*1
Abby P. Ruth Deputy Schwartz and Bove Assistant Defenders, (Ivelisse Torres, argued for appellant Public the cause Defender, attorney). Public Owens, General, Attorney Deputy argued
Debra A the cause (Peter Vemiero, respondent Attorney for Jersey, General of New attorney). opinion of by Court delivered
STEIN, J.
Defendant, Feaster, Richard was tried and of convicted following Donaghy: offenses connection of with death Keith conduct, purposeful-or-knowing murder his own N.J.S.A. 2C:11-3a(1) murder, (2); 2C:11-3a(3); felony N.J.S.A. con- and/or murder, 2C:5-2; spiracy first-degree robbery, to commit N.J.S.A. 2C.T5-1; conspiracy robbery, N.J.S.A. to commit .armed N.J.S.A. 2C:5-2; possession weapon purpose, of an a for unlawful N.J.S.A. 2C:39-4a; possession of a shotgun, sawed-off N.J.S.A. 2C:39- 3b.
In penalty-phase accordance with the after a verdict rendered conviction, separate proceeding following murder see N.J.S.A. 2C:11-3c(1), noncapital defendant was sentenced to On death. counts, merged conspiracy defendant’s convictions into the related offenses, felony substantive and the murder conviction was merged purposeful-or-knowing into conviction for murder. merged The court possession weapon also the conviction for of robbery/murder an purpose for unlawful into the convictions. The twenty-year years imposed court then term with ten consecutive ineligibility robbery parole of as as a on conviction well five- year possession term the for concurrent on conviction sawed- shotgun. off 2C:11-3e; this Court. N.J.S.A. appeals right as of
Defendant 2:2-l(a)(3). convictions and sentence R. affirm defendant’s We death.
I
Facts began County Jury for defendant’s trial Gloucester selection many revealed on 1995. Because voir dire December knowledge for potential jurors in area had of a second murder charged, separately the attendant risk which defendant was County prejudice led court to discontinue Gloucester *15 12, 1996, 3, January January the court on 1996. On selection County to foreign impaneled that a Salem be ordered from phase place took from guilt case. The of defendant’s trial hear the the February through March 1996. The court conducted 21, 22,25,26 27,1996. penalty phase on and March A. The State’s Case following summary proofs fairly represents the of the trial
The jury’s guilt-phase supported that verdict. evidence 1. Events Murder Before culminating in Keith events the October death of The Donaghy originated young a friends within circle from Glouces- County. group principle ter members of this included defen- Sadlowski, Mills, dant, Daniel Michael Michael James Graves and Woodbury Heights a Kaighn. Defendant was native of while Park, County another mu- were from National Gloucester others nicipality. lolling, approached Kaighn weeks before the
Several explained handgun. to a that he and asked borrow Defendant weapon money that to him. a to collect his boss owed needed vet,” alleged “crazy his and Defendant that boss was ex-Vietnam necessary protection. repeated gun for his After weeks, requests spanning upon promise several and defendant’s pay gun, day’s acquiesced. for one use of Kaighn He $100 supplied twenty-gauge shotgun, defendant with a sawed-off ball, single commonly “slug,” lead to as a three referred Kaighn previously four “birdshot.” had sawed the barrel from the gun in picked up and retained the barrel his bedroom. Defendant gun Kaighn’s from house prior two weeks to the murder placed gym bag. it in Kaighn a blue told him He meet at Michael night. Mills’s house later that evening, Kaighn
That approximately arrived at Mills’s at house thereafter, p.m. Shortly 8:30 defendant arrived and returned the gun to Kaighn along all given with the ammunition he had been $30, day. in presented Kaighn explaining earlier He with pay his boss failed him the full amount to him. owed Others present night, party began, were house Mills’s soon during Kaighn gun which left and hid the and ammunition under- neath an old Kaighn bathtub outside the house. testified that the ingested party “paranoid,” cocaine he at the left him had and that gun he did not want to with on person leave his because of his apprehension by fear of law According enforcement authorities. Kaighn, gun that was the last he saw time until after the murder, although acknowledged subsequently may he that he have gun told Mills where the was hidden. Shiplee
Tina lived apartment with Michael Sadlowski an Zuzulock, Shiplee girlfriend, Runnemede. Kelly and defendant’s *16 frequently group. socialized with the other members Shi- plee early that in September testified late or October approached if keep gym bag her and he could in asked car, explaining parents recently her his him had “kicked out”' Shiplee obliged, of their house. and allowed defendant to store bag wagon. the in the back her station She was unsure placed bag whether in defendant Mills the the car. murder, prior
Subsequently, Shiplee but the still went to place daughter’s her stroller in the back the As car. she attempted heavy bag, to move it the she realized how was. it bag suspected that contained
Shiplee felt outside of the and the gun. Night 2. The Murder 6, 1993, up wagon pick Shiplee drove her station On October Cafe, in proceed to a bar Kelly and the Columbia Zuzuloek had County. Zuzuloek and defendant National Park Gloucester school, had their high on since resumed relation- dated and off in Florida. ship after from a brief residence defendant returned murder, leading up to Zuzuloek During the testified weeks by relationship precarious, characterized that their had become frequent arguments. deterioration of She attributed relationship increasing drug use. to their picked
Shiplee up Zuzuloek and the two arrived at the Columbia Mills, Defendant, p.m. sometime 6:30 and 7:30 Cafe between Sadlowski, According to already there. and others were Sadlow- car, Camaro, ski, Shiplee’s a 1986 Chevrolet he drove other brought defendant and Michael Mills the Columbia Cafe. both pool being at the group gathered had for a tournament held defendant, Shiplee approached revealing her without bar. gun, gym bag requested that he concern that contained bag agreed from car. to remove the remove the her Defendant leaving although Shiplee bag night, before was unsure wheth- eventually bag from the er it was Mills or defendant who took Shiplee parking had left the car unlocked lot. On car. leaving night, later that observed that the Columbia Cafe she bag her had been removed from car.
Shortly arriving, inquired of he after Mills Sadlowski whether money take could the Camaro and drive defendant to retrieve request. from defendant’s boss. Sadlowski declined the Defen- Shiplee if her car to drive dant then asked Sadlowski could borrow money Having from been instructed defendant to collect his boss. night previously that she should not lend her Sadlowski defendant, Shiplee Shiplee refused. Defendant then asked car him, him to if drive or whether she would allow take she would *17 Shiplee rejected car request. himself. each Defendant also asked car, Zuzulock if he could borrow her but she also refused and explained that she did not have access to it. Burkhardt, Park,
Renee a resident of National had also driven to the Columbia Cafe on evening of October 6. Burkhardt friend,” described defendant as a “friend of a and knew Mills dating because he was her Stryzek. friend Jennifer speak- After defendant, ing approached with Mills Burkhardt and asked to borrow her car. agreed Burkhardt keys and handed the to Mills.
Burkhardt testified gave that after she keys Mills the to her Oldsmobile, mother’s 1984 she observed Mills and defendant leave ear, the Columbia Cafe and enter the with Mills in the driver’s seat. Zuzulock also testified that leaving she saw defendant bar at p.m., around 8:00 and that Mills followed a few minutes Shiplee similarly later. testified few minutes after she saw bar, defendant leave the Mills left with Renee Burkhardt. She stated that defendant and p.m. Mills left between 8:00 and 8:15 However, they Sadlowski testified that left between 8:30 and 9:00 p.m. Shiplee then observed shortly Burkhardt return to the bar thereafter. 6, 1993, night
On the Donaghy October only Keith was the working attendant Family at the Deptford Township. Texaco in Smolenski, station, Dana frequent patron gas pulled into purchase the Texaco to gasoline p.m. between 8:20 and 8:25 When her, no attendant pulled came to serve she her car nearer to the peered office window and inside. She observed that the chair on Donaghy usually over, which sat had been knocked his saw body Frightened, on the floor. quickly away, Smolenski drove noticing Fortner, p.m. that it was 8:25 John frequent another customer, Family arrived at p.m. Texaco around 8:30 After pumping heaters, the kerosene he ap- used for his Fortner proached pay the office to Donaghy lying and saw on the floor inside. He nearby walked to the requested 7-Eleven and police. time, someone call the At couple about the same another request made a similar noticing Donaghy’s the 7-Eleven after *18 drive body. Family approximately a twelve-minute The Texaco from Cafe. the Columbia bar, leaving the
Roughly thirty forty-five to minutes after phone. pay at the Columbia Cafe from a defendant called Zuzulock Shortly the conversation was about. Zuzulock did not recall what returned, thereafter, to the bar. Defendant also Mills returned Zuzulock, According to to defendant five ten minutes after Mills. drugs, appeared using powder she noticed white to have been as Zuzulock nose. noticed that defendant and around his Sadlowski began argue when he returned to the bar. to
Defendant, Zuzulock, agreed that Shiplee and had Sadlowski they Shiplee’s apartment after would all return to and Sadlowski’s leaving began group to leave the Columbia Cafe the bar. pool p.m. Shiplee finishing game around 10:00 As was her last shot, leaving, contemplating her she circling before the table next say overheard defendant to Mills and that he could Sadlowski trial, guy get any money.” killed the At “believe he didn’t to denied that defendant had made such statement Sadlowski him. Cafe,
Leaving drove defendant to Shi- Columbia Sadlowski plee’s apartment, At apartment. defendant insisted on watch- ing coverage describing o’clock the eleven news. When the aired, Donaghy requested murder Keith defendant the volume part told After be raised and Sadlowski “check this one out.” over, segment was had Sadlowski observed defendant stated, sweaty “I I “fidgety,” become and that he can’t believe Why did this shit. I can’t believe this. me? You On the know.” broadcast, apartment balcony, again told after the news defendant Sadlowski, “I can’t I did did not believe this shit.” Sadlowski press for defendant additional details. Zuzulock,
Shiplee separately the bar with also left and the two planned Shiplee’s apartment. They to return and Sadlowski’s apartment drove twice but did not see car Sadlowski dropping driving. go was Zuzulock then decided to home. After off, immediately apartment, her Shiplee returned to her where she argument became embroiled in an with Sadlowski. When defen- injected fight, him, dant himself into Shiplee said to “Fuck you, just Rich. You killed somebody.” went out and Shiplee produced testified at trial that the comment “a blank look on his face, whatsoever, feeling, like there was no expression to the on face, just his so it you just like what say did to me.” However, prior prosecutors, statement Shiplee stated that defendant had denied the accusation. Sadlowski also testified that Shiplee he did not allegation. hear make the Sadlowski apartment thereafter left the to drive defendant way car, home. On the engaged shouting patrons match with a bar apartment. across the street from the *19 car, As defendant and Sadlowski entered the defendant volun- teered that he the “blew dude’s head off.” Defendant also lament- ed to up Sadlowski that he tonight.” “screwed At point that thought Sadlowski referring defendant was quarrel to the he had added, with Zuzulock at the bar. Defendant “I can’t I believe did During home, this.” the ride tearfully explained defendant that place” “his brains went all repeated over the and that “I can’t believe I did dropped and, this shit.” Sadlowski defendant off vowing not to any way, become involved in avoided defendant after October 6.
3. Events the Murder After autopsy The Donaghy single revealed that from shotgun died a wound to the head. suggest No defensive wounds existed to that struggle had injury occurred. The suffered was a “contact” wound, meaning gun that the barrel placed of the had been directly against the skin when fired. into Shot the side of the mouth, slightly the bullet followed a trajectory, blowing downward Donaghy’s effectively out teeth destroying and his brain before trial, exiting through despite the back of his head. At defendant’s objection, the court employ mannequin allowed the State to with through a needle its head to trajectory demonstrate the by Donaghy night the overalls worn on The blood-stained bullet. the admitted into evidence. of murder were Donaghy’s pockets. of
The from one murderer stole $191.32 lay in he only Donaghy’s pockets plain view as Because one money Donaghy’s ground, the because remained dead on and exposed, the State theorized pockets other were Donaghy. money the until after he killed did not take that, argument before he arrived supported That State’s Texaco, gas to kill as as to Family defendant intended well rob station attendant. investigation Donaghy’s proceeded into murder with- initial Pine, 1993, Ronald an attend-
out much success. On October Deptford, ant at an Amoco station was stabbed death. On leading for Amoco offered information $5000 November killer; apprehension and of Pine’s on November conviction $5,000 Jersey with a New Gas Retailers Association followed leading for information to the arrest and conviction reward Jersey gas any station owner attendant. murderer New murder, Shortly Shiplee after Pine’s Zuzulock mentioned Suspecting she a cut on hand. that defendant noticed defendant’s injury in committed the second murder suffered fearing might again, stabbing, that he kill course of 3, Shiplee’s lawyer, Shiplee lawyer. contacted On November Hoffman, Joseph Richard of the Franklin contacted O’Brien Department. Shiplee then Township Police O’Brien called *20 in gave implicating both crimes. she statement defendant eventually charged with both murders. The Defendant ultimately per- no indictments were severed and witnesses were during murder the trial. The trial mitted to mention second that, initially if impeached court ruled her motive obtain money, testify knowledge of Shiplee could that her reward prompted second murder and fear of defendant’s future actions The did not her contact the authorities. defense therefore question during attempt to about the reward the State’s case. her Division, interlocutory appeal, on Appellate The reversed ruling permitted impeachment of Shiplee allowing without prejudicial rehabilitation testimony. A compromise was reached, permitting defense counsel to use the reward offer to prompted show not that it Shiplee forward, to come but that it prompted trial; her to testimony return, tailor her at in she would testify be able to that her fear that might defendant again— kill mentioning without the second murder —led her to come forward. The defense then Shiplee questioned recalled her about the reward. Shiplee gave
After her initial statement police, an officer contacted Michael arranged Mills and an interview. Mills met police 4, 1993, with on November but his statement was not admitted at trial because of his suicide on June 1994. Before death, however, his Mills did lead authorities to recover the weapon. murder approximately At 1:15 a.m. on November driving while investigators with County from the Gloucester home, Prosecutor’s Office to his stopped Mills and the officers Bridge. Creek, Spanning Woodbury White Bridge the White leads into National Park and is located between the Columbia Family Cafe and the bridge Texaco station. The approximately seven-tenths of a mile from the Columbia Cafe. As a result of their Mills, police conversation with searched for weapon the murder Woodbury Creek. following day members of the Camden County Underwater Rescue Team They assisted the search. shotgun creek, recovered a at the bottom of the later confirmed to weapon. be the murder
Shortly midnight 4, 1993, after on police November simulta- neously executed a search warrant and arrest warrant at defen- Woodbury dant’s home in Heights. given Defendant was Mi- warnings randa police formally at his home before read warnings prosecutor’s those at the office. subsequent- Defendant ly signed agreed a waiver form police question- to submit to ing. Investigator Angelo Alvarado of County the Gloucester Prosecutor’s Office and a Deptford Township detective from the Department began Police interrogating investiga- defendant. The *21 present employment. his Defendant defendant about
tors asked employer that his in construction and responded that he worked defendant with Alvarado confronted was James McCall. they had Defendant then incriminating information that received. counsel, speak and the interview ended. expressed a desire to with trial, testify permitted to that defendant’s invoca- At Alvarado was right the reason that the interview tion of his to counsel was terminated. County grand jury subsequently indicted defen-
The Gloucester dant, by his charging purposeful-or-knowing murder own him with 2C:11-3a(1) (2); conduct, felony in violation N.J.S.A. and/or murder, 2C:11-3a(3); first-degree robbery, in violation of N.J.S.A. 2C:15-1; weapon of a for an possession in violation of N.J.S.A. 2C:39-4a; posses- purpose, in violation of N.J.S.A. unlawful N.J.S.A. 2C:39-3b. shotgun, of a sawed-off violation of sion charges, trial Although conspiracy not on the court indicted charged as those crimes lesser-included offenses. See N.J.S.A. 2C:1-8(d)(2). trial, testimony Wrigley, presented
At of Kevin State alleged briefly Wrigley that he shared the Kevin Bock. a/k/a holding same cell with defendant another individual while awaiting Wrigley defendant was trial. After conceded that recognize had and that he defendant in cell been dark did court, immediately challenged the admission of defense counsel Wrigley’s testimony. hearing conducted Rule 104 court reliability supported indicia of admis- determined sufficient testimony. Wrigley subsequently identified defendant sion court, previous having his view the defense table been position partially The court observed that the of the obstructed. complete hampered was such that it view witness stand courtroom. defendant, Wrigley in the cell heard who had identified
While Feaster, Rich how he shot someone in the himself as describe range it felt like” kill point-blank head in order to “see what Wrigley also someone before he entered Marines. heard *22 couple defendant admit that he took “a hundred dollars” from the Regarding scene the crime. weapon, Wrigley the murder testified that something “[defendant] said he threw it in a lake or that, away, got like it Wrigley threw rid of it.” also maintained that the individual in the cell had a “Rich” tattoo on his arm. As occupant holding the third general cell left to return to the prison population, Wrigley request heard defendant that the man “Shalusky tell Mike something like that” that defendant was in prison. Additionally, the Wrigley testified that defendant de- guy scribed “a named Mike” who was also involved in the crime: says “[Defendant] was a [Mike] witness and his dad had him taken thought care of. He he committed something suicide or like that.” Wrigley’s testimony only was not the occasion on which the suicide; heard of Mills’s that fact also had in been mentioned guilt-phase opening, during State’s the redirect examination of Kaighn, during Daniel and defense counsel’s summation. presented McCall,
The State also testimony of James person whom interrogation defendant at his had identified as his employer. McCall testified that defendant worked for him on one day only, murder, which paid was after the and that he had been day. for that McCall further testified he did not owe any money. defendant physical directly
No Donaghy’s evidence linked defendant to murder.
