of a That a sexual assault murder possibility explored. was not II, supra, A. 2d this Williams found similar deficiencies the voir out

Court that dire Regarding autorpatic-death-penalty its weighed effectiveness. (in case, automatically jurors jurors that would who vote impose if committed mur penalty the death the defendant had rape), that the court had asked der and this Court observed trial charges way knowledge any all if jurors would concerning imposition their the death influence decision identify auto penalty. question That alone was insufficient Further, had court refused matic-death-penalty jurors. trial pose might questions additional to allow defense counsel subject. provide insight any juror’s views on the We into error.” Id. that those failures constituted “serious concluded Thus, significant inquiry juror into 550 A. 2d 1172. views, feelings, and attitudes on penalty the death was foreclos- by ed resort to leading questions. closed-ended and Further, the record strongly suggests in many instances explanations by jurors thinking of their on the death penalty was colored the court’s own views. The trial court appears improperly excessively to have influenced the content and jurors’ responses. tenor of strongly The court controlled control, however, the voir dire examination. Its in very domineering exercised intimidating manner. The frequently trial court and consistently juror would tell a that it put mouth, did not want to words his or her and would seemingly seek juror opinions assurances from the ex- pressed juror’s Yet, were the appears own. it that the court orchestrated precisely its examination opposite to secure the result —to elicit an answer that mirrored the court’s own view implicit in question. its precatory, Its words were but its message mandatory. light persistent In judicial of the proselytizing, simply possible it is any not to conclude with confidence that put the court did not in fact words in the jurors. mouths of

Many questions appear court’s produce calculated to answers, “correct” many and of jurors’ responses the seem spoonfed. example, invariably For prospective almost when a juror case, indicated that he or she had read the about the court would immediately juror: everything ask the “You don’t believe you newspaper, you?” receiving read the do On a “no” response, the court then would ask: “Isn’t it a fact that what I you morning told greater you this was in detail than what read newspaper?” in the Simply punctuat- because that sentence is question disguise clearly ed with a mark does not a what is fact, In pointed question declarative statement. that kind of suggestive seems more of adversarial cross-examination than of even-handed voir dire.

Furthermore, confusing. purports the statement itself is It suggest a contrast between court-furnished information and hardly surprising news It is that a

that derived from accounts. during the case an intensive learn more about juror would by reading he she a by the court than or would orientation Thus, “question” purpose the court’s newspaper article. agree implied the importuned with view effect statement, newspaper of namely, or television account that necessarily incomplete be inaccurate and the crime would having been juror need not concerned about thus that problem The critical raised such exposed the crime. however, pretrial or extra- exposure, is not addressed: whether compro impressions will publicity juror has left trial juror’s ability fairly. Bieg See mise the to deliberate enwald, 13, (1987). Yount, 524 2d 130 A. Patton Cf. 2885, 2890, L.Ed.2d 467 U.S. S.Ct. (for evaluating pre-trial publicity, (1984) impact of purposes remembered question community is whether the “relevant not case, opinions jurors had such fixed but whether the ... guilt they judge impartially defen could dant”). sum, necessary inquiry whether appropriate is any might prevent information that him or

juror had learned juror, sitting impartial an not whether court her from explained more than a news account. has the case in detail Thus, it obscures “question” of the court’s mischief jurors may who have been totally impression and attitude publicity. such tainted Hunt, supra, impartial jury is fair trial.

An essential 1259; II, 348, 113 at supra, N.J. 558 A.2d Williams in 409, totality its the this 1172. in voir dire 550 A.2d Taken extensive, the fair and probing of and case falls far short the balanced, is an objective questioning neutral essen- the and degree impartiality with predicate securing jury of tial capital strong necessary prosecution. in a of fairness and sense “requirement of repeatedly that fair- have stressed We heightened in particularly jury impartiality cases ness—and —is Williams, death.” 93 the defendant faces which

273 39, 61, (1983) (Williams I). A.2d Beck Cf. 641 Alabama, 625, 637-38, 2382, 2389-90, U.S. 100 S.Ct. (1980) L.Ed.2d (capital require heightened degree cases end, reliability). To secure that have we mandated that trial comprehensive inquiry juror’s courts undertake a into a attitude II, regarding penalty. supra, the death Williams 113 N.J. at principles 550 A.2d 1172. Those were not in this followed case.

II. allowing excerpts Defendant contends that to watch Midnight” of the film “10 to an trial constituted abuse of the process court’s discretion and violated due The law. Court rejects respect guilt phase. that contention with Ante at strongly disagree. I prejudicial 593 A. 2d at 279. repercussions in that so inherent evidence were severe they completely any might undermine confidence one have in guilt phase. the result reached in the Defendant was irretriev ably prejudiced by respect that evidence with to his criminal convictions. McLaughlin Alger

Detectives testified at the Miranda to the murder hearing and at trial that defendant had confessed McLaughlin stated that his Tanya Samuels. Detective film To compared the murder to the “10 confession defendant expressed unfamiliarity Midnight.” McLaughlin When know, movie, like, film, you “it was like the defendant offered: screaming guy hit her he stabbed girl kept and the ... He slightly different. Alger’s Detective recollection was her.” why he had stated he did not know testified that defendant like in that movie when victim that “it was stabbed the but stop screaming she kept wouldn’t girl the movie He said it was like that.” guy stabbed her. remark, por- sought introduce

Seizing the State on that presence Midnight” into evidence. Out of tions of “10 to segments he wanted to jury, prosecutor played the speed. introduce, running the rest of the film at fast-forward agreed murder scenes from that two Subsequently, the court jury. the segments shown to those would be depicted film the tree, against slowly standing a nude woman a first The shows sobbing psychopathic nude ground and while a sliding to the for and her. As the murderer reaches approaches murderer “Warren, rises, head, slowly pleading woman her the touches Warren, you.” The murder- anything I’ll for hurt me. do don’t enters, As the knife the woman the knife into her. plunges er apartment portrays an The second murder scene screams. A cowers in a nurses reside. woman number of where murderer, corner, shrieking whimpering as the nude blood him, The switches to a second dripping yells at her. scene from the camera adjoining in a room. When hiding darkened woman body setting, murderer’s the first obscures returns to aside, revealing the moves now-silent victim. murderer dead, bloody body. victim’s of strenuously objected to the admission counsel

