*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW GERALD, WALTER M. DEFENDANT-APPELLANT. Argued 5,May 1987 Decided October 1988. *7 Brock, Designated Counsel, Espey Kathryn Lowell and A. Slocum, appellant (Alfred, A. Public argued the cause for Defender, attorney). Wronko, General, argued Deputy Attorney the R.
James (W. Edwards, respondent Attorney of Cary cause for General Moczula, attorney; Jersey, New James R. Wronko Boris briefs). of and on the counsel
The delivered opinion of the Court was CLIFFORD, J. offenses, including numerous
Defendant was convicted of murder, in the capital surrounding an incident resulted capital murder de- death Paul Matusz. On the conviction of death, to appeal wherefore his this fendant was sentenced 2:2-l(a)(3). right We affirm all of the as of under Rule Court is capital murder except of the one for judgments conviction charged indictment. On the in the thirteenth count acknowledges necessity capital charge murder the State for proceeding, expressed for penalty-phase the reasons new opinion. Beyond that we have determined the course this question guilt new that defendant is entitled to a trial on charge. on that
I A produced supported The fully evidence at trial the version facts follows. Matusz, old, eighty-nine years Paul, John lived with his son age Pleasantville, fifty-five, at the Matusz home in in Atlantic County. Their home was located on a dark wooded corner in a Matusz, stroke, area. elder secluded of a disabled because could walk with aid a cane. Inasmuch as neither self-sufficient, John Paul daughters, nor of John’s two Wilson, home, Helena Gaw and Lottie took staying turns cooking, cleaning, caring for both men. Friday, August 13,1982,
On staying Lottie Wilson was at her home. approximately p.m., father’s At 6:30 John Matusz re- evening tired first his floor bedroom. Paul Matusz upstairs went to his bedroom where he watched television and living later retired. In the room Mrs. Wilson watched a base- game set, ball on atop a new color television which sat an old console longer approxi- television set that no functioned. At mately 9:30 she in her went bed father’s bedroom. Soon she thereafter heard noise the other first floor bedroom room, to investigate. opened went As she door to that *8 eye she by standing was struck in the someone behind the door. males, Mrs. Wilson was then attacked black of two one tall, whom husky, she later with described as a round face and a mustache beard. One of the intruders had a knife blade, although Mrs. Wilson was unable to recall which of the floor, punched two it was. She was thrown to the in and kicked face, the and then hurled into the bathroom. Mrs. Wilson lying being recalled on the stomped bathroom floor on a num- ber of the times about face and wearing chest someone her, white-soled shoe. This man up you.” told “Shut or I’ll kill money When he asked kept, where the was she revealed the purse. location of her When her brother Paul heard Mrs. screams, investigate, whereup- Wilson’s he came downstairs to males him the foot of the on two black attacked staircase. in of men struck Paul the face with a television set. One the events, foregoing knowing the and not Shortly after whether house, in the Mrs. arose the intruders were still Wilson and kitchen, to her and telephoned went the where she sister the police. living local Then Mrs. Wilson entered the room where lying saw on the floor with old she her brother Paul console succeeding lifting on After in the set TV overturned his face. turning upright, Mrs. found from his face and it Wilson Paul’s had face cold to her touch. John Matusz been beaten and dragged leaning against hallway. from his bed into the He was wall, bleeding clutching portion profusely, top still of cane, Missing his was Mrs. which broken half. were Wil- cash, set, purse television son’s with about the new color $60 portable and an television set from Paul’s old black white upstairs bedroom. Henry
Officer John Calcerano and Detective Frank Department Police Pleasantville arrived at the Matusz home Although telephone hys- within minutes Mrs. Wilson’s call. terical, perpetrators and the events Mrs. Wilson described the Mrs. face swollen and generally as recited'above. Wilson’s was bleeding from the beaten. Paul Matusz was unconscious life, checking signs for Detective Frank nose and mouth. On pulse. breathing found Paul was not and had no Frank passage cardio-pulmonary began cleared Paul’s air resusci- soon found tation. A third officer who arrived afterwards pulse very Paul’s officer continued the efforts weak. The applied the victim. In the meantime Officer Calcerano revive bandages All victims then taken to John’s wounds. three were person- hospital by law-enforcement ambulance. Other finger- The nel on the scene. house was dusted arrived determined, any prints which, it was matched none of later The prints. officers concluded defendants’ first-floor point entry attackers’ bed- window room in Wilson first was assaulted. wood- which Mrs. *9 pried permit framed screen had off been from the outside to access. Matusz, ribs, nose,
Paul who suffered a two fractured broken face, multiple and contusions sides of the head and brain head, resulting emergency from blows died room Hospital at Shore Memorial p.m. at about 10:48 He did not regain death, consciousness before and therefore made no regarding identity statement of his assailant assailants. Jason, Dr. County Examiner, When Donald Atlantic Medical night morgue, examined Paul Matusz that at the he noticed patterns. bruises across his face three On Paul’s forehead there were imprints pattern, consisting four of a circular Second, four concentric circles. there was herringbone-type a pattern on the forehead next to the circular patterns. On the face, eye right nose, victim’s below the the left of the bruise, pattern there was a consisting multiple third rectan- gles. photographed These bruises were next day autopsy, according police to Dr. Jason and various witness- pictures accurately depicted es the appearance. the victim’s bruise, Dr. patterned Jason also a consisting observed four circles, concentric on Mrs. Wilson’s face.