B. Defendant’s Case testify Defendant did primary at trial. The defense strate- gy was credibility characterized a sustained attack on key Kaighn, State witnesses. On cross-examination of Daniel explored use, significant drug lengthy defense counsel his criminal prior statements, record and inconsistent as well as the favorable Kaighn exchange treatment in cooperation received for his with Kaighn having feigned also attempt State. admitted a suicide facility order to secure a transfer out of the in which he had been incarcerated. drugs use
Similarly, highlighted the defense Sadlowski’s alcohol, his that he elicited on cross-examination admission he night of the He “hammered” on the murder. testified made incriminating allegedly statement did not hear defendant’s Cafe; did not pool table at the Sadlowski also near Columbia against made at Shiplee’s recall accusation back apartment. The also stressed the consideration Sadlowski defense discrepancies testimony, received from the for his State separate given he had to authorities. three statements Shiplee having consumed three or four while admitted beers Cafe, may she have smoked the Columbia and conceded that *23 marijuana evening. that the Shiplee earlier that also admitted the have comment she overheard defendant make at bar could Although previously been “drunk intoxicated statement.” she she testified that a “blank look” came over defendant’s face when no re- accused him of the murder and that defendant uttered sponse, Shiplee providing authori- on cross-examination admitted statement, contradictory In ties with an earlier statement. that Shiplee After Appellate said defendant denied her accusation. the interlocutory appeal regarding pro- Shiplee’s Division decided the forward, posed testimony coming for about her motive the defense during than recalled her to the stand its case-in-chief. Rather focusing contacting the the for her the on reward as motive authorities, present her motive collect the defense stressed to only reward. As the could be after defen- reward obtained $5000 conviction, suggested money dant’s counsel that moti- defense testimony against tailor Shiplee present vated her secure conviction. that credibility Wrigley also defense attacked Kevin accuracy testimony. Wrig- his explored Defense counsel
ley’s history, charge including pending aggravated criminal his for stemming hit assault from an incident in he an individual which pipe. Regarding alleged over the head with lead defendant’s murder, Wrigley jail that talk comments about conceded most attempted “most of time.” also unreliable The defense Wrigley holding show that could not have shared the same cell defendant, any incriminating with and therefore did not overhear Firman, statements deputy made defendant. Shirleen County jail, jail warden of the Gloucester that testified records Wrigley holding indicated that had been from the removed cell on cross-examination, highlighted November 1995. On the State jail pertaining the absence of records to defendant. Also elicited on cross-examination holding were Firman’s admissions that the very busy jail cell area was often records were not always stipulated accurate. The State and the. defense January only between 1995 and December time defen- overnight County jail dant was housed at the Gloucester was from 9,1995. through the afternoon of November 8 November supplemented impeachment The defense its of State witnesses by producing alleged Washington an admission of Herrill that he According Wesley, had committed the crime. to Barrick he and Washington Family during had “cased” the Texaco the summer of preparation in possible for a return to rob the establishment. County jail, Wesley spoke Washington by the Salem While with telephone Washington allegedly Wesley on October 1993. told later, planned A days he to rob the Texaco station. few Wesley spoke again Washington. Wesley during testified that Washington robbery the conversation said he committed the shot the attendant the face.
Washington at trial and testified denied the facts about which Wesley had testified. The State theorized that because an un- Washington regarding known informant had incriminated an unre- burglary, Washington may incriminating lated have made the false Wesley Wesley in statements to an effort to determine whether informing was the individual who had on him. been During closing arguments, the lack defense counsel stressed case, credibility in direct evidence the and attacked the suicide, State’s witnesses. Defense counsel also mentioned Mills’s openly suggesting trigger- that Mills and not defendant was the man: against against than a better case Michael Mills have [S]tate they The made car? Mills. [defendant]. It more clear. Who borrowed the Michael couldn’t be Although [B]ridge? we not the conversa- [W]hite
Who on the are privy stopped shotgun Mills. from the water. Who? Michael tions that the occurred, pulled bag Michael moved the out of car? Mills. Who Shiplee’s feasibility questioned defendant’s commit- defense also the The by ting crime on time frame described some the based the witnesses, weapon some and also noted that for time murder unaccounted for. had been indicating premeditation on prosecutor focused the acts
The part Despite support in the on the of defendant. scant intent record, “getaway he driver” and described called Mills Family detail the events that occurred at Texaco and Donaghy’s culminated murder. The Verdict
C. During jury to charge, the court instructed the first deliber- reaching ate on own-conduct murder before the issue of accom- plice liability. Additionally, repeatedly the court reminded jury unanimity required charge to a was on each constitute verdict, unanimity required regard to the but that with specific question form of murder and the whether defendant by his committed murder own conduct. jury guilty March returned a verdict on all
On charged counts in the indictment. The also found defendant guilty conspiracy conspiracy murder to commit to commit robbery. armed found killed also had Thus, Donaghy by jury’s his triggered own conduct. verdict penalty phase to determine whether sentence of death would be imposed. Penalty
D. The Phase aggravating alleged The sole factor the State was that engaged murder defendant was in the commission occurred while See N.J.S.A. robbery. 2C:11-3c(4)(g). Originally, of a the State alleged aggravating prior as factor also an that defendant was *25 2C:11-3e(2)(e), murderer, on the basis that he also had N.J.S.A. Pine. been indicted for the murder of Ronald Because State intention, contemplated trying jointly, in the two cases the State’s conviction, the event of a double was to use each murder support a death sentence for the other murder. The trial court Furthermore, strategy. question became moot disallowed severed, pled guilty and defendant when the two indictments were being for Dona to the Pine murder after sentenced death murder, ghy For defendant received life murder. the second thirty-year along imprisonment parole disqualifier, with a with a twenty years first-degree consecutive sentence of for armed rob bery years parole ineligibility. of were with ten Those sentences consecutively imposed Donaghy run for the murder. to those summation,
During penalty-phase opening its the State “accept responsibility” should be made to stressed during call for his actions. The State did not witnesses Rather, phase. incorporated it reference the evidence penalty presented during guilt phase, and then rested its case. mitigating relied on ten factors:
Defendant had convicted of a crime and had never been incarcerat- 1. Defendant never been ed previously. crime. 2. Defendant was and not matured the time twenty-two fully resulting organic in an brain 3. Defendant suffered one or more head traumas judgment [extent] control to the condition that affected his impulse normal are not affected. people wrongfulness of his conduct or to conform 4. Defendant’s ability appreciate to the of the law was as a result mental his conduct impaired requirements defects and emotional disturbances and intoxication. disease and/or in one alcoholic which 5. Defendant was raised a household with parent, predis- undermining the behavior, him to substance abuse and delinquent posed controls in others. normally present an abusive 6. Defendant was raised a home with emotionally physically affecting effect, maturation and with the father, his substantially development, among predisposing him to and violent behavior to the others, delinquent extent normal adults are not so predisposed. living record while 'from the Florida, 7. Defendant had an excellent work away injury. a work-related turmoil of his which was family, interrupted only by during high adolescence and re- school, 8. Defendant was a successful athlete sponding coaching well to and discipline. *26 working coaching in in an environ- success under sports 9. Defendant’s that he could be his from the turmoil of demonstrated family ment away regimented environment such as in a prison. rehabilitated jurors, deem relevant them, one of may 10. other factor that the any Any of the offense. or to the circumstances defendant’s character or record testimony experts. Dr. of several presented the Defendant Portman, abnormally neurologist, excessive a described Steven brain. He activity in the left frontal lobe of defendant’s electrical impulsive and people that condition tend to be with testified Willard-Mack, a clinical memory problems. Dr. Jonathan have injuries to the left frontal also testified that neuropsychologist, impulses. diagnosed defen- ability to control He lobe affect one’s likely injury, as a suffering encephalopathy, or brain dant as from alleged injuries The head a series of concussions. result of truck, by pickup a by caused a fall from sustained defendant were injured his head hit a in which defendant was when an incident tree, repetitive impacts during incurred his football career. possessing as Dyer, psychologist, described defendant Dr. Frank intelligence. that the alcoholic and abusive He testified borderline environ- defendant was raised was a traumatic household which ment, therapy help expressed could defendant. but the view Latimer, that defendant’s psychiatrist, also testified Dr. Robert compromised by encephalopathy, ability impulses to control helped through psychotherapy and counsel- that he could be but ing. an mother that defendant’s father was
Defendant’s testified verbally abused her and defendant. As alcoholic who older, him were physical altercations between and his father grew Feldman, worker, Amy a social described the Feaster common. denial,” “in in which Mrs. Feaster and defendant home as one were abused. factor, mitigating jurors accepted the third that defendant
Two resulting judgment-impairing organic brain disorder suffered jurors accepted the factor that defen- traumas. Five from head abusive, emotionally physically and and three dant’s father was factor, jurors ninth that based on defendant’s work found the Mgh Experience he was record in Florida and Ms school atMetic unanimously prison. re- amenable to rehabilitation jected remaining mitigating factors. The also concluded aggravating outweighed beyond a unanimously that the sole factor factors, resulting in any mitigating factor or thus reasonable doubt subsequent In for a defendant’s death sentence. his motion new relief, trial, requested for the defendant advanced numerous bases all of wMch were demed the court.
II Sequential Murder and Accom- Presentation Own-Conduct
plice-Liability Allegedly Murder and Inconsistent Instruc- Nonunanimity Option
tions on Own-Conduct implicates address tMs claim first it the central We because appeal. raised on defendant’s issue
Perceiving support jury finding that a rational basis existed to crime, defendant, despite participating in the did not commit that conduct,” 2C:11-3c, “by the court the murder Ms own N.J.S.A. accomplice-liability charge jury. presenta- the provided an charge accomplice-liability tion of the own-conduct murder and the two, impor- charge, relationship and the between the is of critical by pumshable murder is death but tance because own-conduct 2C:11-3c; also accomplice-liability murder is not. N.J.S.A. see Gerald, 40, 100, (1988)(noting, A.2d 792 with State v. 113 N.J. hire, exception of for “a defendant whose conviction is sole murder liability subjected to theory of vicarious cannot be based on death-penalty proceedings”). of argues sequential presentation the court’s
Defendant murder, accomplice-liability and its ad- own-conduct murder liability question jury accomplice that it reach the moMtion murder, effectively only acqmtting after first on own-conduct In relegated non-death-eligible option to second-class status. words, rigid sequencing contends that the other defendant jury into reach- charge improperly and deliberations coerced the ing death-eligible verdict. repeated instruc-
Additionally, on the court’s defendant focuses issues, regard with to all while tion that the be unanimous unanimous on informing jury that it need not be the same time that those con- question. Defendant contends the “own-conduct” confused,” leading jury “hopelessly tradictory left the instructions they unanimous on the own- jurors to had to be believe convic- in order to return a valid murder conduct determination tion. Murder and Ac- Sequential
A. Presentation of Own-Conduct complice-Liability Murder purposeful- charged on the elements of The court first murder, during question or-knowing which it did not mention the by murder his own conduct. whether defendant committed the aggravated charging After on the lesser-included offenses of man- slaughter manslaughter, the court instructed on and reckless liability, charge accomplice tailoring its to fit the facts of the case: In this ease the contends that the defendant ... committed the offenses for State talking charged, I’m about murder, which he is murder, felony robbery, right against Donaghy Keith his own conduct. now, those by particular then doubt, If are convinced of that a reasonable need beyond you you alternative where a is, consider the type culp[a]bility responsibility, guilty an of the conduct of another be found offense because may legally for whom he is accountable. person If find that the actual crimes were committed This liability. you accomplice throughout conduct of who I refer to this another will portion my person, *28 [it] consider X, instructions as could be other then will any you simply person, guilty legally whether the defendant shall be found because he is accountable as an of X. You’ve heard Michael Mills and it could be about anyone. accomplice If a reasonable doubt that the defendant acted are convinced you beyond by committing crimes, his own conduct these then consider should you may guilty being legally consider whether he should be found of them because of consider these accountable as an of some other and you’ll only accomplice person, instructions on if first determine that he is not accomplice liability you directly his own conduct. by responsible repeated description sequential relationship The court this liability accomplice murder and on at least between own-conduct during three other occasions its instructions.
35
wrong
charges,
nothing inherently
sequential
with
There is
orderly
“usually provide a framework for
deliberations.”
which
369,
326,
(1997)(quoting
Cooper, 151
8(e)(1997) (“[I]n
ease,
in
support
where
is
the
capital
there
conviction,
jury
the
must
non-capital
for a
murder
be
evidence
carrying
every opportunity
charge
convict of the
the
given
340,
Tsanas,
v.
F.2d
penalty.”);
States
572
345
death
United
cf.
“[wjhere
(2d Cir.)(noting that
of the
of the
one
elements
offense
doubt,
guilty
plainly
in
charged remains
but
defendant is
offense,
jury
likely
its doubts in favor of
some
resolve
States,
205, 212-13,
eonviction.”)(quoting
412
Keeble v. United
U.S.
denied,
1993, 1997,
844,
(1973)),
L.
850
cert.
93 S.Ct.
36 Ed.2d
435
(1978).
995,
1647,
98 S.Ct.
In
considered a
we
defendant’s
charge
effectively
sequential
required
sheet that
and verdict
acquit
purposeful-or-knowing
on
to first
murder before reach-
question
ing
purposefully
knowingly
whether defendant
482,
bodily injury resulting in
141
caused serious
death.
N.J.
Mejia,
At
We constituted required “crucial defects” in court’s instructions 483-84, reversal defendant’s death sentence. Id. at Noting serious-bodily-injury A.2d 308. an murder is alterna- tive form of homicide rather than a offense lesser-included murder, 308, to kill” “intent id. at A.2d we observed that serious-bodily-injury the court’s treatment of murder as a lesser- included offense “reduced the likelihood would only bodily consider whether defendant intended cause serious injury.” Id. at 662A.2d 308. 209-12, Coyle, supra,
In
In
most
decision
our
recent
cases,
felony
in
capital
unique nature of
murder
we relied on the
presentation
capital
upholding
sequential
a trial court’s
of
murder
369-70,
felony
Cooper, supra,
commission
jury to
reliance affirms the existence of “a rational basis for the
death-ineligible option
finding
guilty of
choose the
of
175,
murder,”
532,
felony
accordingly
and that
id. at
601 A.2d
in
felony
a lesser-included offense
murder should be treated as
530-31,
jury.
determining
to the
Id. at
601
what crimes
submit
365,
175;
Analyt-
Cooper, supra, 151
at
In
court’s
murder,
felony
felony
Cooper distinguished
mur
tal murder and
manslaughter
implicated
offense
passion/provocation
from the
der
manslaughter is
Coyle.
passion/provocation
evidence of
When
a conviction for murder the State
produced,
order to obtain
killing
beyond
purposeful
prove
a reasonable doubt that the
must
provocation.
product
passion
based on reasonable
was not the
(1980).
Powell,
305, 314-16,
In that
Thus,
requirement
the own-conduct
is not an element of
murder;
purposeful-or-knowing
solely
“trigger”
it acts
as a
with
regard
death-penalty phase
to whether a
of a trial will occur.
Brown,
510,
19;
Moore,
supra,
at
651 A.2d
v.
207
138 N.J.
State
(Law Div.1985);
Gerald,
561, 576,
see also
N.J.Super.
504A.2d 804
(“The
93,
legislative history of the
supra,
at
We
*32
capital
jury to
defendant of
basis exists for a
convict
rational
homicide, a trial court
non-death-eligible alternative form of
jury to
in a manner that allows the
charge that offense
should
simultaneously
death-eligible purposeful-or-know
it
with
consider
necessary
requirement affords us the
assurance
ing murder. That
options
jury
properly considered all available
capital
that a
has
verdict,
safeguard
death-eligible
important
an
rendering a
before
penalty
the death
light
“qualitative difference
in
of the
between
511,
Brown,
40
Here,
jury on at least four
explicitly
court
told the
accomplice
not have to consider
separate occasions that
it did
liability
acquitted
murder. Present
unless it first
of own-conduct
manner,
jury’s
improperly focused the
ed in that
the instructions
theory
potential
of the case and “had the
attention on
State’s
222,
consideration,”
jury
Coyle, supra,
N.J. at
[State]:
liability,
have
accomplice
guilty
saying
of murder as an
[as
be
of murder
he can either
principal] .or
a choice.
itSo,
not on the verdict sheet as
may
it’s not been—it’s
accomplice, yet
confusing to them.
be
object
I
honor.
[Defense]:
that, your
is
[State]:
liability
applicable.
Where that is
accomplice
applicable,
highlight
suggests, I
it’s the
feel,
To
it now it
I think
it.
[Defense]:
you explained
to them. The verdict sheet
I think it’s been
verdict.
properly explained
proper
object.
I
reflects it and strenuously
properly
I think
right.