Defense stressing request is somewhat out- segments, film that “the of sick mad rageous____ What we have here one those movies, running with no got man around slasher we’ve However, on, pervert.” of sexual obviously clothes some kind rejected prosecutor, the court hearing from the without even refer- objections. It found that defendant’s defense counsel’s his Midnight” state mind “10 to movie relevant ence credibility segments film relevant to and that the were testimony reference concerning defendant’s police officers’ stabbing motive to the film as well as defendant’s highly so ruled that “where motive is The trial court victim. excluded, Rule 4 should relevant no evidence [Evidence] should never be used.” film, jurors’ viewing defense

Immediately prior film argued that if the objections. his He was counsel restated mind, only to demonstrate defendant’s state to be shown The court ruled that both scenes applicable. second scene gave limiting The court then be relevant. could instruction in which it stressed that film would be shown only to help jury and, so, decide whether the film existed if whether it related to defendant’s state of mind. The then segments. viewed film both hardly clips

One can claim that the necessary film were by establish the existence of film mentioned in disputed his confession. No one the existence of such a film. Although it is true that the might detectives have lying been about defendant’s confession implicitly and his about reference film, viewing to the the film hardly necessary was to enable the jurors to assess the credibility. detectives’ If the detectives lying general, were about defendant’s they confession could lying been regardless have about his reference to the film existence the film. The fact that there was such film simply bearing has no on telling whether the detectives were the truth. finding

The trial court’s hinges part of relevance for most its theory. state-of-mind The only evidence of defendant’s state of mind is that contained the reference to movie reference, however, made in the course of his confession. That contrast, only screaming mentions of the victim. encompassed segments highly film potent evidence went beyond measurably screaming. of a circumstance victim Together graphically, dramatically por- the scenes vividly, and multiple sexually-driven cruel, trayed by murders committed perverted Thus, psychopathic depicted or killer. the scenes an extraordinarily unremorseful, dangerous savage, killer: often, they simply show a murderer who kills who kills not screaming, because his victims are kills who while the throes perversion, cruelty some twisted sexual who kills out or sadism, special rage who kills of some or hatred because toward his victims. instance, in

For the first scene the murderer and the victim name; know one another —she calls him the victim is not screaming; whimpers mercy. she pathetically pleads approaches deliberatively, victim caleulated- murderer remorse, homicidal and attacks her with obvious

ly, without screams, killing nothing His has to do with her premeditation. occur as she In the second scene shown only is stabbed. which seen; jury, murderer is hence it is obvious that the same already least one other woman. the murderer had stabbed at Moreover, segment, it that he within the second is evident even already he is people killed other because covered blood has Further, cruelly helpless, pleading kills victim. he before he his frustrated, he apparently appears angered because woman, looking unsuccessfully another who is shown cow- Thus, though ering hiding place. in a even defendant’s confes- he on indicated at most that the murder committed focused sion victim, jury the screaming his the scenes shown to of two egregious state of mind depicted a murderer with an homicidal suggested by in no the defendant in his way is described or that confession. clips “portrayed crimes acknowledges that

The State surrounding from de- clearly distinguishable circumstances [Tanya nonetheless fendant’s murder of State Samuels].” clips impact of the film prejudicial that contends only one minute excerpts shown totaled minimal because packed into Regardless, the horror those and thirteen seconds. devastating impact; is generates a the horror short scenes concentrated. intense the scenes are more because result, any argues prejudice if did it was The State also by purpose of the the court’s instruction on the limited offset film, film and to namely, “to that the existed shed demonstrate by what he meant his light defendant’s conduct and some apparently film.” The trial court believed that reference beyond spill-over segments film contained no evidence screaming. only killed she is to a victim who is because confined respect ... Incredibly, trial court stated that “[w]ith [a] about, course, running going that’s not to be maniac of sex Yet, beyond argument that the it is clear jury.” shown

277 segments two film viewed did show graphically precisely “a sex running maniac about.” governs

Evidence 4 Rule the exclusion of prejudicial or misleading evidence. Comment 1 on that Rule states that the balancing probative prejudice value and is left to the discre tion of the Carter, trial court. 86, 106, See State v. 91 N.J. 449 (1982). A .2d1280 appeal, On the party seeking exclusion must show that “the trial court palpably discretion, is, abused its finding that its was so wide of the mark that a manifest denial Ibid, justice (citing resulted.” 218, State Rogers, 19 N.J. 229, (1955); 4, 116 A .2d 37 Evid.R. Comment 2. Evidence of motive is admissible if even it will potentially inflame jury. Ibid, (citing Wharton, Evidence, (13th Criminal 170 at 316 § 1972)). Yet, ed. inflammatory evidence must be excluded if probative, non-inflammatory point evidence on the same Davis, 341, 366, available. 116 N.J. 561 A .2d 1082 (1989).

This Court has considered prejudicial impact photo graphs -in guilt phase introduced capital cases on several See, e.g., (Samuel) Moore, occasions. 420, State v. 122 N.J. 466-69, (1991); 585 A.2d 864 594, Savage, State v. 632- 33, (1990); A .2d455 McDougald, State v. 120 N.J. 579- (1990); Rose, 577 A.2d 419 535-36, State v. (1988). A.2d 1058 photographs those cases the depicted the actual crime scenes photographs and/or victims. The related to identity corpse of the and/or the time and manner of the exception Rose, murders. With the of in those cases this Court found although pictures that some of may have been inflammatory, palpable the defendant did not establish a abuse contrast, By Rose, of discretion. this Court determined that the trial court should autopsy photograph have excluded an depicting the site of a entry photo bullet wound because the graph highly inflammatory was entry and the site of the wound already had photograph. been established another How ever, light overwhelming of the evidence of the defendant’s guilt, the Court found the erroneous admission harmless. 112

278 546, 548 A. 2d The reached a similar result at 1058. Court N.J. respect to the shirt admission the victim’s blood-stained with undershirt, which introduced show the distance had been the defendant the victim when the latter was shot. between excluded the This Court found that the court should have evidence, but that to have so harmless error. failure done was Ibid. from qualitatively at here is different evidence issue photographs and prejudicial

in Rose. As as were the blood- Rose, they physical shirts in at least constituted evi- stained some to the circumstances of the crime. dence bore relation Here, only remotely connected the trial court admitted evidence investigation, of the criminal which carried to the circumstances images, devastatingly prejudicial sugges- it a cavalcade tions, and associations.