I think it’s been
clearly
The Court:
I think
explained
you’re
in the own conduct
that’s
and clear
portion.
implicit
likely
of a trial
objection
most
indicative
counsel’s
Defense
securing
avoiding
compromise verdict
strategy
aimed
Nevertheless,
implica-
the clear
complete acquittal for defendant.
the own-conduct
counsel considered
remains
that defense
tion
liability.
accomplice
adequately
issue of
question
encompass
charge did not
sequential
In view of our conclusion
defendant,
contention at
not address the State’s
prejudice
we need
in the evidence
a rational basis
argument
that there was not
oral
murder.
accomplice-liability
on
for the court to instruct
Indeed,
threshold for a defen-
poses
test
a low
the rational-basis
(citing
We charge purposeful-or-knowing murder is not innocence on the principal acted as or intended to resolve whether the defendant purposeful-or- accomplice. Only subsequent guilty to a verdict of jury specifically form of knowing murder consider what will
43 supports the mur- accomplice-liability or own-conduct — murder — jury’s supports that view case law der conviction. Our 486-87, 662 See, supra, 141 at e.g., Mejia, N.J. deliberations. to cause defendant intended (suggesting that whether A .2d 308 resulting in considered bodily injury death be death or serious murder); unspecified form of finding guilt on initial after (‘We accept the Brown, do not 651A.2d supra, 138 N.J. knowing purposeful premise that to convict defendant State’s murder, unanimously agree required liability beyond a reasonable specific theory of proved a State had 628, 633-34, Parker, A.2d 228 doubt.”); v. N.J. State *35 guilt (1991) theory jury unanimity on of defendant’s (recognizing denied, L. 117 112 S.Ct. required), cert. 503 U.S. (1992). Ed. 2d 625 Nonunanimity Option Knowledge Jury of
B. regarding the instructions that inconsistent Defendant asserts impres- unanimity jury confused and under the for left the need determination on the own-conduct that it had to be unanimous sion sequential In addition to the murder conviction. to return a valid murder, consistently em- the court accomplice-liability charge on unanimity: phasized the need for unanimous on of any rendered must be instructed, I verdicts any As previously manslaughter, aggravated man- charges, reckless murder, it be these whether slaughter, be 12 to 0 to be a verdict. Your verdicts must [or] liability. accomplice jurors along. go give All going on that as we I’m to further instructions you charges guilty agree guilty that you or not one any that he’s either must considering. are on at to be unanimous of the need The court reminded Nonetheless, the during charge. its three other occasions least and the specific form of murder made clear that the court also findings” need not “special were own-conduct determination unanimous: be killing conduct his own doubt as to whether by If have a reasonable you doubt as to a reasonable to reach a unanimous decision beyond or if are unable you distinguished as conduct, the murder his own by the defendant committed
whether on being is a final verdict it as for an accomplice, permissible from responsible sentence again, of a mandatory result in the issue and would that, imposition this of at but at least 30 without life, for murder least years prison, up [year's] parole. reminding jury that it had After to be unanimous with verdicts, regard again acceptability to its the court stressed the own-conduct of its nonunanimous determination near end instructions: go As to that I’ve discussed with and which I’ll the special questions already you again guilty guilty, over with on the verdict not as to or not but the sheet, you regarding if murder, form of find the defendant special questions, specific you guilty regarding his own conduct if have found murder, question, you guilty
him of murder and if it becomes for to reach that appropriate you question, do I unanimous, those not have be as already you. explained pertinent part, The verdict sheet reiterated that direction. In it read:
IF DEFENDANT YOU HAVE FOUND GUILTY OF MURDER AND (1) THEN “a” CHECKED ABOVE CHECK OR “b” BELOW. CONDUCT-------------/_/ BY a. HIS OWN (Case will for a decision as to whether the proceed penalty phase by you years.) is death or for at least 30 punishment imprisonment b. BY NOT HIS OWN CONDUCT OR UNABLE TO AGREE UNANIMOUSLY “a”---------------/_/ ON (Defendant will receive a sentence of at least 30 without mandatory years prison parole.) permissibility The court also made the of a nonunanimous own- conduct determination it clear when reviewed the verdict sheet jury: with the agree agree [own conduct] all on or that unable to [M]aybe you you’re unanimously *36 whether it was his own conduct or not a reasonable doubt and that’s by beyond finding finding, regardless if that’s and if make that okay of whether it’s your you asking 11 to 1 or 6 to 6 one or the other, we’re not what the vote would but way be, finding if that’s then would check either concluded that it your you that, you agree
was not his own conduct or that unable to by you’re simply unanimously whether it’s been a reasonable doubt that it was his own conduct beyond proven finding, guilty get if and that’s then he’s still of murder and he would still your minimum of at sentence least 30 without but the mandatory prison years parole, go case would not into [a] a second for determination of death phase possible penalty. sheet, reviewing aspect After of the verdict the court part. anybody, added: “That’s the murder Is there if it’s unclear you’re deliberating something tell me. If after there’s unclear
45 bring you I’ll out anything let me know and else with this it, up.” try to clear it try reexplain guide jury, and without charge map road
A
“is a
wrong turn in its
jury can take a
charge a
appropriate
an
Brown,
522,
supra, 138 N.J. at
46 Brown, informing an trial court omitted instruction
In
nonunanimity
determination was
jury that
on the own-conduct
514-16,
Id. at
verdict.
constitute a valid
permissible
would
jury
if it was
Additionally,
the court told
However,
jury
un
unlike
in which the
remained
ability
informed about its
to be nonunanimous on the own-conduct
19,
issue, id. 651 A.2d
the court here on at least
three
option
separate occasions stressed to the
it had the
contingency
That
return a non-unanimous own-conduct verdict.
Moreover,
clearly
forth
on the verdict sheet.
also was set
court told the
that the return of a nonunanimous own-conduct
carrying
murder
conviction
verdict would result
a valid
thirty years
jail.
than
sentence of at
least
Rather
isolate
instructions,
obligated
aspects of the
are
to view the
certain
we
Delibero,
90, 106,
v.
149 N.J.
as whole. State
charge
692 A.2d
Ramseur,
123, 280,
(1997);
State v.
106 N.J.
III
Publicity
Issues
and Pretrial
Dire,
County Jury, Midtrial Voir
Impanelment
Salem
A.
Jury
Polling of the
and Postverdict
trial court’s
three-pronged attack on the
advances a
Defendant
integri-
publicity affected the
prejudicial
risk that
responses to the
contends that
the court
jury’s verdicts. Defendant
ty of the
County
by
jury from Salem
empaneling a
abused its discretion
County;
it committed reversible error
instead of Cumberland
regarding
jury’s
dire
by failing
individualized voir
to conduct
it erred
not individual-
publicity; and that
exposure to midtrial
about their knowl-
jurors
the death sentence
ly polling the
after
charged.
which defendant was
edge of the other murder with
Harris,
v.
156 N.J.
decision
State
Unlike our recent
(1998),
not involve saturated
458
this case does
716 A.2d
prejudice to a defen
coverage creating
presumption
media
Koedatich,
225, 273,
939
112
548 A.2d
v.
N.J.
dant. See State
1017, 109
813, 102
denied,
(1988)(Koedatich I),
S.Ct.
488 U.S.
cert.
13, 33,
(1989);
N.J.
524
Biegenwald,
v.
State
L. Ed.2d
II).
preju
presumption
(1987)(Biegenwald
Where
A.2d 130
case,
response is to
appropriate
capital
in a
dice has arisen
Harris,
county.
supra, 156 N.J.
another
the trial to
transfer
134,
Rather, discrete claim here raises a more adopted prevent the court sufficiency of the measures of a impanelment Although defendant concedes prejudice. prejudice against defen- County jury the level of reduced Salem prejudice, an dant, duty was to minimize argues he that the court’s effectuated if the court selected obligation that would have been noted, County. As defendant was to be jurors from Cumberland 31,1993 stabbing death of Ronald separately for the October tried Pine, coverage, gas attendant. Much of the media another station nature, inflammatory in refer- although and not contained factual pri- reporting That was contained ences to the second murder. (Philadelphia and southern marily Philadelphia Inquirer in The Camden, (Burlington, and Glou- Jersey), The Courier Post New (Gloucester Counties), County cester The Gloucester Times Coun- *39 (Salem County). Recognizing Today’s ty), and Sunbeam jurors knowledge of his prejudice to defendant if with obvious jury, trial implication in second murder sat on the court County believing began jury in that voir dire selection Gloucester knowledge those with of the second murder. would eliminate jury County selection soon Problems associated with Gloucester significantly, it difficult to determine apparent. became Most was jurors potential knew of the second murder without whether directly. change of asking question Defendant moved for a non-inflammatory Citing relatively limited and cover- venue. murders, coverage concentrated age and because the selection, years prior the court denied the motion some two However, prejudice. without the court’s faith the Gloucester jurors County jury pool A number of who was soon undermined. during post-dismissal were excused for other reasons revealed questioning knowledge their of the second murder. The indirect juror’s attempted potential manner in which voir dire to elicit a knowledge obviously of the second murder was ineffective. After County conducting dire in over several extensive voir Gloucester weeks, the court halted selection: jurors 200 that have been It’s conclusion based between my upon
interviewed that I cannot as the individual who is vested with this satisfy myself reviewing court would to a broad whom discretionary upon rely power determining significant significant to in or not extent deference whether pay jury. the voir dire was able to assure the selection of an impartial I that I sufficient confidence in the results of this voir dire to be cannot have say probing it’s efforts of counsel on been, so assured. As as with the considerable sides, both as well as this I Court, do not have the confidence I by level that simply feel I should have to be assured that this will a fair and process yield impartial jury, consisting of no one who is to have heard about the other murder and likely this defendant’s in it. implication jurors, jurors, There have been a number of who were close to prospective very being afterthought acknowledged who almost or as an qualified, offhandedly something vague knew about the other murder. Sometimes'it was they informa- tion. although The fact that in article without every the number of articles exception, great, has not been that it but the fact that in really hasn’t, article these every through cases have been linked and the results of the come with me publicity jurors, knowledge among these that there is a prospective the citizens of pervasive charged gas this that the same in these 2 station county person murders, they’re just from the linked, he was arrested been because I day linked, cannot ask they’ve enough detailed nor can to ferret out that information questions, counsel, with going prejudice reasonable assurance, because too far with pointed questions would be created and because that it is conclusion that the motion for a my change granted, prejudice of venue should be in order to avoid the likelihood of resulting the defendant from pretrial publicity. concluding change necessary, After that a of venue was court stated a further decision regarding would be made simply whether to move the trial impanel foreign jury to sit County. expressed preference Gloucester Defense counsel no for option other, explaining one over the purity issue is “[t]he jurors get, we not where the court is held.” The court and, accepted taking that concession into account the convenience *40 witnesses, family attorneys, members and concluded that a foreign jury impaneled would be to hear the case in Gloucester County. proper
Defendant contended that
choice would be a
County,
from
penetration
Cumberland
because media
there was
court,
surrounding
however,
less intensive than in
counties. The
relying
Harris,
Appellate
on the
in
Division’s decision
State v.
282
409,
(1995),
N.J.Super.
50 Additionally, papers. in noted that
articles other the court juror panel satisfy County possessed a sufficient to reserve Salem large jury pool, court’s need for a whereas Cumberland an County required months to assemble ade- would have several Moreover, County quate pool. demographic makeup of Salem County closely approximated of more than Cum- Gloucester County. berland
Finally,
possibility
of
of
the court determined that because
murder,
County
trial
second
for the Ronald Pine
Cumberland
in
court
should be reserved for
case. The
reasoned
view
County,
County
of its closer link to Gloucester
Salem
would
experience publicity no matter where the first trial was held.
Thus,
problematic
location
Salem would be
for a second trial.
Conversely,
County
holding the first trial in Gloucester
with a
unlikely
significant
County jury would
in
Salem
be
result
publicity
County,
in
from
which more detached
Cumberland
newsworthy
County, thereby preserving
events
Gloucester
possible
trial.
Cumberland for the
second
guaranteed
right
a criminal defendant is
Because
Dowd,
717, 722,
impartial jury, Irvin
to an
v.
366 U.S.
81 S.Ct.
1642,
751,
1639,
(1961), a trial
6 L. Ed .2d
755
court must observe
precautions
pretrial
significant
adverse
minimize
midtrial
publicity
capable
affecting juror perception
that is
of
of the case.
(Williams
Williams,
63,
(1983)
39,
v.
93 N.J.
51
(noting
“searching
130
voir dire examinations” are means of
protecting defendant’s
rights).
place great
constitutional
We
reli-
ance on a trial court’s voir dire examinations in determining a
juror’s
I,
274,
actual
supra,
bias. Koedatich
In criminal pretrial which the level of publicity justify does not presuming prejudice a trial court in defendant, ordinarily we will affirm a trial court’s determina regarding tions appropriate prophylactic they measures unless Marshall, constitute an abuse of discretion. See State v. 123 N.J. 1, 76, (1991), denied, 929, 113 1306, A.2d 85 cert. 507 U.S. S.Ct. (1993). Here, 122 L. Harris, Ed.2d 694 the trial court relied on supra, 539, N.J.Super. Appellate 660 A.2d an Division adopted decision that the American Bar Association’s recom mended test to determine foreign jury the source of a or the appropriate comprised venue. That test is of five factors:
(1) The nature and extent of if in the pretrial publicity, any, proposed venue; (2) changing The relative burdens on the courts in to the respective proposed venue; (3) The relative on the witnesses, and other interested hardships imposed parties, regard with to the persons venue; proposed (4) religious demographic The racial, ethnic, and other relevant characteristics of venue, insofar as affect the of proposed likelihood a fair trial they may by jury; an impartial (5) justice. other factor which be Any may interests required by [Ibid, (quoting Criminal Justice Standards: Trial ABA Criminal by Jury (3d ed.1993)).] Justice Section Standard 15-1.4 impanelment County
We are confident that
of a Salem
appropriate
First,
was an
exercise of the court’s discretion.
sustained, inflammatory
as this was not a case of
publicity, see
Harris,
supra,
Moreover,
by
searching
voir
both the
dire conducted
County
jury
us
court and counsel
Salem
reassures
considering
impartial.
was fair and
In addition
defendant’s case
juror
thirteen-page questionnaire,
potential
each
filling
to
out a
familiarity
or
who revealed his or her
with either the defendant
any
automatically
case
court took
facts of the
was
excused. The
though
precaution
not
automat
extra
even
we have
mandated
jurors
may have
impartiality
ic excusal for
whose
is intact but who
publicity
aspects
pending prose
of a
exposed
been
to
about some
I,
sum,
In
supra,
cution. Marshall
During the court admonished the any exposure publicity to to about The avoid the case. following representative comment of the court’s reminders jury: given along. Do Continue follow the instructions that I’ve all you please, anything discuss this case. Do not read it. There’s a bit of about been quite coverage Be if want of this case. sure to read the have someone you papers you screen for of time out or cut articles that those ahead out papers you pull any deal with this case or any way directly indirectly. Additionally, during phase penalty on one occasion the court place stated on the record that it ordered sheriff’s officers to newspaper vending in front of a box themselves that contained newspaper with a headline about the case. during
On at three trial counsel least instances defense requested jurors voir dire determine individualized whether exposed prejudicial publicity. were court in each The declined instance, choosing instead to conduct a collective voir dire of the jurors jury. they None of volunteered had heard or read anything about the ease. deliberations,
During penalty-phase counsel defense re- quested that the court conduct individualized voir dire after the verdict, juror directly they return of a and to ask each whether murder, any had received information the second about either during the trial. The denied this request, before court charac- terizing “speculative possibility.” it as and not realistic discharged having inquired, court without either individu- *43 ally collectively, knowledge or about their of the second murder. failing
Defendant
that the
erred in
to
contends
court
conduct
trial,
individualized voir dire
during
by rejecting
and
the
defen-
individually
request
poll
dant’s
to
the
after
penalty-phase
its
any possible knowledge
verdict to
of
uncover
the Pine murder.
In
case,
penalty
recently
the context of
death
another
we
stated the
principles
guide
resolving
prejudice
that
us in
of
these claims
alleged prejudicial publicity:
based on
significance
mandating
Of
here is that
“that the
particular
impartiality
aspect
jury’s
on
in
verdict be based
evidence received
not from outside
court,
open
“[t]he
sources.” As
Justice
our
is
the
expressed by
Holmes,
theory
system
argument
conclusions to
in a
be reached
case -willbe induced
evidence and
only by
talk
court,
influence,
and not
outside
whether of
or
open
by any
private
public
jurors
...
has
trial
The Court
courts to
both
print.”
consistently required
protect
illegitimate
and their
from
influences that
to taint
deliberations
threaten
the
[Tjrial judges
impinging
verdict.
must “seek out and
outside factors
expose
upon
jury’s
integrity.”
the
freedom of action and its
and essential
impartiality
(quoting
N.J. at
[Harris,
142,
156
In of this find no error court’s the context we this collective voir dire jury during the trial. note that We Moreover, publicity. engender a trial did not extensive was have, may [prejudicial publicity] possibility that the “realistic id. at jurors,” one more of 548 A.2d reached pretrial voir dire and continu minimized the court’s extensive jurors throughout admonishing the to the trial ous instructions I, Bey supra, any publicity regarding the case. Unlike avoid 79-80, this a case N.J. 548 A.2d was not in which the court they jurors exposed told come forward if ever simply were conduct collective voir dire on several publicity; court did during the course of the trial. We find court’s occasions discharge obligations regard of its this to be cautious conscientious, perceive any do abuse of discretion.
Similarly,
poll
we
no error in the court’s refusal to
find
jurors individually
penalty-phase
after the
verdict
determine
regarding
they
exposed
publicity
had been
the other
whether
*44
previously rejected
murder.
have
similar contentions.
See
We
I)
Loftin,
295, 382,
v.
146 N.J.
State
(1996)(Loftin
In defendant has offered precautionary question adequacy of the trial court’s measures
55 integrity or to undermine our in the confidence defendant’s or in their verdict. Disqualification
B. Vasile Susan fully properly We are satisfied that Susan Vasile was excluded serving voir jury. long from on searching defendant’s After a examination, dire the court concluded that “extreme reluc- Vasile’s acknowledge tance to she’d vote be able to for the death penalty substantially impair ability ... would her to function.” court, thoroughly by prosecutor,
Vasile was examined points counsel. although defense Defendant out that Vasile expressed regarding penalty, say cautious views the death she did However, be she would able to follow the law instructed. as repeatedly equivocated impose Vasile on whether she could vote to responses penalty, frequently framing the death her indicate that she “would like to think” she for the death penalty could vote depend but that it would on the facts of the case. When confront- pattern justifying ed fact imposition penalty with a of the death law, Jersey say under still New Vasile could not that she could Indeed, impose flatly a sentence death. Vasile said that if she sentence, committing voted death “I for a would feel like I’m murder.” Ramseur, 256, supra, 188, N.J.