Further, showing jury qualitatively a film to a different respect photographs. to the use of showing from it still With trial, Appellate Division has noted that there “is films placing danger prejudice jury’s as a result of the undue moving light weight pictures inordinate ... impact pictures.” Balian v. tremendous dramatic motion 118, 128, (1972) Motors, 296 317 N.J.Super. 121 A.2d General Paradis, Witness, (citing 37 235 The Celluloid U.Colo.L.Rev. Here, denied, 195, (1973). (1965)), 299 A. 2d 729 certif. riveting Midnight” underscores visually nature of “10 to “predominant the film’s effect arouse emo [was] enlightenment contributing on the tions of the without Bucanis, 45, 739, 138A.2d issues at hand.” State v. (1958) 78 S.Ct. L.Ed.2d cert. denied U.S. omitted). (citation presents Rule 4 determination

The trial court’s Evidence to “10 to of discretion. Defendant’s reference palpable abuse only generates Midnight” vague fleeting. It Yet, her. Tanya quiet court inference that he killed brutally psychopath of a exposed jury to naked scenes 279 Thus, stabbing allowing defenseless women. the to con jury up jure images considering from that film in culpa defendant’s bility appears the inflammatory way to be most to demonstrate Davis, defendant’s state of mind. supra, See 116 State N.J. 366, (“even 561 A. 2d 1082 relevant evidence of an inflamma tory may nature regardless not admitted under Evid.R. instruction, availability limiting probative, if non-inflam matory (citation point available”) evidence on same is omit ted). Although jury presumed is to follow the instruc court’s tions, (1969), Manley, see N.J. 255 A. 2d 193 that presumption surely dispelled is when the is minimal evidence (cid:127) inflammatory its image overwhelming. and The court’s believing instructions not a against jury were barrier that psychopathic exemplified murderer’s state of mind defen own dant’s state of mind.

There aspect is another latent but the trial invidious to handling limiting court’s of that The court’s instruc- evidence. grossly inadequate guide jury protect tions were explained defendant. The court it had jury trial film, yet any jurors it if viewed did not ask had seen the jurors film it failed instruct the not to see it. The court jury informed the as follows: What we I I at the And the did, well, did, what looked whole movie. frankly, I reason looked at the movie is because will recall from two you testimony suggesting I’m different witnesses and whether should it or not believe you

believe but two different it, heard from witnesses you testimony during concerning allegedly discussion this matter defendant course of his girl guy, screaming guy I made reference to the and the recall exactly, killing stabbing screaming. her said her or her from and he like in Well, stop * * * Midnight.” Midnight” “10 to So I watched “10 to to see if there was any screaming might where there be some indication place somebody got stabbed. somebody R.W., 560, 568, A.2d 1304 N.J.Super. See State v. (trial (App.Div.1985) court’s to instruct the not to failure father-daughter program watch television incest in combina- serious, tion with two other unrelated errors constituted revers- prosecution error in for sexual assault on ible daughter), 514 A.2d grounds, on other modified (1986). Further, prosecutor’s application to because dire, apparently postdated jurors the film had not show voir questioned they Although had seen been about whether it. Midnight” during the there is no evidence that “10 to was aired trial, Midnight” jurors easily curious have rented “10 could to (The exposed potent message and have to the film. been judge acknowledged easy availability trial himself viewing speed, accompanied by film. After it at fast-forward it attorneys personnel, quipped: spoiled and he “I’ve court I everyone. guess ninety-nine you But for cents at 7-11 can it.”). Moreover, may jurors rent there have been who had Thus, already objecting seen the film. defense counsel argued: this evidence I the name of the film was first mentioned to me I didn’t realize that [W]hen had I of it I seen this movie before. Once saw brief remembered portion jurors what the entire movie was. And we have in the same movie, entire may situation that all need to see is a brief remember theory they portion unjustly the entire film I think would that, too,

behind operate detriment of the defendant. nothing palpable juror The trial court did about risk Astonishingly, familiarity with the film. the court seemed have did not segments convinced itself that themselves running and therefore the show “a sex maniac about” confuse with the sex maniac featured would not assumption, that the the film. With that the court rationalized probative substantially outweighed preju- its value of the film However, segments the film dicial effect. it is clear that running committing showed “a sex maniac about” themselves murders, profoundly irretrievably preju- multiple and were dicial. film,

Further, they have jurors if the actual would viewed powerful messages: psycho- exposed been to its vivid and savage, cunning pathic killings grossly can be sexual laden advantage justice system take of a criminal criminals can technicalities, by justice only with and that true can be achieved retribution, system.1 There justice the criminal vigilante following the film contains the of the videocassette version of 1The container Midnight”: description of "10 To midnight, you'll your seat —here’s an clock ticks 10 to be riveted to As the action-packed police real life for comfort! Take thriller that’s too close to murder, get away legal loopholes to a clean-cut sex killer who uses other, right, cop the what he thinks is and "one side or add a who does Winsten, Post) (Archer you’re apt New York to remain neutral!" not Kessler, Angeles up tough a Los detective Bronson stars as Leo Charles Davis) (Gene genius concocting cunning psycho against alibis whose erotically only by But surpassed stimulated crimes. the horror of his is mistake, daughter choosing cop's spunky [ ...] the the killer makes a fatal go target, forcing man on man. and Bronson to as his number one heroes, king tough-guy undisputed Charles Bronson is of America’s partner Geoffrey by Lewis as supported and Andrew Stevens as his rookie lawyer. script cynical a hard look at the William Roberts' takes the killer’s by exceedingly insanity country, well made” laws in this and "the film Midnight master-of-suspense Thompson it before J. Lee 10 To [...]. —see late! it’s too vigilante viewing independent that it advocates of the whole film reveals An fact, justice system. inadequate In the justice response to an criminal as justice system. against the criminal film is riddled with broadsides entire way harpoons follows: "The the memorable are as Some of Bronson's more there, they’re endangered maggots you’d an protects out think law those lawful, legal of species”; now it means some kind when meant "I remember lawyer] gets off he’s won the loophole"; defendant “If murderer’s defense [the Superbowl he’s a hero.” and to all the scum out there rules, promoting gut freely over instinct court and evidence Bronson flouts incriminating process. Specifically, evidence sur- Bronson fabricates due planting sample it procuring the victims and reptitiously from one of a blood testify partner, scrupled at the due clothes. When his on the murderer’s fabrication, trial, perjure exhorts him to this Bronson learns of murderer’s forget legal ("You and do what’s go what’s that courtroom and himself right"). unscrupulous. lawyers seedy We see the paints and defense The film Indeed, insanity. coaching feign end of at the how to counsel him murderer’s film, (he police the had been fired from Bronson when the now ex-officer the police evidence) fabricating apprehended and the the murderer has force for cleverly away, the recites preparing the murderer to take the murderer are lawyer. learned from his routine he justice. vigilante grace As the the theme of is the note on The final scene away, he is tells Bronson that police preparing him the murderer are to take you revenge promises "All on Bronson: He in control of himself. sick and not day get law. out. That’s the up, I’ll me but not forever. One can do is lock way messages may is no to be confident those have deliberating i.e., on the if brought jury, jury the been to bear death, not vote to convict sentence to defendant would did suggestion It is again. type free to kill the should capital-murder to a trial of jury not be communicated the See, 323-25, Koedatich, e.g., case. (1988). Further, lurid, images violent from A. 2d 939 easily jurors. would film not be erased from minds of the essence, bloody gruesome film itself is so its message applicable so inconsistent with the law to the case that completely ability could mislead and blot jury it out its deliberate.

Still, State, concurrence, with this contends that Court’s segments any error in the admission of the film was harmless argu overwhelming guilt. an because evidence Such film, showing ment the fact that overlooks absent might found jury well have that defendant’s conduct indicated something purposeful example, murder. For less than attempted might during have found that the course of an robbery, panic had victim out or fear of struck the being dying, he was identified. Once realized she dead or he disposed body in Even if panicked further and of her a creek. film, admissibility this Court is uncertain about the of the this procedural capital protections a in which for is case concerns intensify of the need to uncertainties in favor the resolve Bey, commanding. defense becomes I). (1988) in (Bey .2d846 of solicitude demanded a A The level capital prosecution tips the balance.

Moreover, effect is prejudicially the harmful of the error not During sentencing phase, example, the conjectural. for the factor, c(4)(c) aggravating of which jury presence found the the likely depravity quite viewing includes of mind. It is that the you fucking world!" hear from and the And I’ll be back. You’ll me ... whole won’t," through Coolly responding him the forehead. "No we Bronson shoots finding prosecutor, the film its because of contributed to the film, segments appreciating impact expressly the of the tied the (c)(4)(c) aggravating to the factor: go of mind, And if we talk about a let’s to the issue the finally depraved overwrought so movie he described. believe man was that Can this you guilt jury find the feet of this when he that he should compassion mercy to what in this That is, to describe the saw courtroom? his you proceeds police helping a he and was the to describe movie that had seen police ability screaming he Is how the victim was before killed her? that understand gentlemen, of I submit to ladies and that this case reeks the you, depravity? goes mind. And the foul stench of what he did far defendant’s depraved going driving it shows was on head, a someone’s because what beyond spike time____ saying: in his at the And he look, mind proceeds help cops by guy if it. kills there’s a seen Here’s what some movie, you’ve happens: screaming, girls doing, this is so forth. You of what couple they're they’re get was not to to believe in saw that. The evidence of that movie presented you seeing guilty it were meant was but was murder, what he any you way at this his of mind. That offered even more to show state point importantly highly guilt the trial, relevant and in the but important phase evidence explaining so now he’s that can now, you it’s even more because you way things thinking of and the kind of see this courtroom kind of that he was mind this man had he committed the acts said you’ve already when doubt. he’s done a reasonable beyond segments prosecutor It is relied on film clear arousing passion jury to a solely purpose It impose death sentence. impel level that would it to Poe, 21 equally he Utah 2d clear that succeeded. See State (1968) (trial by court its discretion 441 P.2d 512 abused autopsy of gruesome slides of permitting jury see color have adduced all the facts that could been victim when material by uncontradicted viewing the had established by slides been purpose of arous- showing slides served the sole testimony; not recommend life ing passions they “so that would that that evidence did imprisonment”). It cannot be assumed jury’s deliberations on criminal impact a similar on not have guilt. defendant, issue, relates raised

One final jury’s film on deliberation impact of the prejudicial adduced charge. State aggravated-criminal-sexual-contact excerpts Viewing charge. the film marginal on evidence vivid, imported prejudicial images have of sexual surely would deliberations, injecting powerful sug- jury’s into the aggression depravity Images sexual into the case. of nude gestions of murders, attack, might well conveying the notion of sexual persuaded jury aggravated to find sexual contact on have (The point borderline facts. film itself makes the otherwise Bronson, directly sexually motivated. As murders are —the case, assigned in plays who the detective the movie penis.) uses a knife The State’s theorizes: the murderer as prejudicial reliance on the film confirms its and reference to and charge. respect harmful effect with to the sexual-contact segments Beyond question probative worth of the film minimal, prejudice capacity its and confuse overwhelm- death, life and as as the ing. The decision between well guilt, might hinged have on the determination criminal film. I reverse defendant’s convictions admission of the would sexual the trial court erred of murder and contact because excerpts. the film failing to exclude

III. acknowledges does not The Court that defendant’s conviction properly eligibility, death as the trial court failed to establish Gerald, charge jury capital murder under (1988). 228, 250-255, at 593 A.2d at 549 A.2d 792 Ante N.J. reasoning agree I on this issue. 279-281. with Court’s State, however, Court, disagree, requested by I that the non-capital to one of simply can mold defendant’s conviction explained 593 A.2d at 268. As I have murder. Ante elsewhere, given a cannot certain that had the been we clearly proper charge on murder that included and full and murder, capital non-capital it would differentiated between guilt respect to rejected have a determination of both form of homicide had been established have found that lesser 128, 192, 2d 624 Perry, 590 A. the evidence. State (1991) (Handler, J., concurring part dissenting part);

285 Hunt, 407, 409-10, supra, at A. 2d 1259 State v. 115 N.J. 558 J., Further, (Handler, dissenting). disposition because of its of issue, relating on this fails to reach to case the Court issues sentencing issues, arising of phase defendant’s trial. Those aggravating from the State’s notice of and its decision factors prosecute capital to this matter as a case in the face of factors, of inadequate aggravating implicate evidence funda concerns, such, due process mental fairness and warrant additional comment.