In 106 524 A.2d we adopted excluding jurors test for for cause. Adams/Witt Witt, 844, Wainwright v. 88 L. U.S. S.Ct. Ed.2d 105 841. Texas, (1985); Adams v. 448 U.S. 65 L. Ed.2d S.Ct. (1980). whether, requires finding That test in the court’s discretion, prospective juror’s beliefs or attitudes would substan tially interfere with his or her deliberative duties. prospective juror repeatedly equivocated concerning
This ability impose penalty. her the death also She volunteered belief, counsel, prompting without from the court or she impose would like a if feel “murderer” she voted the death *45 an find of Vasile to be penalty. therefore the court’s dismissal We appropriate exercise of its discretion.
IV Issues Guilt-Phase Prosecutorial Guilt-Phase Summation A. Misconduct exclusively inculpatory on the case was based almost The State’s The defendant after the murder. State statements made sought to a presented that defendant and Mills borrow evidence in Renee Burk- car men left the Columbia Cafe and both car, in the seat. The also with Michael Mills driver’s State hardt’s suggesting evidence that the two men had provided circumstantial they the bar gun possession, a and returned to their However, they present- left. the State roughly one hour after had Donaghy murdered ed other than the fact that no evidence robbed, mur- along descriptions defendant’s later with der, during actually time frame. to what occurred show
Nevertheless, during prosecutor State’s summation missing pieces: sought provide some of 8:00 out. Mills is the [defendant] what Around Mills So pull happens? along man’s act of act of that route this first intent first kill, driver. Somewhere shotgun intent to kill occurs. takes the He preplanned, premeditated, purpose, slug. it loads with the immediately objected, asking support in for Defense counsel The it was justifying record the comment. court stated that drawn, permissible to be and ordered defense counsel to inference sit down. prosecutor continued: slug during putting act ride, doesn’t do it this into he but Well, maybe slug. gun, intent use this use it It’s not the intent,
this is an an with weapon slug, game. small is a three or whatever would use for This is this shot, you bird act ounce of lead. That’s his first of intent. quarter piece gas killing are him on [T]his man and Mills headed towards station with intent [Wr]igley it And what As he wanted to feel what was like kill. it, Keith. puts *46 find from the and you [crime-scene] the video is that’s his pictures what intent was in when he went that first to kill. station, Ogden What do do? drive the down front. Here is Koad. they They drive They in front of the And the station. here are windows. Keith is seated here. They doing job. can see that he’s seated there his continue And alone, They down. they go down the road the and— between Texaco Again, objected, asking support defense counsel for the in record. prosecutor The court to speculation. admonished the ask for prosecutor The continued: and [p]ulled “[Mills defendant] down Georgetown park. going going Road and Mills is to —he’s to be getaway the driver. What do? [defendant] does It’s loaded —not objected now—.” Counsel for the third time. The court charac- permissible terized the statement as a to the inference ask to bar, on in draw based facts the record. At side the court recited the in supporting facts contained the record such an inference: together. [defendant]
The Court: Fact Mills and leave bar Fact one, the two, they got driving take a car to which Mills the and was seen as the driver it when keys girl it left the bar. Fact to bar three, returned the and Mills hands the they [defendant] back the four, Fact admits to several keys. while people they guy. he were out killed this logical I think it is a and reasonable inference that can be doesn’t drawn, have logical but drawn, be is a and and permissible reasonable inference that he driver [defendant] was the was the killer. getaway [Defense]: How about he said would he be the car driver? [Prosecutor]: I never that. said I
The Court: don’t think he did, either. Defense counsel then declined the court’s offer to recite the jury. facts prosecutor for benefit The resumed his summation: Sergeant Hannigan The second act of intent his of this kill premeditation is, trigger long shotgun go can all on this says it doesn’t off. All you pull day long. shotgun What do have to do in order for the You day fire? have to you cock the hammer back. That act intent to to kill someone, is use this armed with gun. slug gets gas ball this And is done before he into the pumpkin gun. hecause he not have time once in the cock station, does he’s station to this That is on his done while he is into station. way go? goes along And how does he He this across, from he sneaks way, bays, looking is the Keith, there door. who is out the doesn’t see him windows, coming
because he’s from the blind side. And what he do? does With hammer from the inside. inside, the door. it Remember, he shoulders into cocked, opens like this. He shoulders in the door shooting, prosecutor and stated: then described gone head car with And take[s] and he’s and back Mills. they It seconds his found Mrs. Smolenski and the others. Park. Keith, body towards National gun in Park ditch the On the back National they And this route? way why driving____ at his [defendant] off, maybe Mills drops the creek. Mills house____ summation, responded defense counsel never Given the order of *47 by prosecutor. did made the Nor defense to the statements fact, a In request a instruction or mistrial. counsel curative upon completion of a curious concession defense counsel offered closing: the State’s closing, objections during Mr. none of which I believe I had series of Warburton’s anything it---- I need to [sic] error, amounted to reversal close to
would have obligation the what I think is as counsel. record, my make, merely complete cocking Judge, gun fact I in car is not based on think the pure speculation, any I can think of. “brought that summation forth Defendant asserts the State’s by informing jury that ghost Michael Mills” facts only by to the could have known Mills. Mills’s statement been in view of his suicide. Defendant contends police was inadmissible is prosecutor’s improper that comments seriousness compounded the comments to two critical issues because went own trial: whether defendant committed the murder his conduct, is, shooter, defendant not Mills that whether was shooter, and, shooting assuming was the whether the or intentional. was accidental up case prosecutor
A
is “entitled to sum
the State’s
162,
N.J.Super.
forcefully.”
Marquez,
v.
graphically and
State
277
Johnson,
171,
(App.Div.1994)(quoting
649
114
v.
31 N.J.
A.2d
State
denied,
489, 510-11,
(I960)),
99,
59 commenting upon mation “is limited to the evidence and the Johnson, reasonable inferences to be drawn therefrom.” State v. Bucanis, 263, 296, N.J. 120 .2d supra, (1990)(quoting 576 A 834 26 States, 56, 739); Berger N.J. at see also v. 138 A.2d United 295 78, 88, 629, 633, U.S. S.Ct. 79 L. Ed. 55 (1935)(noting 1321 although blows, prosecutor “may that strike hard he is at not ones”); ABA Standards liberty to strike foul Criminal Justice for 3-5.8(a)(2d 1980)(“It § ed. unprofessional is conduct for prosecutor intentionally to ... mislead the as to the infer- draw”). Indeed, may ences it prosecutor’s primary obligation is v. justice not to win convictions but to see that State done. is 104, 293 A.2d Farrell, (1972). 61 N.J. trial,
Particularly
a capital
delicate context of
prosecutor’s
duty
conduct
falls
of a
special
short
to seek
II,
justice
Biegenwald
supra,
scrupulously
will be
reviewed.
N.J.
A prosecutor
guilty
A.2d 130.
if
misconduct
implies
possesses knowledge beyond
he
to the
he
presented,
contained in the
or if
evidence
he reveals that knowl
Rose,
v.
454, 519,
State
112 N.J.
edge
jury.
60 murder, supported that Al- testimony no assertion. the when objectionable that the though led to the inference that assertion State, self-serving testify to no for the we had reason witness hoped had to the whether the witness secure that issue observed testimony placed in exchange for his was treatment favorable to jury, the and “contested to an extent sufficient dispute before 243, Id. at impact prosecutor’s infraction.” minimize the I, 157, (quoting supra, 123 at 586 1289 Marshall N.J. 607 A.2d 85). Thus, no A. 2d we found reversible error. Ibid. Rose, that effect of supra,
In
we concluded
the cumulative
required
of a death
prosecutorial improprieties
reversal
numerous
523,
egregious
A.2d
The most
112
at
548
1058.
sentence.
N.J.
jury
prosecutor’s
improprieties
intimation to the
that
included
for
its
responsibility
it had
defendant’s death sentence because
no
weigh
Id.
duty
“[t]he
evidence and
law then takes over.”
was to
addition,
510,
prosecutor
A.2d
In
warned the
at
548
1058.
necessary
prevent
a death
that
sentence
1058,
suggested
murdering
id.
548
again,
from
at
A.2d
than death would
the law. Id. at
that
sentence other
violate
Moreover,
prosecutor
Clearly, some of the summation comments are less trou bling prosecutor’s than description others. The of the route taken by the Texaco, two men from the Family Columbia Cafe to the although improper because it was not based on evidence adduced trial, capacity prejudice did not have the Simply defendant. put, what route defendant and Mills followed to the crime scene bearing had no direct on the guilt. determination of defendant’s Moreover, prosecutor’s the observation that Mills dropped drove the ear and defendant off after the murder are logical may inferences that be drawn testimony present based on jury. ed to the keys Mills obtained car the from Burk Renee hardt, Cafe, drove the car gave from the keys Columbia the (whereas upon returning back to Burkhardt to the bar back). yet had Although prosecutor’s come statement that dropped Mills beyond record, defendant off at home is comment, description much like the of the travel route taken men, specific bearing two had no guilt on defendant’s implication innocence aside from the subtle that if Mills was the driver defendant must have been the shooter. Where defendant dropped off after the murder import was of minimal in the Furthermore, jury’s prosecutor’s deliberations. comment re garding shotgun being discarded in the creek was a fair and logical inference to be drawn based on the record. In addition to testimony concerning gun creek, being found Wrigley testified that gun body defendant said he threw the in of water. summation, aspects however,
Other present ques- closer qualitative tions. The distinguishing difference those comments from the others key discussed above lies their relation to issues ease, in whether defendant and not Mills was the shooter and *50 shooting or the result of a botched
whether the was intentional robbery. that presented to the established neither
Evidence during ride the gun loaded the car nor cocked defendant the Texaco, Family although weapon en route the hammer However, in prosecutor as fact. view the couched both assertions defendant, in inculpatory numerous statements made the like, it cluding expressed to kill to see what it felt his desire obviously weapon that loaded at can be inferred the Nevertheless, shooting. prior prosecutor’s point some the the weapon during loaded the car ride statement that defendant the improper. highly had in the and was note that no basis record We objection upon prosecutor that defense counsel’s the did concede Secondly, “maybe during do it the doesn’t ride.” [defendant] support prosecutor’s there was no evidence the record to weapon back assertion that defendant cocked hammer during car ride. state Defendant contends extra-record intentional, impermissibly suggested ment murder was may product robbery. have Howev when it been the of a botched er, question crucial is not when hammer cocked but was shooting killing That was intentional or not. this whether uncontroverted, essentially in view intentional was of the evidence wound, suggesting Donaghy suffered “contact” that he had been when shot as from the downward seated inferable bullet’s only shooting trajectory, Donaghy and that defendant robbed after Wrigley him —not to mention that he defendant’s statement what like to kill wanted to feel it was someone. prosecutor’s also that the We conclude characterization “getaway Mills murder as the driver” his observation that the gone is] seconds and back in the car with “take[s] [defendant Mills,” separates although approaching the “that forceful fíne line Rose, supra, 112 N.J. closing argument,” from impermissible 548 A.2d fair to be from the are inferences drawn testimony that the left the record. did receive two men gave driving, bar with Mills and that Mills returned bar keys. importantly, Renee Burkhardt her car More we note the testimony pursued that indicated defendant numerous other ave- “pick up money nues to from boss” at [his] the Columbia Cafe. Shiplee Defendant asked if Sadlowski could use her ear to drive defendant, him, Shiplee then asked if she would drive and then inquired whether he could borrow her car to drive himself. Addi- tionally, he asked if get Zuzuloek she could her car so he could *51 money. A logical collect his fair and inference to be drawn from foregoing him, was that defendant cared little about who drove simply or if he supporting drove himself —thus the conclusion that whoever drove defendant play relatively insignif- was destined to icant in in comparison role the crime to that of defendant.
However, prosecutor’s ap assertions that defendant proached the victim from “the blind side” and that he “shoul in entirely dered] the door inappropriate. like this” were The generalized State’s submission of the need for the “element of surprise” supporting as simply inadequate. this comment is Equally unavailing argument is the George State’s that because (the side) garage Family town Road runs on the “blind side” of the Texaco, approached an inference that defendant in this manner supportable. argument ignores That the fact that no evidence adduced at trial gas indicated what route the men had taken to the place. station in the first
Nevertheless, were, inappropriate they as as we not are persuaded in the context prosecutor’s of the entire trial the capacity deprive comments had the defendant of a fair trial. The direction from approached way which defendant and the which he entered the door did not establish whether this was an above, intentional murder. As noted that fact was demonstrated forcefully by presented Concededly, the evidence at trial. prosecutor’s assertion that it was defendant who entered the office Donaghy directly and shot went to the crucial own-conduct deter However, mination. length the evidence detailed at above over defendant, whelmingly Mills, indicated that and not was the fully shooter. We are weight satisfied that it was the of the evidence, by defen- damning statements uttered particularly himself, than capital to this murder conviction rather dant that led during prosecutor’s improper summation. comments recognize prosecutor’s is best
We also that the summation Ramseur, trial as a reviewed the context of the whole. within particular supra, relevance is 106 N.J. at A.2d 188. Of summation, argument pursued defense which the line counsel portrayed principal as the offender: Mills against against [S]tate case Mills have The made a better Michael than they more Michael Mills. [defendant]. It couldn’t be clear. Who borrowed the car? [B]ridge? Although are to the conversa- [W]hite
Who
on the
we
stopped
privy
shotgun
Michael Mills.
tions
from
water. Who?
occurred,
pulled
bag
Mills.
Who moved the
out
car? Michael
Shiplee’s
opening
introduced to
in his
state-
you
Who committed suicide?
prosecutor
ment, Michael Mills isn’t here
he committed suicide.
because
any
Although
the court
instruct the
not to draw
did
suicide,
reading
inferences from the fact Mills’s
fair
closing
prosecutor’s
arguments indicates that the
comments were
response
portrayal
principal,
to the defense
of Mills as
and were
designed
theory that
to advance the State’s
defendant was
Therefore,
regard
shooter.
to the own-conduct
least with
*52
determination, the issue was
to an
sufficient to
“contested
extent
Wilson,
impact
prosecutor’s
minimize
the
the
infraction.” .
I,
243,
supra,
(quoting
supra,
Moreover, despite improper aspects the nature of of the certain summation, unambiguous provided by the instruction the court guilt phase prosecutor’s the end of the reassures us that the closing trial: deprive comments did this defendant of a fair Regardless arguments counsel in their their of what have said to you, may it case, discussions with as to what recall the in the is about evidence you, they guide judges of the evidence of the facts. recollection that must as your you something if that and I’m have been in So, said, there was sure it would they good something faith, but if there was said about how recall the evidence they they a witness if is different recall be, it, what said that than the said, way you they determining must is and own recollection in what the evidence you rely upon your
what the facts are.
Arguments,
openings
statements,
remarks,
and summations of counsel are not
Although
evidence
the case and
not be treated as evidence.
the
may
attorneys
out to
what
think
in the
may point
you
case,
must
properly
they
important
you
rely
understanding and
solely
recollection of the evidence
upon your
your
that was
during
admitted
the trial.
presume
jury
will
We
adhered to the court’s instruction.
Muhammad,
State v.
23, 52,
145 N.J.
(1996);
State v.
In completeness, briefly the interest of we also address and reject challenge defendant’s to the manner in which the trial court objections dealt with reject to the State’s summation. We contention that improperly the trial court endorsed the State’s position jury. trial, in front hard-fought In this both sides received rulings objections. favorable and unfavorable on Fur- thermore, we find no evidence in suggest the record to prejudiced by, witnessed, defendant was jury even an angry part tone on the dealing of the trial court in with defense counsel at sidebar. As defense counsel on conceded the occasion demeanor, he aired concerns with the court’s “I want record to clear, I got, regardless, fair, be think the defendant incredibly an clean, judge throughout.” and evenhanded Jury
B. Information on Michael Mills’s Suicide argues Defendant repeated that the mention of Michael Mills’s noted, suicide him Mills denied a fair trial. As killed himself on began, June 1994. Before trial preclude defendant moved to telling jury suicide, the State from that Mills had committed as opposed informing jury simply that he had died. The prosecutor’s position was that necessary the information was context, provide so that would not be “shocked” if the truth identify prejudice was revealed later. Asked to defen- suicide, dant would suffer if the was told of Mills’s defense counsel balked: prejudice significant. asking I think that if it is irrelevant, is not If the Court for
prejudice, there is none if all offer is that he committed practically they suicide, *53 go surrounding But if then to wishes into the facts it period. anyone suicide, [Mills] to made about my sounds to me like a back door in statements put attempt can’t do. client, which they further, not pursue elected to matter Because defense counsel explicitly During ruled on issue. the State’s the court never “[y]ou’re going opening argument, prosecutor noted testify going is not hear from Michael Mills. Michael Mills Michael Mills committed suicide.” [19]94 because June Similarly, Kaighn placed Mills’s the State’s redirect Daniel jury: suicide before there was about had to Mr. Mills And then whether Q: you spoken question longer Mr. no that correct? Mills is with is way, us, or —
A: Yes. And what him? Q: happened hanged
A: He was found on his front porch. Suicide?
Q:
A: So say. they during Wrigley Kevin also testified to Mills’s suicide the State’s direct examination: give that? Did he names of else who had been involved in any
Q: you anybody guy A: this Mike. Yeah, anything And did he tell about—
Q: you thought A: he was a and his dad had him taken care of. He witness He says something he suicide like committed that. saying? This is what Mr. Feaster’s Q: A: Yeah. guy And that’s in relation to a named Mike?