A. 132, (1984), McCrary, In this State A.2d 339 pretrial judicial sufficiency review of Court sanctioned supporting aggravating propos- evidence factors that the State prove during sentencing proceeding. allegation es The aggravating factors has “momentous effects. Without notice factor, there death proof aggravating of an can be no penalty.” Id. at 478 A.2d 339. proceedings in case the trial refused to pretrial

At this court McCrary hearing adequacy to determine the conduct a c(4)(c). supporting aggravating factor It ruled that evidence aggra- hearing there other such a was obviated because were factors, c(4)(f) challenged, and vating (g), that were not case. presumably would remain (Law N.J.Super. 495 A. 2d 483 Spotwood, State here, namely, Div.1984), directly question raised addressed the chal pretrial hearing to a entitled whether defendant long as lenge sufficiency any aggravating factors as challenged. that is aggravating factor there is another it to establish Spotwood, gave notice that intended The a death support sentence. aggravating two factors aggravating the two factors. to dismiss one of defendant moved request, stating that rejected defendant’s court sought in which McCrary dealt with situation alleged prosecu- aggravating factors of both dismissal situation, reasoned, tor. In that the court dismissal of both dispose death-qualified jury factors “would of the need for a separate sentencing hearing, and a and would free defendant specter penalty.” N.J.Super. from the of the death 495 A. 2d 483. The court contrasted that situation with the one it, declaring unchallenged existence of before one would, event, any aggravating require factor in the case to and, hence, proceed capital pretrial hearing as a one to challenge aggravating another factor would be “a needless judicial if exercise of action.” Ibid. It noted further that convicted, defendant were to be he could then move to dismiss remaining aggravating prior penalty phase. factor Ibid.

Evidently, Spotwood the court in believed the exclusive by hearing “need” McCrary only served is to determine Concededly, whether the State will seek the death sentence. important by pro- concern that is addressed the McCrary ceeding prosecution go is whether the should forward as a capital proceeding case. But the McCrary necessarily also Hence, capital go determines how a case should forward. inevitably implicated by McCrary hearing concerns are both prosecution presented capital whether and how a is to be as a case. question presence aggravating

There can be no that the of an dire, jury factor can affect the course and content of as voir guilt penalty phases. well as the trial itself in its both See 141, McCrary, supra, Aggra 97 at 478 State v. N.J. A.2d 339. vating frequently factors are based on evidence that is admitted Hence, guilt phase extremely important in the of the trial. it is likely defense counsel to know what evidence is to be likely introduced and how it is that evidence will be found support only aggravating sufficient to an factor in the but, well, subsequent penalty guilt trial as a determination of See, Marshall, supra, e.g., the criminal trial. State v. 123 N.J. (Handler, J., 240-42, dissenting). example, at 586 A. 2d 85 For selection, preparatory knowing jury whether a harbors

287 prejudice bias feelings respect or with to circumstances that sentencing, i.e., guilt be relevant as well if the can conviction, a prior has murder v. e.g., Penning defendant State ton, 547, (1990); .2d816 if the has 575 A or crimes, 439, other 119 575 e.g., Long, committed State v. N.J. (1990); 435 A.2d or if the defendant committed a sexual assault victim, Zola, 384, on his 548 .2d 1022 e.g., State N.J. A (1988); II, supra, State A .2d v. Williams N.J. 1172, or if the of his particularly victim was vulnerable because condition, (Samuel) Moore, e.g., supra, her status or or State v. 446-51, Moreover, may .2d critical. 585 A all be virtually may applied differently identical evidence be See, respect guilt Pennington, sentence. e.g., (in capital prosecution, prior .2d816 supra, 119 N.J. 575 A aggravating murder that can be an factor in conviction used as phase guilt can used penalty credibility of trial be to affect Thus, may substantially phase). strategy a defendant’s influenced whether evidence that on both the issues of bears phases guilt penalty should or will be used both Pitts, 580, (1989) .2d trial. See 116 N.J. 562 A 1320 State v. guilt phase in (psychiatric evidence that was not admissible penalty phase); in mitigating could be used as evidence cf. (evidence Marshall, 1, 85 of supra, 123 586 A .2d N.J. State guilt reputation bearing phase on motive in good character and sentencing phase). factor Fur mitigating relevant to in also thermore, itself, determining admissibility in of the trial court evidence, 4 to in may required engage under Rule be Evidence probative and complex balancing delicate of worth a more and duty re potential when evidence does double with prejudicial Clausell, guilt penalty. of spect to both the issues and Thus, any 298, .2d221. the elimination of supra, 580 A aggravating factor for possible use of such evidence as an strategy fundamentally alter sentencing purposes can defense of trial. as the court’s conduct the as well must, course, the of dictate Fairness concerns for defendant in a cause. The proper procedural capital course bifurcat- the system necessarily jurors who ed-trial means that the same will, guilt on the must determine the defendant’s or innocence murder, guilty capital of a of determine return verdict of also Thus, lives the or dies. from the outset whether case, strategy counsel formulate a with the defense must trial phase begins, sentencing the mind. Even before voir dire aggravating factors plan against counsel to defend the must may phase. sentencing at the As one com- be submitted noted, mentator has hearing

it is to assume that trial evidence reasonable the experience deciding guilt on the of the defendant will influence decision penalty phase strategy. making. of such influence controls trial Certainly possibility guilt jurors begin during with a phase story [CJapital penalty developed jurors [Ojnce has to resist been are story phase____ developed, likely guilt Hence, reconstruction of it. are necessarily phase penalty phase pointing integrated need for trial and penalty interdependent, phase Challenging strategies. Punish- “Death Capital phase [Hans, by Jury,” (K. 1988).] ment Inciardi, eds., Haas & J. in a overwhelming preparing a defense Given burden case, capital Goodpaster, Adversary System, Advoca- see Cases, 14 cy, and Assistance in Criminal Counsel Effective (1986), Change should N.Y.U.Rev.L. defense counsel & Soc. defending against saddled burden of be additional pre- aggravating might have been at a factors dismissed trial, must, hearing hearing. McCrary trial at a before Counsel evi- opportunity challenge sufficiency of the have factor, may aggravating dence of for that factor substan- any trial. tially affect the course conduct entire that, may be, notes, the Califor McCrary It contrast to statute, capital-murder prac capital-murder Jersey nia the New charged in an require aggravating factors tice does not “accusatory McCrary, pleading.” or indictment distinction, however, not bear on 478 A. 2d 339. That does availability pretrial to a defendant a full capital whether the of is hearing evidentiary sufficiency aggravating of factors the though need not be aggravating essential. Even factors

289 grand pretrial presented by jury, to or found formal notice of as a aggravating absolutely factors is essential matter of process. due fundamental fairness and See N.J.S.A. 2C:11- Hence, 3:13-4(a). 3(c)(2)(e); „ aggravating R. whether such in the original factors must be included accusation or indict trial, only ment or in a notice before the reasons entitle a equally challenge compelling. to such factors are Court, 306, Superior Cal.App.3d 146 194 Richards v. Cf. (1983)(“California Cal.Rptr. permits pretrial challenges 120 justify unsupportable ‘special impo circumstances’ used to unchallenged penalty, ‘special sition of the death even when remain.”), grounds, People rev’d v. circumstances’ on other Morales, 527, 64, (1989). 48 Cal.Rptr. Cal.3d 257 770 P.2d 244

Moreover, Spotwood strong fails wholly to accommodate our by is policy wrought to avoid the unfairness and mischief that Christener, overcharging. 71 E.g., State N.J. 362 A.2d (1976). type foreboding of more That error has even capital-murder in the prejudicial consequences context of See, Rose, prosecution. e.g., supra, at J., factors, (Handler, dissenting). Aggravating A.2d 1058 bear the characteristics of substantive criminal which basic offenses, ordinary capital- prosecutions murder into convert They enormously gravity trials. inflate of murder Spotwood, supra, that confronts the defendant. State v. crime prior N.J.Super. 495 A.2d That to the com- 483. will become aware guilt-phase mencement trial the aggravating establish existence of that the State intends to factors, conditioning jury to believe that the case inevitably case, more extremely capital is obvious. The grave, invoked, pervasive and are the more aggravating factors that respect impression jurors will persistent charges, increasing prosecu- gravity greatly extreme recognized have a trial risks the defendant. We torial faced question ju- obligation, request, to on the defendant’s court’s weigh fairly ability in voir their evidence rors dire about II, present in the case. light aggravating factors Williams (“the supra, 113 at 550 A. 2d 1172 trial court’s refusal might provide important insight any that into questions to allow rape accompanying murder juror’s concerning a attitude error”). challenge ag A to an constitutes serious successful jury need exam gravating factor eliminates the for the to be If respect aggravating ined with to that factor. the defendant successfully presence any aggravating the of can eliminate guilt trial, the he or should factors before the initiation of she given so. opportunity the to do Moreover, permit challenge the failure to a defendant to aggravating very practical and factors can have concrete detri Here, example, although aggravating mental for two effects. factors, (c)(4)(f) (g)), unchallenged, remained those factors effectively acquitted the the jury were removed from case when 252-260, robbery. defendant of See discussion infra Indeed, aggravating c(4)(g) 2d at factor was not A. 280-284. Thus, successfully jury. even had defendant submitted c(4)(c) factor, challenge aggravating the case been able to the might capital prosecuted not have been or continued as a prosecution.

Further, though inception prose- even the case from its was cause, jury capital possibility cuted there is a that the as a might guilt the same determinations with not have reached charged respect had defendant able to the several crimes been c(4)(c) jury the Although from trial. the to remove factor respect formally aggravating with factors instructed verdict, guilt-phase jury until after the embarked on guilt of guilt and entered into its deliberations trial understanding guilty that if the defendant were found distinct murder, expected required capital it to consider of would be penal- bearing appropriateness on the of death the evidence ty, its determination would involve consideration Thus, surely aggravating jury factors. sensed that jury case and capital believed that case was deserved to die reasonably could conclude that defendant crime, aggravating his and that there was sufficient evidence context, justify death sentence. In this factors danger compromise there was no would conclude guilt presence potential because of the its determination factors, simply because it be instructed aggravating would not required or this aggravating factors to determine existence on case, phase penalty of the is unrealistic. until the short, accepted by Court for impliedly the reasons challenged McCrary hearing aggravating on factors denying a unpersuasive. surely Those reasons are are insubstantial fairness, which outweighed by of fundamental considerations hearing. such a call for

B. Further, due-process concerns are fundamental fairness c(4)(f) aggravating implicated in the State’s submission majority’s penalty-phase of the trial as well as factor in the validly c(4)(g) may have been sub suggestion that the factor attempted aggravated sexu felony had murder mitted based charged defen charged sponte. The State al contact been sua aggravated separate offenses of in the indictment with dant charged robbery. State also contact and The criminal sexual murder, predicate felony which the felony for defendant with is enumerated robbery. Robbery under 2C:51-1 N.J.S.A. (Code) felony as a Jersey of Criminal Justice by New Code case, felony. can, charged predicate as a See this be as in (which is a 2C:11-3a(3). sexual contact Aggravated criminal penetration), N.J.S.A. does not involve offense that sexual Code, and 2C:14-3a, felony under the is enumerated a felony for murder. felony a predicate hence cannot constitute felony murder. robbery and acquitted of The defendant aggravated criminal sexual However, it convicted defendant, understanding aggravated that appeal, On contact. argues the evidence felony, a is not criminal sexual contact sexual aggravated criminal his supported conviction aggrava- attempted support the offense would also contact (ie., attempt ted an sexual assault to commit a sexual assault Hence, involving penetration). defendant contends that be- aggravated felony cause sexual assault under the Code and “attempt” equivalent to commit a crime is considered the crime, charged sponte felony should sua the court have attempted murder on aggravated the basis sexual assault. Whether the court these circumstances should have charged of felony predicate the crime murder on the based attempted offense of sexual poses assault difficult and del problem. icate have done To so would have been consistent policy rationally with our all forms of supported homicide evidence, they whether be lesser-included or alternative offenses, placed See, should jury. e.g., before the State v. Grunow, (1986). policy A.2d 708 That as significance greater sumes even context of capital- prosecution. Rose, supra, murder See State v. 112 N.J. at 552- J., Court, (Handler, dissenting). 548 A.2d 1058 never theless, claim, rejects defendant’s that implying to allow such a charge theory would be unfair to Its defendant. of “unfair problematic. ness” is jury ifWhat had convicted defendant of intentional murder and then had a sentence death on this sexual

premised viewed as attempted penetration, aggravating an factor? We could well if the envision court on its own jury motion had submitted this and the had not felony found only sexual but attempted a death sentence on what penetration predicated it, [Ante troublesome it be issue would to review on at 256, 593 A.2d at appeal. 282.] suggest The fairly Court seems to that in to order be tried for guilt charge felony murder, criminal on a new based defen- unfairly exposed dant would penalty. be to the death I cannot believe, however, that complete defendant’s entitlement to a charge rationally supported on all offenses that are by the could, effect, require evidence in an election on whether or not to face the penalty. death