Q: A: Yeah. object prosecutor’s opening
Defense counsel did not to the testimony provided by Kaighn Wrigley, comment or the nor fact, request limiting did defense counsel instruction. In de- emphasized during fense counsel Mills’s suicide summation argument further its that Mills rather than defendant was the shooter: against against [S]tate made better case Michael Mills than have they [defendant]. It couldn’t more clear. Who borrowed the car? Michael Mills. be [B]ridge? Although [W]hite
Who on the are not to the conversa- we stopped privy shotgun tions Michael Mills. occurred, from the water. Who? pulled bag out of Who moved the car? Michael Mills. Shiplee’s *54 opening Who committed suicide? The introduced to in his prosecutor state- you Michael ment, Mills isn’t here he because committed suicide. prosecutor objected to the insinuation that Mills’s suicide guilt. reflected his provided consciousness of The court then limiting instruction, objection, over defendant’s jury any should “not draw inferences as to Mr. Mills’[s] suicide may reasons that have existed for him to have committed suicide.” sentence, After the death defendant’s motion for a new trial was partially based on by the information heard relating Mills’s suicide. Finding that necessary the information was adequately jury, rejected inform the argument. the court argues
Defendant first that Mills’s suicide was irrelevant. De- fendant also testimony concerning submits that Mills’s suicide prejudiced by him unfairly raising specter of defendant’s guilt, suggesting consciousness of jury may because the have believed the suicide reflected guilt, Mills’s consciousness of consciousness was “by “transferred” to defendant association.” Next, defendant claims improperly that the information allowed to infer that Mills’s suicide resulted from his fear of defendant, thereby prejudicing jury against In defendant. contention, support of that points Kaighn’s defendant response they say” of “[s]o when asked whether Mills’s death was due to suicide, Wrigley’s characterization of defendant’s statement that his father “had Lastly, [Mills] taken care of.” relevant, submits that even if the information was probative its outweighed by value was prejudice the risk of undue under N.J.R.E. 403.
We find Mills’s
properly
suicide to be relevant information
presented
Mann,
jury.
410, 421-23,
to the
In State v.
132 N.J.
(1993),
attempt
support a
that the
is “sufficient to
reasonable inference
by
prosecution
to avoid
attempt
prompted
suicide
desire
guilt.”
of
punishment or was otherwise evidence
consciousness
Mann,
that a
supra,
Having determined that evidence of Mills’s suicide was relevant, unduly also that we conclude information did not prejudice may defendant. Under N.J.R.E. relevant evidence probative be excluded in the trial court’s if its value is discretion substantially outweighed by prejudice. the risk of undue Defen- suicide, argues may dant that the because it have indicated Mills’s conscience, guilty unfairly tarnished defendant in view of the likelihood that the would guilt transfer that consciousness of recognize plausibility However, him. We of that inference. equally plausible an inference to be drawn from Mills’s suicide is significant Mills’s role the murder was more than the State suggested, Thus, thereby lessening culpability of defendant. inferences, prejudicial two one to defendant and the other benefi- cial, could have been drawn from the evidence Mills’s suicide. In presented view of the substantial linking evidence at trial crime, perceive any prejudice defendant to the we occasioned Therefore, negative taking inference was minimal. into testimony concerning account the obvious relevance of the Mills’s suicide, probative we are unable to conclude that the of that value substantially outweighed by preju- evidence the risk of undue dice. alsoWe note the court’s clear instruction at the end of the guilt phase admonishing any not to draw inferences from the evidence of Mills’s suicide. persuaded
Nor are we manner which the presented unduly prejudiced information was Kaighn defendant. *56 they say” in response prosecutor’s inquiry “[s]o stated to the of Although may whether Mills committed suicide. that statement perceived indicating Kaighn’s be as belief that Mills’s death was suicide, actually Moreover, fleeting. not a the reference was prejudicial effect of the in statement was minimized view of the prosecutor’s acknowledgment that the death was a suicide. Simi larly, Wrigle/s testimony that defendant’s father had “taken care prosecutor of Mills” was an isolated reference that the declined to explore. object any Defense counsel did not of those state Moreover, relevance, in testimony’s ments. view of the we are any prejudice convinced that foreseeable to defendant could not outweighed probative have its value.
Recognizing attempted capitalize that defense counsel on during supports Mills’s suicide summation our conclusion. As suicide, noted, reality sugges- its is that Mills’s with attendant guilt, tion of inured to defendant’s benefit of Mills’s consciousness Mills, permissible as it at least that not defen- raised inference dant, may Donaghy. have Defense counsel’s summation killed inference, clearly encouraged jury to draw which the trial that discouraged directing jury no from court to draw inferences Mills’s suicide. Nonunanimity Felony-Murder Option
C. jury asserts that have been instructed Defendant should guilty having that it find of without to be could defendant murder murder, namely, particular purposeful- on the form of unanimous points or-knowing felony murder that or murder. Defendant out finding guilty for defendant of rational basis existed that was awry. rejected felony resulting robbery gone murder from We 361-63, argument Cooper, supra, same in 151 N.J. aspect A .2d and decline defendant’s invitation to overrule Cooper of our decision.
D. Sequential Purposeful-or-Knowing Murder Presentation Felony Murder Similarly, charg argues that the trial court erred ing jury felony only that it murder it should consider after acquitted purposeful-or-knowing mur convicted defendant rejected Cooper der. We that claim and adhere to the reason 363-70, ing in that decision. Id. at 700A.2d 306. Jury Knowledge Felony
E. of Sentence for Murder sponte The trial court to sua instruct that a failed felony murder conviction carried with it a minimum sentence of thirty imprisonment. years’ as Defendant raises omission plain error and contends that the the full aware of Cooper rejected analogous effect its In determination. we an claim, 370-78, id. at 700 A.2d and decline revisit *57 ruling.
F.
Hampton
Charges
Failure to Provide
and Kociolek
During
its instructions to
guilt phase,
the
at the end of the
provide
the trial
request
court did not
and defendant did not
the
charges
250,
required by
Hampton,
State v.
61 N.J.
Defendant first
that in
eases the failure to
Hampton
per
and Kociolek instructions is
se reversible error. We
Jordan,
rejected
analogous
an
contention in
v.
State
147 N.J.
(1997).
425-28,
Hampton
police
dealt with a defendant’s statements to
in a
104(c)
setting.
custodial
[Emphasis 104(c) application to instanc- Thus, by terms limits its its N.J.R.E. admissibility challenged of the defendant has es when the matter, Hampton does we find that preliminary As a statements. incriminating allegedly statements apply of the not bulk Wrigley’s testimony defendant; only admissibility of by made challenged. was provide a trial court to that the failure of the conclude
We testimony plain not regarding Wrigley’s was Hampton charge very unjust clearly capable producing an result. of error jury’s charge to call the attention to purpose Hampton by a criminal unreliability alleged statements made possible of the cross-examination, Here, Wrigley came under on defendant. thoroughly credibility chal during which his was sustained attack Furthermore, credibility provided a lenged. the court detailed assessing Wrigley’s sufficiently guided jury in instruction Hampton charge given, testimony. Although a reliability questions surrounding the was made well aware Wrigley. plain find no alleged statements to We of defendant’s Hampton charge sua provide failure to error in the court’s sponte. charge general relia- Hampton, a Kociolek involves
Unlike Kociolek, supra, at bility In 23 N.J. of a defendant’s statements. a defendant’s oral state- 129 A.2d we held that when him, against trial court must introduced ments have been caution it consider such evidence with instruct the should inaccuracy recognized and error generally “in risk view of the miscon- of verbal utterances and communication and recollection by applies in this case to the the hearer.” Kociolek struction Sadlowski, regarding Shiplee, Kaighn Wrigley testimony of Indeed, by the incrimi- inculpatory made defendant. statements by was at nating defendant to those witnesses statements made against case defendant. the heart of the State’s circumstances, charge should those a Kociolek Under Nevertheless, must determine whether the given. we have been clearly plain constituted error of such an instruction omission unjust case rested capable producing an result. Defendant’s witnesses, credibility of the largely attack on the State on his recollec- by specific impeachment of the witnesses’ characterized Defense incriminating statements made defendant. tion of the explored length the criminal records of certain wit- counsel nesses, curry their attempts to favor with the State and their *59 lie, reliability perception after and the of their motivation to Additionally, provided the ingesting drugs the court or alcohol. including on jury credibility charge, instructions with a detailed statements, abuse, lie. and motivation to inconsistent substance testimony, arguments and fully light that in are satisfied We instructions, reliability issue of the of defendant’s the critical thoroughly sufficiently placed incriminating was and statements Therefore, plain omission jury. we find no error before the charges. Hampton and Koeiolek Rights Testimony Invoked Miranda G. that Defendant trial, County Prose- Investigator At Alvarado of the Gloucester conducted an interview with defendant cutor’s Office described interview, 4, During that defen- 1993 arrest. after his November employer. As noted McCall was his dant indicated that Jim above, stated that defen- testified for the State and Jim McCall occasion, after the only him one which was dant worked for on murder, paid for services. That that he had his frequent testimony theory that defendant’s buttressed the State’s get money go “his he he needed to boss comments that way indicating that really him” shorthand owed was defendant’s interview with planned gas station. Defendant’s he to rob counsel, right after invoked his Alvarado ended when defendant incriminating that investi- having with statements been confronted gators gathered. had testify it to call Alvarado to indicated that intended
The State prosecutor employer. him his defendant told McCall was testify that testimony Alvarado would part that as of his stated 74 rights, that he waived those
defendant was read his Miranda by saying answer rights qualified his waiver that he would not but murders, any questions relating that defendant answered to the including question regarding his preliminary questions, several subsequently terminated the employment, and that defendant by invoking right prosecutor assert- interview his to counsel. The right mentioning invocation of his to counsel ed defendant’s logical necessary to there was a end to the show “Otherwisé, thinks, well, know, you why does interview: it end there?” 104, hearing pursuant
The court conducted a
to N.J.R.E.
Carroll,
575,
N.J.Super.
A.2d 1003
relying on State v.
256
607
denied,
(1992),
A.2d 656
(App.Div.),
130 N.J.
611
certif.
N.J.Super.
(App.Div.),
Ruscingno,
State v.
A.2d
denied,
(1987),
Q: say? right
A: invoked to counsel. He his And as a what did do? Q: so, result, you A: I ended the interview. time, request
At court did not defendant did not provide cautionary regard testimony. instruction with to the However, any concerning prosecutor not venture comment did summation, testimony during charge and the court’s informed
75 testify failure to could not be used that defendant’s a'gainst him. testimony impermissibly that Alvarado’s
Defendant
asserts
negative
from his invocation of
caused the
to draw a
inference
Further,
right.
contends that
there
his constitutional
logical ending,
to show that
the interview had a
was no need
relating
provided any
to the
defendant had not
statement
because
merely
background personal
informa-
investigation
offered
—he
only
personal
agreed
to answer
tion. Defendant stresses that he
relating
interrogatories
to the murders. Defen-
questions and not
regarding
employer could
the statement
his
dant submits that
revealing
right
of his
his invocation’
have been introduced without
by failing
counsel,
compounded
that the court
the error
cautionary
provide
instruction.
an immediate
470-71,
N.J.Super.
Ruscingno, supra, 217
526 A.2d
State v.
at
251,
testimony
waived his
officer’s
that a defendant
involved an
defendant believed
Miranda
rights, offered a statement
that the
him,
right to
silent when
exculpated
but then invoked his
remain
Upholding
incriminating evidence.
confronted
the officer with
testimony,
Appellate Division observed
the admission of the
testimony
unfavorable inference
that “this
was not elicited to draw
quiet
point;
to remain
at that
to the fact that defendant decided
rather,
interrogation
logical
testimony
had a
shows
Carroll,
supra,
251;
also State v.
471,
ending.” Id. at
see
526 A.2d
(citing Ruscingno 601-02,
N.J.Super.
However, testimony proffered in cases does where regarding relate substantial evidence a defendant’s statements crime, underlying jury that a about the such without further naturally question why testimony information would be inclined offered, may regarding subsequent events not a trial court in permit testimony explaining why its discretion an interview or interrogation properly was terminated. Such discretion would be only testimony complete presen if the exercised is essential to the testimony likely tation of the its would witness’s omission be instances, jury. cautionary to mislead or confuse the In those provided explains jury instruction should be to the reasons, people many speak police emphasizing decline to with for right right that a defendant’s invocation of his to counsel or may any way guilt. silent remain be used to infer We approach appropriate believe strikes an balance eliminat and, time, ing possible jury guarding confusion at the same against any impermissible inferences that could undermine a right defendant’s fundamental to a fair trial. Mi-
The record before us indicates that defendant waived his randa rights speak but stated that he would not about the Although murders. the State now asserts that defendant never waiver, qualified his that issue does not need to be addressed to purpose resolve defendant’s claim. The of Detective Alvarado’s testimony concerning was to relate defendant’s statements his employment. testimony purport convey Because his did not any information relevant to defendant’s involvement the mur- ders, likely speculate would not have been without an why Further, explanation of the interview ended. the court provided cautionary prevent should have instruction to drawing any against from unfavorable inferences defendant’s invo- right cation of his to counsel.
Nonetheless, actions did conclude that the trial court’s we First, fleeting note the nature to reversible error. we not amount right of his to counsel. to defendant’s invocation of the reference during on the matter Additionally, prosecutor did not comment Moreover, emphatic an provided the court instruction summation. testify any way in hold defendant’s failure to the that it not directly to Although that instruction did not relate against him. counsel, impart it to the right of his did defendant’s invocation respect accorded defendant’s decision to remain jury the be factors, convergence those in addition to defen silent. instruction, cautionary persuades us request a dant’s failure to any unlikely to have drawn unfavorable infer that this was right to jeopardized his fundamental against defendant that ences a fair trial. Wrigley Concerning Kevin
H. Issues testimony Wrigley, of Kevin who presented The State night, jail defendant for one alleged that he shared a cell with inculpatory remarks. during time defendant made several which trial, identify Wrigley Wrigley could not defendant. At at first cell, spent only night one in the that he explained that it was dark defendant, lying most of the and that he was down there with talking an inmate Wrigley with time. asserted that defendant James, sharing Wrigley person the cell. who was the third named him name was Richard Feaster that defendant told his noted Wrigley. roughly height as
that he was the same objected admis- to the requested counsel a sidebar Defense testimony, arguing that no substantial reason Wrigley’s sion of in the same cell as defendant. Wrigley was existed to believe jury, the court conducted N.J.R.E. an presence Outside in the cell had a tattoo hearing. Wrigley person indicated the “Rich,” him as a Caucasian and described on his arm that said said his father Wrigley that defendant short hair. recalled with construction, raised from one that his bail had been worked inculpatory He on to recall the million to two million dollars. went made, including statements defendant had his that he assertions off,” guy’s “got couple “blew some head that he hundred dollars,” and that he “wanted to see what it felt like to kill somebody.” According Wrigley, he also recalled that defendant James, being told another inmate the cell who was released holding general prison population, from cell to return to something that he should tell Mike “Shalowski or like that” that *63 cross-examination, Wrigley defendant was there. On admitted really that “I don’t remember what [defendant] looks like.” judge Wrigley The then excused from the stand before enter- taining argument way courtroom, on the matter. On his out of the Wrigley prosecutor stated to the that “I think that’s him. I think there,” sitting referring him that’s to defendant. The court called stand, Wrigley Wrigley to the explained previ- back that he ously could not see defendant seated at the end of the defense vantage point table from his in the witness stand.
’ allowing Wrigley testify, that, In to the court observed based on courtroom, experience in testifying its that witnesses who are not positioned at the forefront of the witness stand do not have a complete view of the courtroom. The court also noted that Wrigley gave “very specific information” that was “consistent with circumstances,” information about [defendant’s] and concluded that it was “satisfied that reliability there’s sufficient indicia of to testify.” allow this witness to Wrigley returned and damaging testimony against delivered his defendant. rigorous cross-examination,
Defense counsel a during conducted Wrigley’s inability identify which initial defendant and the dark jail highlighted. condition of the cell During presenta- were case, deputy tion of defendant’s warden of the Gloucester jail that, County according jail records, Wrigley testified had holding dates, in separate been a cell on three but no record indicating existed holding defendant had ever been in a cell. However, both the State and stipulate defendant did that defen- holding 9,1995. dant inwas cell on According November 8 and records, holding cells on those Wrigley not been jail had to the dates. Wrigley provide did not a sufficient
Defendant asserts personal knowl- under N.J.R.E. 602 for his assertion foundation testimony. Defendant contends subject of his edge regarding the Wrigley possibility that learned jail records and the that the testimony rendered the newspaper accounts facts of the case from Wrigley’s testimony that to be admissible. Because too unreliable directly to kill went it felt like” to see what defendant “wanted kill, argues that his finding intent to of defendant’s reversed. De- conviction must be murder purposeful-or-knowing must be reversed that his death sentence also maintains fendant testimony Wrigley’s event, aspect of the “thrill-kill” any because phase. penalty poisoned that a find could conclude that a reasonable
We occurred, Wrigley and that between defendant conversation appro testimony was therefore Wrigley’s court’s admission of priate. N.J.R.E. provides: (bases experts), testimony by Rule 703 opinion as otherwise
Except provided is introduced sufficient to a matter unless evidence witness not testify may knowledge finding of the matter. Evidence the witness has personal support *64 knowledge consist of the not, testimony but need may, prove personal himself. witness testimony concern Here, inadequacies Wrigley’s any perceived admissibility. by jury, not its accorded weight it was to be including de- physical appearance, defendant’s Wrigley described him tattoo, told what defendant and recounted “Rich” fendant’s the accounts rendered corroborated the murder —which about Also, witnesses, namely Shiplee and Sadlowski. testifying other identify defendant difficulty, Wrigley was able initial after some jail cell. he had shared with whom in court as the individual Wrigley’s jury could have concluded Clearly, a reasonable was true. account change our concerning jail records does question demonstrated, did not those records As the State
conclusion. jail, although parties in the both was ever indicate that defendant stipulated A that defendant was fact there. reasonable basis jail therefore existed for the to find that the records were simply they inaccurate as related to defendant.
Indeed, Wrigley’s testimony, there were vulnerable areas of properly highlighted problems jury. defense counsel those for the provided adequate We are satisfied that the State an foundation to admissibility support Wrigley’s testimony and that the trial ruling admitting Wrigley’s testimony court’s did not constitute an abuse of discretion.
Defendant improperly also asserts that the trial court endorsed Wrigley’s testimony. above, Wrigley initially As noted failed to However, identify way courtroom, defendant. on his out he recognize sitting remarked that he did at the defense Wrigley explained table. that he did not have a full view from the witness stand agreed, due to an obstruction. The trial court observing that the view was obstructed unless a witness was sitting very at the front of the witness box. returned, prosecutor
When resumed direct exami- nation. Wrigley After the court instructed to roll his witness forward, chair forward and lean prosecutor again attempted identify have him defendant: good Now, [for] take look around
Q: this who identified himself as person Richard do Feaster, see him in court? you A: Yeah. Where is he?
Q: Okay. (Witness indicates.)
A: Now—
Q: pointing. The Court: You’re I want to be able to for the record who say you’re pointing sitting to. The individual extreme left, down at the table? your A: Yes.
The Court: Go ahead. That is the defendant. [the State]:
By jury being And to the taken Q: out, could see him in the prior courtroom? you A: No. *65 Because of what?
Q: sitting
A: of this, Cause back.
81 being sitting, The Court: This the side the bench where I’m an which of sitting too obstruction back. Go ahead. you’re if far added.] [Emphasis object counsel not Defense did to the court’s statement that the bench could a witness’s obstruct view defense table. argues
Defendant that the court’s statement an served as improper credibility Wrigley’s testimony, of endorsement the of “foreclos[ing] possibility the of fruitful this cross-examination on exclusively province jury issue.” Because it is of to within credibility, may find fact and evaluate witness court not a trial See, Walker, credibility e.g., vouch for the of a v. 33 witness. State 580, 595, (1960)(finding improper A.2d 567 N.J. 166 court’s state stand, jury ment in front of that “[s]he knows she is on she is they oath under and when witnesses are on the stand are all under deleted); they truth”)(emphasis oath and all tell the v. State Zwillman, 6, 20-21, N.J.Super. (App.Div.1970) 270 284 A.2d judge (noting judicial weight that trial “must not throw his one on (1971). other”), denied, side or N.J. A.2d 56 certif. unpersuaded We are that court’s brief reference you’re sitting that the bench was “an if far obstruction too impermissible Wrigley’s back” an constituted endorsement tes timony. why identify Wrigley When asked could not earlier, this, sitting he it offered was back.” “[be]cause explained The court then referred “this” bench, particular is an court’s which obstruction courtroom if too sitting a witness is far back. The court’s observation was a fact, opinion Wrigley actually an about statement whether sitting actually too far or whether his view was obstruct back perceive ed. no error in the We court’s factual clarification. Mannequin I. Admission of Overalls Use of Blood-Stained Knitting Through with Needle Its Head Defendant contends that he was denied a fair trial when the Donaghy’s evidence, court into admitted blood-stained overalls permitted path it medical when examiner demonstrate the *66 82 knitting by inserting through the head of a
of bullet a needle the only was mannequin. Defendant asserts that the evidence well, in inflammatory of the admis- highly but cumulative as view autopsy photographs and a and crime-scene sion of numerous videotape of crime the scene. objection and allowed the
The court overruled defendant’s
overalls,
objection
rejected
the
and
defendant’s renewed
to view
into
also made
the admission of the overalls
evidence. Defendant
Initially,
objection
mannequin.
the
timely
to the use of the
State
using
mannequin
in the victim’s
proposed
dressed
had
life-sized
wearing wig
and
to aid the medical examiner in his
overalls
wound,
description
fatal
but
the court disallowed it:
“[Djressing up
mannequin
putting
and
it in the courtroom is
the
simulating
Donaghy
like
is Mr.
and
he is dead on
kind of
this
here
you
inflammatory.”
in
of
The court
the floor
front
and
is
mannequin
wig
the use of the
but without the
or overalls.
allowed
mannequin
into
The court also refused to admit
evidence
using
during
precluded
prosecutor
it
summation. More-
from
over,
hospital
mannequin
gown
in a
was
was clothed
only
for
minutes. The court stated
before
two
three
jurors
any signs
that none of the
exhibited
for
record
during
presentation.
emotional distress
is
court
Considerable latitude
afforded trial
deter
evidence,
mining
to admit
and that
will be
whether
determination
only
v.
reversed
if it constitutes an abuse of discretion. See State
(1990);
523, 577-78,
McDougald, 120 N.J.
In the context the entire we permit suaded that the admission the overalls into evidence mannequin penetrated by knitting ting to observe the trial needle constituted an abuse court’s discretion. J. Cumulative Error sequential argues aggregate that the effect of the
Defendant *68 instructions, charge allegedly unanimity and inconsistent com- error, deprived opportu- with other of him of the bined claims murder, nity non-death-eligible to of a form of be convicted namely, accomplice-liability felony or murder murder. acknowledged recog have continue to
We
before and
again today
imperfection
nize
that some measure of
characterizes
trial,
I,
every
capital
supra, 123
almost
even
cases. Marshall
N.J.
169,
though
responsibili
at
V Penalty-Phase Issues A. Mitigating Prosecutor’s Characterization of Evidence During the penalty-phase opening dosing, prose- State’s and required cutor accept stressed to the that defendant be “personal responsibility” for prosecutor urged his acts. The jurors mitigating skeptically: to view defendant’s evidence common Ask Use sense. what is that on a your yourselves based they present, something exaggeration? on
real fact? Is that based or is it an Do have they diagnosis mind a want to reach then choose the facts specific they pick diagnosis, that that fit and then ask what does that have to this do with yourselves Donaghy. man[’s] of murder Keith coldly, calculated, preplanned requiring it What comes down to is [defendant] really accept personal his [Defendant] for acts. personal responsibility responsibility, personally killing Donaghy. for of act, the ultimate the innocent Keith That’s responsible act the ultimate and he should be the ultimate for required accept responsibility and that’s act the death penalty. mistrial, immediately objected Defense counsel for a moved arguing acceptance is not of responsibili- “[t]his about the ty____ making appear presentation [The is] State it like where, fact, mitigating responsibility, factors is a denial of it is legal right.” prosecutor implied presentation denied he that the
mitigating responsibility. was a evidence denial The court provide denied the motion for mistrial and declined to a curative *69 directly responded prosecu- instruction. Defense counsel to the personal responsibility tor’s contentions about several times dur- ing opening: phase nothing his of this case has to do with “[T]his to rejection responsibility. It has do with what
acceptance or of all of the circumstances as the appropriate punishment an under opening, Later on in the defense counsel stressed law allows.” “[tjhese they [mitigating are not excuses. If were factors] that responsibility would have they excuses of excuses would be guilt They are to and innocence. not.” been offered as issues jury closing, again the that are “[w]e In defense counsel reminded merely talking avoiding punishment We’re talk- about here. not punishment.” Defense counsel also ing about the measure gets no [defendant] that is no excuse. walk “[t]his [It] added is, life, spare eligible, not be that park. you If his he would the jail, years____ from for 30 real even considered be released escaping responsibility.” is no There closing, again the During prosecutor- said case the State’s personal He responsibility.” stated that “comes down factors, outweighed any mitigating and added aggravating factor you penalty gives guidance that the death him that “the law makes object his did to the responsible for ultimate act.” Defendant summation comments.
During
charge,
instructed
penalty-phase
its
court
mitigating
factors is
it is
remember
evidence
important
presence
justify or
conduct.
it is intended to
Bather,
not offered to
excuse
defendant’s
extenuating
or
or the
facts about
defendant’s life
character
circum-
present
surrounding
justify
less than
stances
murder
that would
sentence
death.
prosecutor’s
argues
Defendant
that the
comments im
duty weigh
properly
performing
from
their
distracted
mitigating
impermissibly
aggravating and
factors
characteriz
ing
mitigating
responsibility.
an effort to avoid
evidence as
excusing
justifying
Mitigating evidence is not aimed
or
conduct; rather,
extenuating
purpose
present
its
is “to
defendant’s
regarding
facts
the defendant’s life
character or the circum
surrounding
justify
stances
the murder
would
a sentence less
Bey,
than death.” State v.
129 N.J.
87
III,
improper.
Bey
In
supra,
“excuse” is
Ibid.
we determined that
sufficiently
jury
because
court
regarding
the
instructed the
the
evidence,
purpose mitigating
prosecutor’s
of
the
miseharacteriza
capacity
unjust
tion did not have the
to cause an
result.
Id. at
620-21,
In the did employ this not the term “excuse.” Nevertheless, implication the of prosecutor’s the to reference clear, “personal responsibility” abundantly and is tantamount to labeling mitigating evidence as an Defense did “excuse.” counsel III, register timely objection, Bey unlike in id. at A.2d 610 regard at with the opening least State’s How statement. ever, III, Bey repeatedly also unlike defense counsel countered comments, vigorously arguing the on erroneous several occasions mitigating attempt that the evidence was not an defen excuse personal responsibility dant’s conduct or avoid for the murder. unequivocal jury The court’s made instructions also clear to the presence of mitigating justify “the factors is not offered to Indeed, excuse the defendant’s conduct.” tracked instruction II, Bey language supra, this Court used 548 N.J. at A .2d887.
An immediate would curative instruction have been the Nevertheless, preferred remedy. we satisfied are that defense counterarguments, along counsel’s effective with the court’s clear jury regarding purpose mitigating instructions of evi dence, any prosecutorial combined render misconduct harmless. jury responsibility This was made well aware of their proper mitigating discharge play role evidence was to responsibility. Mitigating
B. Burden Proof for Factors correctly The trial court instructed the that defendant bore factors, coming of mitigating burden of forward with evidence but did inform had not State the burden disproving request those factors. Defendant an did such instruction, plain and raises the court’s omission as error. We Chew, rejected analogous claims in v. State
have addressed
(1997),
30, 85,
Cooper, supra, 151
C Dangerousness
of Future Dyer, expressed psychologist, Dr. testified for the defense and a opinion that defendant would be amenable to rehabilitation sports. experience On cross- past on his with work based examination, might of prosecutor explored what become defen- during long prison stay: dant jail] [in [inmates]? And the to learn those other from tendency
Q: degree I don’t if I that with of A: know would state any certainty. that’s isn’t it? Well, it,
Q: part attempting [sic] A he learn from the who were to Well, would optimumly people him teach educate him and counsel him. trade, that’s The other side is if have a to commit crimes and what you tendency Q: you good to an want to that’s a school be in for extended time? do, period I will concede that. Well, A: Latimer,
Additionally, Dr. a psychiatrist the defense called who impulsive in testified that defendant was stressful situations. Latimer, arguably During prosecutor Dr. cross-examination of imprisonment might that attendant to lead insinuated stress violently. object to react Defendant did not either cross-examination, not further prosecutor and the did offer com- during ment the State’s summation. object,
Although attempted court defendant did not tailor any by the cross- its instruction address concerns raised jury experts. It informed the that it examination of defendant’s aggravating only murder could consider as an factor that the robbery; alleged to committed the course of a it have been jury amenability it could consider defendant’s reminded the rehabilitation, specifically against drawing an but warned infer- ence that defendant would “learn from the criminals not Moreover, jury officials.” the court instructed the correction
89 you upon defendant, “if have not you decided death for the must possible assume that his future not endanger release would soci- ety.” prosecutor’s
Defendant claims that the
cross-examina
tion of
impermissibly
prejudicially
the two witnesses
intro
duced to
nonstatutory
dangerousness.
factor of future
may
The State
not
that nonstatutory
justify
advance
factor to
See, e.g., Coyle, supra,
230-31,
death sentence.
D. of Probable gregate Noncapital Sentence penalty phase proceedings,
Prior to the commencement of the inquired trial the court whether defense wished to counsel have jury the informed of possible defendant’s sentences on the non- capital agreed convictions. Defense counsel that such a disclosure appropriate. During introductory penal- its comments in the ty phase, court jury the first reminded the the murder thirty years’ conviction result in at imprisonment would least parole. explained It without then that defendant could receive twenty years robbery charge, between ten and on the which ineligibility, and three five years’ parole ten carried as much as carry as two- charge, could as much years weapon the which on jury parole ineligibility. The court told the years’ and-one-half concurrently consecutively be that those sentences could served It then admon- to the murder conviction. to each other and/or jury: the ished for the other are me to make. The sentences Those decisions for possible regarding the a should not influence decision your appropriateness convictions giving charge. for I’m this information your on the murder you death sentence
informational only. purposes object- the that it day, defense counsel informed court The next jury the not to aspect of the instruction that told ed to that weighing appropriateness the a the sentences when consider provided identical disagreed, The court death sentence. penalty phase. Additionally, instruction at the conclusion of during that defendant’s total defense stated summation counsel [years] a parole ineligibility be 42 and half period of “could out.” After the death parole might decide to let him board not verdict, twenty years ten sentenced with court defendant ineligibility robbery years’ parole on the conviction consecutive weapon five-year term on the defendant’s death sentence and charge robbery to run sentence. concurrent contends that the instruction was erroneous two
Defendant First, respects. argues jury that the should have been alleged permitted to the sentences to rebut the State’s consider dangerousness. Defendant also reliance on defendant’s future aggregate defendant’s sentence should have been submits that mitigation, by purposes for and that the considered informing jury that court erred there was “reasonable robbery that the on the conviction would be likelihood” sentence impose it the sentence for murder and that would consecutive to parole-ineligibility period robbery on conviction. ten-year legal potential knows effect of capital
That a
*73
Mejia,
485,
supra, 141
at
662 A.2d
its decision is essential.
N.J.
601,
I,
308;
III,
Bey
610 A.2d
In Martini
supra,
91 informing juries trial should during courts follow when the penalty phase possible the to imposed noncapital of sentences be on arising capital convictions from the trial same as the murder conviction, although jury and held that should be of a informed convictions, possible defendant’s sentences for other that informa- jury’s tion should not pro- influence determination about the III, Bey supra, priety 603, death 129 N.J. at sentence. Cf. (noting 610 proper “[t]he A.2d 814 is struck” balance with an informing jury pending prior instruction for sentences convic- tions, instructing jury only penalty-phase but base decision on factors). aggravating mitigating Such an “will instruction dispelling part assist in confusion on jury help and will safeguard against improper sentencing determinations.” Martini I, supra, N.J. at A.2d 1208. The trial court’s precedent. reject instructions conformed with that We defen- argument noncapital dant’s that the sentences should been have jury mitigation. considered in jury
Defendant’s contention that should have been told that there was a “reasonable likelihood” defendant’s noncapital sentences would be consecutive has the benefit of I, supra, hindsight. although In rejecting argument Loftin lengthy noncapital presented mitigat that a sentence must be as a factor, ing we held that cases, future if the based on court, the evidence believes that there is presented a realistic likelihood that will it a sentence be served impose consecutively any jury sentences, defendant’s the event not return death prior does should so sentence, be informed. [146 N.J. at 680 A.2d 677.] I, however, decided several months after this defen
Loftin
dant’s
fully complied
trial concluded. The trial court’s instruction
with Martini I’s admonition that
juries
should be informed that
[noncapital]
may may
consecutively
“the
sentence
not run
murder,
that for
but that the
for
determination is left
the court.”
N.J.
B. Proportionality Review Capital Act, Pursuant 2C:11-3e, to the Punishment N.J.S.A. requests a determination whether his “sentence is disproportionate penalty imposed eases, to the in similar consider ing both the crime and the defendant.” Review of defendant’s proceed sentence will in briefing accordance with a argument and schedule to be established the Clerk of the Court after consul tation with counsel.
VII affirm We defendant’s convictions and sentence of death. HANDLER, J., dissenting.
Today, again capital-murder Court affirms a conviction and despite death egregious sentence jury charges errors in the prosecutorial extreme again, misconduct. Once repeats the Court principles resolute designed that are to maximize a defendant’s protections fairness, greatest and to achieve possible, to the extent capital Court, in again, eases. Once conceding those principles violated, have been nonetheless finds those violations inconsequential. Court, It distressing that this in cases involv- ing murder, prosecution capital for guaran- has come to honor process tees of due in ought fairness the breach. It affirm capital-murder conviction and death sentence when criti- cal in validity doubts their I exist. therefore dissent. majority upholds defendant’s death though sentence
guilt-phase jury charge respect of the own-conduct determina- confusing, contradictory, tion was and inaccurate. I believe that the deficiencies in the instructions warrant reversal of the and, thus, own-conduct determination reversal of defendant’s join dissenting Consequently, I death Justice O’Hem’s sentence. opinion. addition, prosecutor’s repeated
In I acts of believe require purposeful-or-knowing misconduct reversal defendant’s my opinion, In the trial murder conviction and death sentence. penalty-phase ultimate-outcome instruction also court’s erroneous separately I on mandates reversal defendant’s sentence. write points. these
I occasions, legiti- prosecutor On crossed the bounds of three By argument questioning engaged mate in misconduct. isolation, considering majority each instance devalues the prejudicial impact prosecutor’s misconduct. When appraised totality together, of the misconduct are instances compel prejudice the misconduct and the to defendant reversal of *76 purposeful-or-knowing defendant’s murder conviction and death Further, summation, prosecutor’s guilt-phase sentence. the despite which the utter absence evidence he described authori- tatively robbery in vivid and detail the and murder of Keith by Donaghy, itself mandates reversal of defendant’s murder con- viction death and sentence.
A. presented The State evidence of the before after the events approximately during one hour which Michael Mills and defendant night were from Cafe absent the Columbia on the October According evidence, 1993. Mills and the State’s defendant prior leaving They possessed gun for a car looked bar. they They when the bar. drove off in Renee Burkhardt’s car left Mills, subsequent- with An hour Mills behind wheel. later defendant, ly evening, returned to the bar. Later that defendant inculpatory robbery made regarding statements and murder of Donaghy.