Aside underlying from the merits of defendant’s claim on this point, problem with the Court’s is that it view assumes that jury might validly attempted have based a on death sentence disagree absence of such I because penetration. sexual formal being specifically included the State’s an offense factors, may not used aggravating that offense notice of to of death. the State obtain a sentence 2C:11-3(e)(2)(e) 3:13-4(a) require that the Rule N.J.S.A. aggravating factors the give the defendant notice State sentencing. McCrary, prove seek to See State State will requirement 2d is a A. 339. This strict supra, 97 circumvented; adequately it allows a defendant that cannot be strategy may save his craft trial prepare a defense and 247-253, A. 2d at 278- supra at her life. discussion or See 281. requires prove c(4)(f) the State aggravating factor escape detection committed a murder order to Here, underlying apprehension for an

from or offense. offense; underlying robbery as the expressly relied on interlocutory Appellate Division indeed, defendant obtained an offense that was specify requiring the State order hearing, c(4)(f) Subsequently, pretrial at a factor. basis would that the State specified to the trial court prosecutor rely robbery: (DEFENSE COUNSEL): to a homicide that statute refers [T]he

MR. KLEIN avoiding to another offense. detection as was committed for purpose right. ail I— Weil, So, THE COURT: the other offense? is what is Mr. KLEIN: The question THE Robbery. COURT: hasn’t, Honor. your that but prosecutor

MR. KLEIN: You answered alleged the statute. as a under felony is robbery predicate THE COURT: [0]nly it? it? Isn’t intention, robbery, Isn’t that your PROSECUTOR): (THE Honor. Yes, your MR. WIXTED be clearer. That couldn’t THE COURT: said it on the record. he MR. It’s clearer because KLEIN: ********' alleging which he was that the offense I

THE ... saw immediately COURT: endeavoring actions was that robbery. of his way to avoid by client was your legally THE both COURT: I find factually, compliance [the direction and order the that has Appellate Division’s] my prosecutor responded saying the offense is robbery. acquitted jury, overemphasized, The it cannot defendant of robbery, felony and the derivative offense of murder. Never- theless, sentencing phase, at prosecutor argued the the for aggravated defendant’s conviction contact sexual could be robbery c(4)(f) support substituted for and used to the factor. agreed The trial prosecutor, court with the and ultimately the c(4)(f), concluded that based aggravated on sexual contact “offense,”, as an had been established and was of sufficient weight justify imposition to the death of the sentence. process

Due requires specify that the offense on rely c(4)(f) which it in submitting intends to factor with enough specificity prepare so can defendant to meet against allegations. and defend himself the State’s See State v. 194, 238, (“Because Coyle, (1990) 119 N.J. 574 A. 2d 951 capital case, stakes involved in compel[s] the [this Court] proofs State to offer any applicable all its aggravating factor against trial.”) his or her first (quoting State 521, 541, Biegenwald, (1988)); 542 A.2d 442 New 192, 209, Jersey Byrne, Parole Bd. 460 A.2d (1983) (“Due process is procedural flexible and calls for such protections demands.”). case, particular as the situation this specifically State did in fact charge robbery both as a in the substantive offense indictment “offense” consti tuting c(4)(f). the aggravating factor of It offers no sensible why permitted reason depart require it should be from the another, ment of belatedly uncharged actual notice and use offense to death secure a sentence. prosecutor alleged predicate could have than more one c(4)(f) factor,

offense for Although but failed to do so. there relating offenses, was evidence adduced sexual rely support c(4)(f) State chose not to on that evidence to Moreover, suggest nothing factor. there there was any surprise prosecution visited a result of unantic- of a generated new evidence developments ipated trial State in the revealed to the previously not sexual offense Further, suggestion that there is no investigation. its course of theory particular to commit to a induced the State defendant Thus, of the evidence evidence. all and later introduced new time it anticipated by the at the fully to and was available underlying rely robbery on as the formally stated that it would proper request c(4)(f). response to defendant’s to In offense defense, speci- the State prepare his specificity in order c(4)(f)aggravat- robbery for the underlying offense of fied the it discerns theory alter its because The State cannot ing factor. of the same evidence. advantageous view strategically more switching theories a defendant simply It cannot blindside one fails. when the first c(4)(f) factor. sum, found the jury could not have offense, and neither predicate as a

Robbery was eliminated aggravated attempted nor sexual contact aggravated criminal predicate offense charged as a (penetration) was sexual assault aggravating factors. notice of in the formal any invalidate Similar, would compelling, reasons if not more That factor c(4)(g) factor. revive the attempt by the State to certain enu- in the course of murder committed aggravates a robbery, or the felonies, including sexual assault merated c(4)(g) factor was felony. The attempt commit such a robbery on had relied the State because submitted factors, aggravating felony in its notice predicate as (Recall majority that the robbery. acquitted of was felony charged sponte trial court sua that had the suggested (penetration), the assault attempted sexual murder based may have assault attempted sexual offense substantive penalty phase; in the aggravating factor triggered an could have assault attempted sexual implied thus majority factor, though c(4)(g) even felony predicate as a served after defendant dropped by the State had been that factor relied which the State felony on robbery acquitted —the State, factors). The aggravating the notice of pursuant to indicated, any any did not include sexual offense as a basis for aggravating significantly, factor. More the defendant was not charged with the crime substantive of sexual assault or at- submit, State, tempted may sexual assault. The I never base aggravating felony an factor on a substantive crime or for charged which a defendant has not been and convicted in the guilt. trial to determine criminal In capital reimposi no case that we have reviewed since the penalty c(4)(g) tion of the death has the State submitted the having factor without been indicted for and convicted (Samuel) Moore, See, e.g., v. underlying felony. State of the N.J, 420, supra, 122 864; McDougald, State v. 585 A. 2d 120 523, (1990); 378, Hightower, N.J. State v. 120 N.J. 577 A. 2d 419 Gerald, (1990); v. 40, State N.J. 577 A.2d 99 113 549 A.2d 792 (1988); II, 123, Bey State v. (1988); 112 N.J. State 548 A.2d 887 Bey supra, v. I, 45, 112 N.J. 548 A.2d 846. That is so because murder, guilty felony in order to found one need have only underlying felony; the intent to commit that intent guilt felony suffices to establish of both the and the murder. contrast, c(4)(g) found, for the factor to be the defendant will Hence, already capital have convicted of been murder. both the intent defendant must have formulated to commit knowing purposeful or murder the intent to commit Ramseur, supra, See State 106 N.J. underlying felony. 2,n. (distinguishing c(4)(g) 189 524 A. 2d 188 factor from the doctrine, felony-murder emphasizing those convicted murder, only felony murder, purposeful but not will not be subjected c(4)(g) penalty). to the death factor involves separate culpabilities “two and distinct with conduct constitut State, Brewer v. 275 Ind. ing separate See two crimes.” (1981) (Debruler, J., dissenting 911 N.E.2d concur ring) factor). (discussing analogous aggravating Indiana’s Per mitting aggravating c(4)(g) to submit factor in the State crime, underlying predicate of an indictment or absence for effect, guilty allows the defendant to be tried and found Const., See N.J. charged. of a crime for which he has not been I, (“No person para. art. shall be held to answer for a criminal offense, presentment on the grand unless or indictment of a jury____”). clearly impermissible. That is