Except Donaghy gun for the fact that was shot Mills and robbed, possessed defendant had and was the State did not any present actually during evidence about what had occurred hour after Mills and defendant had left the Columbia Cafe. The any produce eyewitness testimony State did not or forensic evi- any light exactly happened during dence that shed on what had provided only that hour or so. Defendant’s oral statements description of the crime. additional, inadmissible, possessed per-
The State but evidence taining robbery. to the commission of the murder and Prior to suicide, committing gave police. Mills In a statement to the statement, Mills detailed what had occurred from the time he and through left the Columbia Cafe the moment he re- turned to The the bar. was aware that Mills had committed prior to trial. suicide prosecutor
The absence of admissible evidence did not deter the offering description from an animated of the crime. He stated: So what Around 8:00 Mills and Feaster out. Mills is the driver. happens? pull along [defendant’s] Somewhere that route first act of act of kill, intent first shotgun to kill intent occurs. He takes the purpose, preplanned, premeditated, slug. loads it with the court, immediately objected, Defense counsel but the trial charac- inference, terizing prosecutor’s statement as an concluded prosecutor’s permissible. statement was prosecutor continued: during putting slug he doesn’t do it but the act of this into Well, ride, maybe gun, slug. an an intent, this intent to use this use it with a It’s not the weapon game. slug, shot, bird or whatever would use for small This is a this is a three you ounce of lead. That’s his first act of intent. quarter piece
* * * *77 gas [Defendant] and Mills are him on headed towards the station with intent lolling [Wr]igley it, Keith. As he wanted to feel what it was like to kill. And puts [of scene] what find from the that is what the video the crime is you pictures station, his intent was when he went first to kill. Ogden What do do? drive down the front. Here is Road. drive They They they in front of the station. And here are the windows. Keith is seated here. They job. doing And can see that seated there his continue down. alone, They he’s they go down the the road between Texaco and— counsel, citing evidentiary support for Defense the lack of the statements, again prosecutor’s objected. The trial court instruct- prosecutor speculation him ed the not to ask for and exhorted merely prosecutor ask for inferences on the record. The based jury: did not heed the court. He stated to the “Pulled down next Georgetown park. going going Road Mills is to—he’s be getaway do? the driver. What does Feaster It’s loaded —not objected now—.” Defense counsel for a third time. At a sidebar conference, prosecutor’s trial court that the com- concluded questioned proper. ments were When counsel the eviden- defense tiary prosecutor’s basis for the statement that Mills was the driver, getaway prosecutor had never insisted he made that statement. prosecutor
The went on same vein: Hannigan Sergeant The second of this to kill is, act of his intent premeditation says long shotgun trigger go can all All on this it doesn’t off. you pull day day long. shotgun What have to do in have to do order for the fire? You cock you the hammer That act is use this to kill armed with someone, back. intent slug gun. gas gets ball in this And is done before he into the pumpkin station, gun. because he not have time in the station to That does once he’s cock this is done while into the he is on his station. way go? goes along And how does he He this from the across, he sneaks way, bays, looking Keith, and there is the door. out the doesn’t see him windows, who coming because he’s from the blind And what does side. he do? With hammer he cocked, Remember, shoulders into the door. it from the inside, inside. opens He shoulders in the door like this. prosecutor subsequently painting in the filled canvas de- picture scriptive shooting from and the assailants’ ride gas station. completed summation, prosecutor
After the his defense counsel futilely objections. reiterated his Because counsel defense had already given closing argument, respond his he could not to the prosecutor’s remarks. aspects prosecutor’s closing argument
Several went far argument beyond presenting reasonable inferences from evi- supporting any dence. Due to the absence of the evidence and
97 clarifying cautionary prosecutor’s or instruction that the remarks possible could most be considered inferences to be from drawn evidence, jury likely the the believed those remarks were based directly on in possession evidence the State’s and that Mills was prosecutor’s the source for the narrative. prosecutor’s A “summation ‘is limited commenting upon the ”
evidence and the reasonable inferences to be drawn therefrom.’
Johnson,
263, 296,
(1990)
State v.
120
(quoting
N.J.
Mills
driver,
getaway
“al-
as the
prosecutor’s characterization of Mills
separates
fine
forceful from
though approaching the
line
argument,
fair
to be
impermissible closing
a]
inferenee[]
[was
*79
(internal
62,
from
record.” Ante at
The Court
that
the
comment
gun during
ride was
and cocked the
the car
defendant loaded
prosecutor’s
425.
improper.
ante at
716 A.2d at
The
See
gun
and cocked
in the car
assertion that defendant loaded
the
absolutely
support
gun could have
finds
no
in the record. The
Shiplee’s
it
long
been loaded
before defendant retrieved
from Tina
trunk;
gun
Kaighn
was
when Daniel
lent it to
perhaps the
loaded
suggests
gun
that the
defendant. Not a shred
evidence
loaded when
and defendant
left the Columbia Cafe.
Mills
similarly
gun
cocked
claim
the
while
the car is
gun.'
could
long
far-fetched.
It does not take
to cock a
Defendant
time,
shooting
any
including the
have cocked it at
second before
Thus,
prosecutor’s
victim.
declaration that defendant
gun
gas
loaded and
drove him the
station
cocked
while Mills
support
highly inappropriate.
has no
in the record and was
prosecutor’s pronouncements
The Court also concedes that the
specific
in a
that defendant shouldered the door
manner and
approached Donaghy
prosecutorial
from the blind side constituted
misconduct.
ante at
By prose- speaking declarative presented cutor his inferences incontrovertible unreasonable as prosecutor facts. The manner in which the named Mills the getaway gave weight driver impermissible unwarranted to the inference made from the attenuated evidence adduced at trial. Similarly, way prosecutor confidently described how defen- purportedly dant gun during loaded and cocked the the ride to the gas station allegations obfuscated the fact that the absolutely had evidentiary support no imported an inaccurate aura of authen- ticity prosecutor’s into the unfounded accusations. The manner in prosecutor which closing argument delivered his accentuates impropriety prosecutor’s summation and escalates the prejudicial impact on defendant.
Though finding
prosecutor’s
several of the
comments to be
“inappropriate,”
persuaded
the Court is “not
that in the context of
prosecutor’s
the entire trial the
capacity
comments had the
deprive
defendant of a fair trial.” Ante at
As the Court
“In
whether the misconduct
trial,
prejudicial
is
and thus denied defendant a fair
we will
registered
consider
timely objection,
whether counsel
a
whether
promptly,
the remark was withdrawn
and whether
the court
struck
disregard
the remarks and ordered the
to
them.”
Ante at
Referring to matters outside record is prosecutor’s duty to a summation based on sion from the deliver 139-41, E.g., at Bogen, adduced trial. 13 N.J. the evidence at 295; § A .2d also ABA Criminal Justice 3-5.8a see Standards for Standards) (“In (3d 1993) (ABA closing argument jury, ed. to prosecutor may argue all reasonable inferences from evidence intentionally prosecutor in the The should not misstate record. may jury as it or mislead the to inferences evidence (“Assertions draw.”); 3-5.8, proven § of fact id. at comment not subject testimony unsworn of the and are not amount to advocate (“The cross-examination.”); prosecutor § not to id. at 3-5.9 should intentionally argue refer to on the of facts outside the basis record.”). prosecutor’s egregiousness of the conduct inten- The is apparent prosecutor’s sified in this case because the source for statement, Mills’s which was not extra-record assertions was subject Referring to cross-examination. to extra-record matters gravest personal knowledge is forms of within one’s one prosecutorial misconduct. is the not of to a an ordinary party controversy, [prosecutor] representative govern sovereignty obligation compelling to as its but of a whose is as impartially obligation govern interest, at in a all; therefore, and whose criminal prosecution justice a As is that it shall win but that shall be done. he is ease, such, definite the twofold law, sense the servant aim of which
peculiar very guilt shall not or innocence suffer. He with earnestness escape may prosecute vigor he while hard is not But, should do so. he strike he blows, indeed, may — to strike foul It is as much to refrain from ones. his liberty duty improper wrongful legitimate it is to use methods calculated conviction as produce every bring just means to about one. jury, greater degree, average It that the in a or less is fair has confidence say obligations, prosecuting rest be these which so will upon attorney, plainly suggestions, and, observed. insinuations, faithfully Consequently, improper espe- weight knowledge against assertions are much cially, personal apt cany *81 when should none. accused they cany properly [Berger States, v. United 295 55 79 L. 1321 78, 88, 629, 633, 1314, U.S. S.Ct. Ed. added).] (1935) (emphasis (RPC) Jersey See also New Rules Conduct 3.4e Professional of attorneys knowledge (forbidding “asserting] personal from issue”). case, little, any, facts in In this if evidence adduced at supported prosecutor’s trial the assertions that Mills awas mere driver, getaway gun during that defendant loaded and cocked the station, gas approached the ride to the and that defendant Dona- Yet, ghy Mills, jury prior from the blind side. the was aware that suicide, committing spoken police. jury to had to The that knew police Mills had informed officers of the location of the discarded gun. extremely likely, given prosecutor’s dogmatic It is thus presentation, jury police that the that had inferred Mills told the murder, surrounding robbery his version of events readily police surmised that Mills’s statement was the source prosecutor’s allegations. for the extra-record prosecutor expressly While the neither used Mills’s statement evidentiary gaps fill explicitly nor attributed to Mills the imparted, factual information appearance prose- that he of the illicitly referring cutor Al- the statement was unmistakable. though jury was unaware of the actual contents Mills’s statement, prosecutor confidently jury because the told the what happened had after Mills and defendant had left the Columbia Cafe, prosecutor’s could not know that the summation did parrot Mills’s statement. prosecutor’s weight. summation carried tremendous government [B]ecause the of the it is prosecutor State, represents people jurors
reasonable to
have confidence that he will
fulfill his
say
fairly
duty
justice
guilty
see that
is done whether
conviction of the
or
of the
by
acquittal
innocent. His comments in summation whether
with
proper
improper carry
juror
them the
of all he
It
is
will believe
authority
represents.
unlikely
would
mislead him.
prosecutor
intentionally
(citation omitted).]
[Farrell,
102 only arguments, prestige associated with the because office, fact-finding prosecutor’s because of the facilities but also office.”). finding prosecutorial In the presumably available to the harmless, majority chooses to underestimate the misconduct against prosecutor’s juxtaposed power of the summation. When against guard prosecutorial to miscon- this Court’s commitment cases, Ramseur, 323-24, capital supra, duct in see 106 N.J. 524 prose- comprehend. that The A.2d choice is most difficult allegations impacted jury’s guilt-phase finding cutor’s baseless Donaghy had to kill and that that defendant intended addition, by In unjustifiably killed his conduct. had own embellishing premeditation, prosecutor’s defendant’s summa- jury’s penalty-phase tion affected verdict. prosecutor’s getaway
The
characterization of Mills as a mere
By asserting
driver tainted
own-conduct determination.
that
driver,
passive getaway
likely
the prosecutor
Mills was the
distort-
jury’s
testimony,
ed the
view
which contained minimal
suggesting
simply
evidence
that Mills
sat in the car while defen-
gas
prosecutor virtually
into the
The
dant went
station.
foreclos-
possibility
Donaghy by asserting,
Mills could have
ed
shot
support
merely
or
qualification,
without
Mills
waited in the
robbery
car while defendant committed the
and murder.
prosecutor’s
allegations
The
unfounded
that defendant loaded
gun during
gas
and cocked the
the ride
station
likely
jury’s
Donaghy
defendant blindsided
contaminated the
find-
minimum,
ing
purposeful
knowing.
that the
At a
homicide was
accusations,
exaggerated
premeditation,
those
which
defendant’s
jury’s
corrupted the
to die.
decision
sentence defendant
See
(1992) (.Mar-
Marshall,
109, 155,
v.
State
130 N.J.
Likewise, prosecutorial requires despite misconduct reversal defendant, suggesting the existence of evidence his own conduct, purposefully Donaghy. Though murdered defendant al- legedly fatally made numerous statements in which he admitted to shooting Donaghy, regarding doubts whether those statements precludes finding prosecutor’s were ever made that the charac- getaway terization of Mills as a mere driver was harmless. The accusing having committing witnesses defendant of admitted to gave testimony the murder that contradicted other witnesses’ addition, testimony. In sometimes their own defense counsel witnesses, vigorously impeached those who either had criminal promises upon records or of reward conditioned defendant’s Moreover, many drug murder conviction. of these witnesses were drugs users who were under the influence of or alcohol on the Besides, night of the crimes. Mills’s suicide illustrates a con- he, guilt give sciousness of that could rise to the inference that defendant, Therefore, triggerman. prosecutorial was the mis- conduct tainted the own-conduct determination. implying killing
The circumstantial evidence that the of Dona- ghy paled comparison prosecutor’s was intentional to the un- grounded assertions that defendant had loaded and cocked the gun during Donaghy. ear and had blindsided ride Even
104 assuming prosecutorial misconduct did not infect the Donaghy jury’s purposeful that the determination murder of allegations knowing, premeditation affected the the baseless degree penalty-phase premedita- deliberations. A defendant’s critically tion influences his deathworthiness. See v. Marti- State (1994) (Martini denied, ni, 3, 53, II), 651 A.2d cert. N.J. II, 875, 116 203, 133 (1995); 516 U.S. S.Ct. L. Ed.2d 137 Marshall supra, prosecutor’s 130 N.J. at A.2d 1059. The unfound- exaggeration premeditation ed defendant’s contaminated penalty-phase deliberations. prosecutor’s getaway as characterization of Mills a mere requires
driver reversal of determination. Fur- the own-conduct thermore, prosecutor’s unjustified allegations that defendant gun gas loaded and to the cocked the while Mills drove station approached compel Donaghy that defendant from the side blind purposeful-or-knowing reversal of murder At conviction. minimum, poisoned penalty-phase those accusations delibera- *84 of tions mandate reversal defendant’s death sentence.
B. only guilt-phase The summation not the in which was instance prosecutor improperly. During opening closing the acted his arguments penalty phase, prosecutor argued in the the presentation mitigating defendant’s evidence to an amounted attempt personal responsibility to evade for the commission of the robbery and murder. statement,
In his penalty-phase opening prosecutor argued: Use Ask common sense. what is that based on a your yourselves they present, something exaggeration? fact? real Is that based on it an Do have in is they diagnosis mind a want and then to reach and choose the facts specific they pick diagnosis, that fit and then ask what does have to do with this yourselves Donaghy. man[’s] calculated, murder of Keith coldly, preplanned requiring What it to comes down is Mr. Feaster really accept personal for his acts. Mir. Feaster responsibility, personal responsibility personally killing Donaghy. for the ultimate innocent act, Keith That’s responsible should be ultimate act and he the ultimate for required accept responsibility that act and that’s the death penalty. response objection In to defense counsel’s and motion for a mistrial, prosecutor again once denied that he had made the time, objected.1 statement to which defense counsel This prosecutor implied claimed that he had never that defendant sought personal responsibility by offering mitigating avoid prosecutor’s evidence. misrepresentation, Based on the the court objection overruled the and denied defendant’s motion for a mistrial. summation,
In
penalty-phase
prosecutor
his
again
failed to
referring
personal responsibility.
refrain from
began
He
his
as
gentlemen,
summation
follows: “Ladies and
it comes down to
personal responsibility.
personally
Richard
responsible
Feaster is
act,
for
killing
being,
the ultimate
of an innocent human
and he
responsible
must be held
for that act.”
I concur
prosecutor’s
with the Court’s conclusion that
86-87,
argument
improper.
438;
was
See ante at
716 A.2d at
see
(1992)
557, 620-21,
Bey,
also
v.
(Bey
State
129 N.J.
C. prosecutor again improperly acted when he cross-examined experts. penalty phase, two defense At Dyer, Frank *85 3.3(a)(1) attorneys knowingly ”mak[ing3 1RPC forbids from a false statement prosecutor of material fact ... ato tribunal.” If the was aware that he was court, falsely denying improper that he had made comments to the he twice obligation committed a severe violation of his ethical to be candid toward the suggest misrepresenta- tribunal. The fact that-he made two denials false that his tions were not accidental. Latimer, a that psychologist, psychiatrist, testified Robert prosecutor con- to rehabilitation. amenable questioning an invitation to demon- strued the defense’s line of as dangerousness, impermissible an alleged strate future defendant’s nonstatutory aggravating factor. Dyer proceeded
The cross-examination of as follows: straight if that’s trade, talk about rehabilitation he learns a You Q: prison, going to rehabilitate him? making living. A him means of It would with the equip Q: Okay. saying going
A that in I’m not and of itself rehabilitation. produce Feaster, But that would be of—in evaluation of Mr. the trade would Q: part your rehabilitating committing him from other crimes? help A: That would a role. play selling read Ms. Feldman’s about Mr. Feaster and his of the Q: Did you report selling drugs for money money? —
A Yes. drugs selling And in that he how he saw other describes Q: Okay. people than and didn’t as realized made more he did have to work they money correct? is that hard, A Yes. selling began drugs night graduating And that he these after from
Q: Okay. high doing school. He further describes how he worked 12 hours a day selling evening, go would home in the work, wash, eat, concrete come out drugs. He said he to make is that if with, did this How consistent money. Richard he trade, teach Feaster a will be rehabilitated? you teaching A as I stated I did not him trade Well, before, testify merely his that it rehabilitation, would affect but would further cause. describing But as to Ms. Feldman, trade, he’s this he has a he’s Q: already Okay. working, night. concrete, but he wants to make easier later that money during change A This defendant’s on life I would matters, think, perspective lengthy of incarceration. period Because he would in a state other Q: felons, Yes. be with correct? prison A: I think it would be because he of his for an Well, would be deprived liberty extended time. period He’s in contact with other is that correct? Q: felons, deprived liberty, A: Well, yes. is to learn from other
Q: tendency And there those people? degree
A: if I I don’t know would state that with any certainty. of it, that’s isn’t it?
Q: Well, part *86 attempting A: Well, he would learn from the who were to optim[ally] teach people him a him trade, educate and counsel him. The other side is if have to commit crimes and Q: you that’s what tendency you good want to that’s in do, school to be for an extended of time? period A: I will concede that. Well, cross-examining
After regarding testimony Latimer that defen- very impulsive dant prone and was losing to control when stress, prosecutor under questioning: embarked on this line of being? What is the bottom far line as as what made him kill an Q: innocent human young A: ... This is a man who’s who comes from a very troubled, troubled very who in home, has a hole his head from of the frontal lobe on the lobe atrophy judgment thought-out that controls who has a low to the level activities, IQ awaiting go retardation, borderline who is under who is stress, into the upbringing great Marines, who has a horrible child with a deal of repressed anger given goes and at a moment commits a act that sour. planned What would about Q: the stress that is in a you say present prison system? A: I don’t have to understand; be more you specific. being Would that’s a stressful in
Q: situation, you say prison? just things A: Prison and divorce are about the two most stressful I hear from the right statisticians. Death in the divorce is family, there, but prison, up you beings have to understand that human are machines. Our brain is adaptive nothing but a machine to to the concentration adapt. People adapted camps. We can to loss of loved ones. We can to the most unfortunate adapt adapt because that is circumstances, a function of our brain. We are machines of I think so that he can to the adaptation, adapt prison system. long It will take a in time, and are on suicide certainly prisons people put jails. watch in in The most suicide takes routinely, especially lock-ups, frequent jails, because— place police lock-ups, city How do think that would affect Mr. the stress in Q: you Feaster, prison? going A: It’s him affect the same as it affects most who are in people prison. thing. It’s a terrible going Would that it’s more stressful than Q: into the Marines?2 you say A: course, Of certainly. 2The reference to the that, Marines came from the fact at the time of the join according
murder, Marines, defendant was about to which to Kevin Wrigley was one reason defendant wanted know what it was like to kill. why entering The insinuated that because the stress of the Marines caused prosecutor being kill, stress incarcerated could have a similar effect. Dyer prosecutor’s Latimer ex- cross-examination capaci- pertaining to of evidence defendant’s
ceeded mere rebuttal
rehabilitation,
mitigat-
proposed catch-all
ty for
one of defendant’s
*87
factors,
attempted
that
ing
improperly
to establish
and instead
justified
imposition
alleged
dangerousness
future
the
defendant’s
194, 230-31,
Coyle, 119 N.J.
574
of a death
See State v.
sentence.
(1990) (forbidding
danger-
advancing
951
from
future
A.2d
State
Rose,
factor);
112
nonstatutory aggravating
supra,
N.J.
ousness
520-21,
Ramseur,
(same);
supra,
at
548A.2d 1058
106 N.J.
(same). During
Dyer,
A.2d
of
the cross-examination
prison
strongly
prosecutor
generalizations about
life and
made
defendant,
tendency
criminality,
implied
due to his
toward
that
Similarly,
prisoners
learn from
to commit more crimes.
other
Latimer,
cross-examining
prosecutor suggested that the
while
prison
act
life would
defendant to
control and
stress
cause
lose
pertained
impulsively.
questioning
These lines of
to defendant’s
instances,
alleged
dangerousness.
prosecutor
In both
future
mitigation experts
took the conclusions of defendant’s
defen-
—that
prison
in a
envi-
dant was amenable to rehabilitation
structured
control—
predisposed
ronment and that stress
defendant to lose
and,
rebutting
prove
attempting
the conclusions
instead
falsity,
aggravating
as
In addition
their
used them
circumstances.
appropriately asserting
prison
would not rehabilitate de-
mitigating
control was
fendant and that defendant’s lack of
not
circumstance,
prosecutor
contended
if defendant were
spend
prison,
allowed to
life in
incarceration
him a
his
would make
cause
hardened criminal and
him to lose control and act on
criminality.
prosecutor
mitigating
A
enhanced
cannot utilize
evi-
danger.
a future
A vast
dence
show that
undermining
mitigating
distinction exists between
evidence
accepting
proof
nonstatutory aggravating
as
that evidence
latter,
By doing
prosecutor
improperly.
factor.
acted
prosecutor
improperly
The Court determines that
if the
had
factor,
dangerous nonstatutory aggravating
asserted the future
court’s
harmless.
curative instruction rendered
error
agree.
Ante at
at 439. I
I
that the
716 A.2d
do
believe
alleged
dangerousness,
assertion of defendant’s
future
when con-
along
prosecutor’s improper
sidered
with the
comments at the
guilt-phase
penalty-phase
penalty-phase
summations and the
opening argument, necessitates reversal of defendant’s death sen-
547, 611,
tence. See
v. Pennington,
State
119 N.J.
D.
forcefully
The Court has often
prosecutorial
condemned
miscon-
Forty-three years ago,
duct.
Chief Justice Vanderbilt wrote:
enforcing
A
must not
be zealous in
public prosecutor
law, he must
only
lacking
refrain from
conduct that is
consistently
the essentials of fair
any
play.
Where his conduct has crossed the line and
resulted
foul
we have not
play,
*88
right
hesitated to reverse the decision
it
below and remand
for a new trial. The
to
a fair trial must be
means at our command.
preserved by every
(1955).]
[State v.
19
117
540, 550,
N.J.
A.2d 592
D’Ippolito,
West,
(1959) (“[The
327, 338,
See also State v.
29 N.J.
149 A.2d217
prosecutor]
ordinary adversary;
is not an
represents
he
the State
by
judgment firmly
whose interest is served
an untainted
rooted
alone.”). Despite
in facts
prosecutor
the fact that the
in this case
engaged
crossed the line and
in
play,
foul
the Court hesitates to
reverse defendant’s murder conviction and death sentence.
In so
doing,
majority disregards
pledge
patrol vigi-
this Court’s
to
lantly prosecutorial
Ramseur,
capital
misconduct in
In
cases.
supra,
323-24,
188,
proscribed capital betrays no justice, than, at rather he also its Not does he scoff seek only represents respects. this Court sanction, the state Because death is harsh poorly. uniquely of resulting prejudice will more misconduct
necessity readily prosecutorial find from matters; than who fail to take in a case in other criminal capital prosecutors stringent obligations cases their ethical in thus seriously particularly capital strongly postponing, jeopardizing, of the law. risk and even the enforcement We challenge, our but are confident that will be to this ethical we equal prosecutors also stand take whatever action abuses. ready remedy any required added).] (emphasis [ ease, assiduously against majority guard this does not In Rather, deceptively prosecutorial excess. the Court deflates the impact prejudicial prosecutorial isolating of misconduct strength impropriety overstating each instance against case State’s defendant.
Sadly,
the Court’s decision is not an aberration. With the
Rose,
1058,
524,
exception of
112
at
A.2d
supra,
N.J.
548
this
repeatedly rejected powerful
prosecutorial
has
Court
claims
II,
capital
Harvey
supra,
in
N.J.
misconduct
cases. See
151
Marshall,
216-20,
596;
1, 152-64,
A .2d
699
State v.
123 N.J.
586
(1991) (Marshall
denied,
I),
929,
A.2d 85
cert.
507
113
U.S.
S.Ct.
1306,
(1993);
378,
Hightower,
II *89 court imposed The trial maximum on sentences defendant’s robbery possession an weapon unlawful convictions. The twenty-year prison court sentenced to a consecutive ten-year parole disqualifier robbing Donaghy. term with a for It five-year prison sentenced defendant to a concurrent term with a
Ill two-and-one-half-year parole disqualifier possessing for a sawed- shotgun. off penalty-phase charge,
In the
jury
the court informed the
maximum
noncapital
sentences for defendant’s
convictions. The
would,
to,
jury
likely
court did not tell the
that it
impose
consecutive sentences. The court also instructed the
possible
for
“[t]he
sentences
the other convictions should not
your
regarding
appropriateness
influence
decision
of a death
charge.”
my
sentence on the
In
opinion, by
informing
murder
likely
impose
that it was
a consecutive sentence for the
conviction,
robbery
the court committed reversible error. See
Harris,
122,
(1998) (Han-
246-50,
State v.
156 N.J.
The court’s likelihood of
on
consecutive sentence
robbery conviction can
imposition
be inferred from its ultimate
history
consistently
and the
imposing
courts
consecutive sen-
Harris,
246,
capital
supra,
tences in
eases.
In
the consecutive sentence defen- dant. jury
Had the
been
that defendant would not have been
aware
parole
forty years,
highly subjective penalty-
eligible for
for
had
phase
may have been affected. If defendant
deliberations
death,
robbery
to
his
of the
and
been sentenced
commission
precluded
parole eligibility
case
murder
this
would have
his
age
age
sixty-two,
until defendant
an
at which
reached
rarely engage
criminal
In State
people
in violent
behavior.
v.
Davis,
611,
(1984),
617,
96 N.J.
In
jury
the trial court should have instructed the
parole
it could
ineligibility mitigating
consider defendant’s
as
Loftin,
428,
supra,
evidence. See
Therefore, I conclude that defendant’s death sentence should be jury not reversed because the trial court did inform the that the likely impose court would robbery consecutive sentence on the jury conviction disregard and because the court instructed the noncapital defendant’s sentences.
Ill trial In Defendant’s was riddled with errors. addition to the guilt-phase charge being internally contradictory court’s and in- correct, pernicious prosecutorial pervaded guilt misconduct Moreover, penalty phases. trial court’s ultimate-outcome prejudicial. disregards instruction was erroneous The Court affirms these defects and defendant’s convictions and death sen- I tence. dissent.
O’HERN, J., dissenting. ease, capital erroneously
In this trial court instructed the jury unanimous, charge that its verdict on the had to murder be guilty a principal, accomplice, whether it found defendant as or eo- eonspirator. deprived That instruction defendant of the fair-trial right jurors to have some of the convict of murder on Brown, 481, See State v. 138 N.J. grounds. non-death-eligible 651 (1994). I Although holding A.2d 19 dissented from the Court’s Brown because I believed that the State was entitled to an murder, “acquittal-first” charge I capital verdict on the believe 114 prece- its adhere to equal that the Court should
with conviction dent. ease, It is true finds to be harmless.
In the Court the error this itself, instruction, parts the verdict sheet that other required be unanimous on suggested it to the that was However, capital murder. triggering element own-conduct inherently inade- contradictory instructions are held that we have (1991). Moore, 122 A.2d 864 quate. N.J. State v. I addressed, Coyle, A.2d 119 N.J. We first State v. (1990), charges preclude simulta- sequential the issue non-death-eligible of murder forms with neous consideration of Coyle, instructed the death-eligible forms. In the trial court *92 passion/provocation man- that not consider offense of it could slaughter acquitting the defendant of murder. We without first “potential to had the fore- held that trial court’s instruction jury passion/provocation of should close consideration whether killing manslaugh- purposeful from murder reduce an otherwise at 574A.2d 951. ter.” Id. Court, thereafter, consistently has trial courts held non-capital juries to consider forms of murder
should instruct Mejia, v. 141 simultaneously capital with murder. See State N.J. 483-85, (1995) (requiring A.2d simultaneous consider- 662 308 Brown, murder); supra, SBI ation of intent-to-kill murder and (requiring consideration at 651 A.2d simultaneous N.J. Brown, Coyle, Mejia accomplice). as principal of murder or a together proposition that when rational basis exists stand for jury capital non-death-eligible a of a for convict a defendant homicide,1 only charge must trial alternative form of not a court 1Non-death-eligible as an or forms of murder include murder accomplice or in the heat of murder passion provocation. Formerly, conspirator (SBI murder) serious-bodily-injury homicide, of murder was an alternative form charged murder, of that also had to be not lesser-included offense intent-to-kill offense, charge way jury but it must it in such a that the will simultaneously consider it with death-eligible the consideration of of law. Ante at agrees murder. The proposition with that Court 39, 716 A.2d 413. case, however,
In impermissible this sequencing of an alternative, lesser-included, but theory non-capital not of murder legitimate jury by requiring removed a verdict from this unanimi- ty non-unanimity charge when a required. was This de- error prived requires a fair defendant of trial and that we now reverse capital-murder conviction.
II incorrectly The trial court instructed the that it could accomplice liability consider acquitted unless and until it had by Then, then, only of Feaster murder his own conduct. accomplice liability: free to consider In this case State contends that the defendant Richard Feaster, committed the charged, offenses for which is the murder, murder, he I’m felony robbery, talMng right against Donaghy about those in Keith now, his own particular conduct. If are you doubt, convinced of reasonable then need not beyond consider you the alternative of is, that where type culpability responsibility, may guilty found of an be offense because the conduct of another for whom he person legally accountable. If are not convinced a reasonable doubt that the defendant his you beyond acted by committing own conduct then these consider and should crimes, may you guilty legally being consider whether he should found be them because *93 as an such accountable of other consider these accomplice person, you'll only instructions on he determine that is not accomplice liability you directly if first his conduct. oum responsible by added.]
[Emphasis change, of virtue constitutional amendment and simultaneously. By statutory death-eligible. I, 12; SBI murder is now N.J. Const. art. L. c. 111 para. 1993); Mejia, (signed State v. at 662 N.J. A.2d at 311. May supra, unanimity error, an incorrect compound the court added the To requirement: be unanimous on of any verdicts rendered must instructed,
As I any previously aggravated manslaughter, charges, reckless man- murder, it be these whether slaughter, 12 to to be a verdict. I’m Your verdicts must be liability. accomplice jurors along. go All 12 going give on as must to further instructions that we you guilty charges guilty agree not of of the that are you he’s either or any that considering. added.] [Emphasis Brown, liability (accomplice, theory on no a of Pursuant verdict Brown, supra, 138 principal, conspirator) need be unanimous. 519-20, 651 A.2d at 19. N.J. error, repeated mandating sequencing incorrect
The court the unanimity: required that I told if find the of liability you you
I then concept accomplice explained you that conduct, not commit the crimes his own should by that the defendant did you being legally guilty of as he should be found because responsible consider whether all that I for conduct of another under those explained. an the principles accomplice Finally, repeated sequencing connection court the incorrect n withthe own-conduct charge: guilty found of murder either because he committed the
A defendant be may just given [as] his own conduct or an in the murder. I’ve murder accomplice by an liability, a of principles accomplice detailed description, explanation you that I that determined and told would consider only you you you first if the murder his own conduct. by did commit added.] [Emphasis observes, portions charge majority As the there are non-unanimity option. correctly on the For instruct describing meaning require- example, in of the own-conduct ment, the court stated: killing doubt as to his own conduct or If have a reasonable' whether by you a as
if unable to reach unanimous decision reasonable doubt are you beyond distinguished as conduct, the murder his own whether the defendant committed being it final verdict on from for as an that is permissible responsible accomplice, again, that, issue and would result in the sentence imposition mandatory this of at but at least without [thirty] life, [thirty] for murder least years prison, up parole. However, charge, portion of that the court conclusion accomplice liability need not be considered again told *94 jury rejected theory and until the unless the defendant committed homicide his own conduct: guilty regarding [I]f find the of you murder, by-his-own-conduet guilty if him have found of murder and if it you becomes for question, appropriate to reach that those do not have to be as I you unanimous, question, already to you. explained impossible requirements sequen- It is to reconcile of mandated tial and unanimous deliberation the later on with instruction non- unanimity. internally contradictory. The instructions were The sequential prevented jury were instructions incorrect from simultaneously considering guilt the alternate of of non- theories capital given jury murder. verdict sheet to the neither jury questions simultaneously, directed to deliberate on the propose by-his-own-conduct liability nor did it and accomplice as equal alternatives. noted,
As
Brown held that in order to return a
of
conviction
jury
a
be
on
responsi-
murder
need not
unanimous
the theories of
bility
apply
if the alternate theories
of the
commission
same act
supports
and each of them
the conviction. Id. at
The error
this
as was in
is that a
cannot
acquit
principal
be
it must
as a
can
told
before it
consider
culpability
accomplice.
surely
as an
A murder conviction will
split
liability.
stand if the
between
two
theories
Id.
addition,
Ill
majority acknowledges
that there was error but concludes
that “the alterna-
error
harmless. The Court states
accomplice-liability
pre-
and
murder
tives of own-conduct murder
jury
one
resolve.” Ante at
sented the
with
indivisible issue to
Although largely
That
During guilt-phase proceedings, first must determine whether defendant considering, of murder, should be convicted of where appropriate, principles [such vicarious under N.J.S.A. 2C:2-6 or as liability accomplice conspiratorial guilty after it has of found defendant liability]. Only unanimously purposeful knowing murder should the turn of whether defendant question committed the act her homicidal his or own conduct. by Ubm analysis requires slightly The own-conduct a different factual inquiry analysis than principal of accomplice liability. judgment This is because a must be as to made whether participation defendant’s in the qualitatively homicidal act was eligible. sufficient to make the example, defendant death For Gerald, the beating defendant was one several involved in the elderly person. an We there held that language]] finding the “own-conduct” does necessitate specific standing defendant’s actions alone caused victim’s death. The relevant inquiry whether not the defendant in the homicidal actively directly participated injuries in the act, ie., infliction from which the victim died. The critical *96 are that [the] elements defendant in fact of his to acted, and conduct immediacy the victim’s demise.
[Id.
792.]
97,
549 A.2d
It is
to
concepts
thus incorrect
state that the
“presented
two
jury
40,
with one indivisible issue to resolve.” Ante at
caused
charge
necessity
an
when murderer
be no
for
own-conduct
would
Biegenwald,
v.
held that the
example,
alone. For
State
we
acts
accomplice liability,
on
when neither
failure
instruct the
charge
put
supporting such a
was ever
theory
nor facts
1, 19,
I verdict sheet use be revised would follows: *97 language occurring Bracketed to be used without brackets for murders after (1997); 326, 376-77, December 1992. State v. 151 N.J. 700 A.2d Cooper, (1995). State Harris,
see
v.
141 N.J.
POLLOCK, GARIBALDI, STEIN COLEMAN —5.
For reversal —Justices HANDLER and O’HERN —2.