It is violative of also fundamental fairness. The determina subject tion that a defendant aggravating to an factor involving statutory felony is tantamount to the determination defendant has committed that substantive crime. See Ramseur, supra, 524 A .2d 188. The underlying felony deprives jury failure indict for the opportunity formally culpability to focus its deliberations on right alone. It denies defendant the basic to have the independently guilt charge apart determine or innocence on that crimes, and, charged from its consideration of other more importantly, apart from its consideration of the death sentence. charge The State should not be allowed to withhold the criminal constitutes substantive offense when offense also aggravating for an factor and arises out of the same the basis supported by criminal event and is the same evidence. Cf. 510, (1975)(State must Gregory, A.2d 257 State fractionalizing prosecution). avoid felony also Predicating c(4)(g) factor on an unindicted recog jeopardy. of double We have implicates the concerns aggravating guilt. criminal Determi nized that factors shadow trigger jeopardy. aggravating factors can double See nation of 13, 68-72, (1987). 524 .2d 130 Biegenwald, 106 N.J. A State v. in this case with Surely, also obtains. as occurred The converse acquitted robbery, if a defendant has been tried and respect to subjected underlying felony, he or she could not later be of the jury determina punishment felony. on that Without a to based crime, felony a a guilt underlying of an as substantive tion of deprived may deprived acquittal. of an He is also defendant be felony as a jury consider the opportunity of the to have murder, guilt felony possibly a determination basis for 253-255, discussion, supra non-capital murder. at See required charge each If the is not to A.2d at 280-281. crime, whip- may well be felony as a a defendant substantive Thus, finding c(4)(g) sawed. because a of the requires factor jury guilt ascertain underlying defendant’s beyond doubt, felony or offense a reasonable effectively subject punishment felony to for a that the State prosecute has chosen not to a crime. enjoy greater advantage by using State will tactical felony aggravating

unindicted as the basis for an factor. Even though already guilty defendant will have been found of capital murder, procedure jury this enables the to consider defendant’s guilt felony determining at the same time it is whether envisage procedure he deserves to I die. cannot that would be more unfair to a criminal defendant. See Furman v. Georgia, (1972); 408 U.S. 92 S.Ct. 33 L.Ed.2d 346 Ramseur, 382-404, supra, State v. 524 A .2d 188 (Handler, J., dissenting).

Thus, felony predicate aggravat when constitutes a of an factor, ing required charge the trial court should be clearly finding only that it could base a of that factor on a felony for which the defendant was convicted. The Court’s dictum, portentous 282, suggesting ante at 593 A .2d at aggravating that an factor could found on the basis of a felony specified factors, aggravating the State’s notice of convicted, or for which defendant has not been is troublesome say case, State, knowing the least. In this at the outset support that there was evidence aggravating e(4)(g), factor opportunity lost its aggravated to submit that factor based on sexual assault not indicting defendant for that crime and not giving prior defendant notice to trial. The State could not trial, decide simply to submit the factor at the end of the on the sponte charge felony basis of the court’s sua on murder encompassing the sexual offense. sum, prosecutor permitted argue was the existence c(4)(f) aggravated contact, based on criminal sexual prejudicial consequences.

undeniable invalidly That factor was jury. submitted to the possibility There was a distinct that the c(4)(c) factor been which submit could have evidence Further, c(4)(g) dropped the State shown be insufficient. robbery. Consequent- acquitted when defendant factor factor, aggravating there is a remaining valid ly, without have rendered non- strong likelihood that the case would been capital.

IV. part I and concur in expressed, the reasons dissent For part opinion. with the Court’s part; part in —Chief Justice reversal For affirmance O’HERN, CLIFFORD, POLLOCK,

WILENTZ, and JUSTICES and STEIN-6. GARIBALDI HANDLER-1.

For reversal—Justice A.2d 304 HALL, PETITIONER-APPELLANT, OF v. BOARD ANNE JEFFERSON, OF OF THE TOWNSHIP EDUCATION COUNTY, RESPONDENT-RESPONDENT. MORRIS July 1991. Argued 1991 Decided March in the notes officer even written peripheral took down Its anecdotal value is the statement. the State’s case. might guilt if this We inclined to reverse the convictions less-than-overwhelming guilt. case evidence of See were a (D.N.J.1985) (introduction 533 Rafferty, F.Supp. Carter potentially preju of racial animus into case was so evidence (3d ease), aff'd, 826 F. 2d 1299 that it affected outcome of dicial Cir.1987), denied, 2d 98 L.Ed. cert. 484 U.S. S.Ct. (1988). very marginality of the evidence It is the We find it inconceivable prejudice. establishes the lack of facts swayed jury from the essential this evidence would have guilt multiple overwhelming evidence of the case and the — in the form of eyewitnesses, physical evidence disinterested blood, and, fibers, finally, the confession of shoeprints, defendant. jury’s The Issue. Does B. Gerald eligibility? establish death verdict issue, this there has Although have often visited we process that in the we are misapprehension persistent been jury’s findings of intent. second-guessing juries about the doing. are Even understand what we public obviously does not seem to confuse opinions on our lawyers who comment

Case Details

Case Name: State v. Dixon

Court Name: Supreme Court of New Jersey

Date Published: Jul 25, 1991

Citation: 593 A.2d 266

Court Abbreviation: N.J.