According Jason, to Dr. by Paul’s death was caused blunt- injuries head, force to the specifically, cerebral concussions and nose, fractured inflicted blows the fists and feet. These resulted, injuries respectively, in swelling contusions and brain, and aspiration of blood into airway lungs. To- gether, produced these conditions Paul’s death. Because no stomach, blood was found in the victim’s Dr. Jason concluded that Paul’s nose was fractured he after lost consciousness. conscious, Had he been gag his reflex would him have forced swallow the rather it lungs. blood than inhale into his Dr. Jason observed on print Paul’s nose discernible sneaker produced could have been the same force caused the acknowledged broken nose. He as well that the tele- console falling vision set on “possibly” Paul’s face could have fractured *10 nose, resulting aspiration lay as he thereby his of blood on the floor. unconscious head,
Concerning to the Dr. Jason concluded that a the blows single have fractured the nose and simulta- first blow could unconsciousness, pointed that at neously but he out caused head, especially to the on the left side least some of the blows head and brain were the most severe contusions where found, Finally, unconscious. Dr. delivered after Paul was were single not have caused the that a blow could Jason determined Rather, injuries he injury or the other observed. brain the numerous blows and surmised that the sum of doctor death; injuries that it was medical- resultant various caused the “fatal” blow from all impossible for him to differentiate ly others, even had he watched and that this would have been so might some of the blows beating place; take and that while death, identify specifically could not he not have contributed had not. which ones had which face and lacerations of the Matusz suffered bruises John that he had injuries. There were indications from blunt-force required lamp. injuries Those with a probably been beaten He died treatment. hospital care and convalescence continued 3, 1982, having returned home. Lottie ever on October without abrasions, nose, and con- lacerations suffered a broken Wilson blows, face, neck, and chest due to several tusions body. on the rest of her She as smaller contusions well 1982; togeth- August jaws her were wired hospitalized until following the attack. er for six weeks
B at home Frank received a call August Detective On Gerald, Jody said that Walter informant who from an unknown mur- Reese, had committed the Matusz and Nelson Drakeford to sell the reported that Gerald had offered The informant der. and had told the informant how television sets informant stolen told Detec- The informant further easy burglary had been. tive Frank type where Gerald lived and the of car he drove. Finally, the informant paid. stated that he wanted to be Detec- tive Frank him Stoppers, told to call Crime organization an pays for leading information to the arrest and indictment of criminals. immediately
Detective Frank went to the Pleasantville Police *11 Department. there, While he was the follow-up call in came Stoppers, from Crime repeating the information summarized providing above and police additional information. The learned that outstanding there were two Gerald, arrest warrants for both for failure appear municipal to court on traffic tickets.
That same afternoon Investigator Detective Frank and McIn- tyre of the County Atlantic Prosecutor’s Office drove an home, unmarked car to period Gerald’s where over a of about they one hour sitting car, observed Gerald talking on his with friends, his driving and to nearby Gerald, and from a store. As Frank, by, who knew Detective drove he waved the detective. description informant’s of the car matched Gerald’s auto- mobile. The having authorities to decided arrest Gerald on the outstanding warrants, Detective Investigator Frank and Ray- mond Bolis of the Prosecutor’s Office by executed the warrants arresting Gerald at his home later evening. that At the time of the arrest Frank warrants, informed Gerald of the outstanding and police also indicated speak that wanted to with him in connection police with another questioned matter. The also Reese, Drakeford and they whom released after the two denied any indicated, involvement. however, Both men they had importuned Gerald, been by Bland, John and Eddie Walker to participate robbery. in the arresting Gerald,
After Detective Frank Investigator and police Bolis him headquarters drove where Gerald was held in lieu of cash bail on the arrest $86.00 warrants. Detective (Miranda Frank his Miranda informed Gerald of rights 1612, 16 L.Ed.2d Arizona, 436, 444, U.S. 86 S.Ct. (1966)), whereupon Gerald indicated that he understood waiver, signed witnessed Detective rights. He a those Bolis, police. Investigator agreed to talk to Frank and outstanding initially focused on the Although the discussion tickets, eventually told Gerald about traffic Detective Frank any suspect. he Gerald denied Matusz murder and that was involvement, his different stories about where- offered two Thirteenth, evening August and said he on the abouts they The officers told him did not believe cooperate. wanted in the story. deny continued to his involvement his Gerald police next hours while the burglary and murder for the two questioning. During this time Gerald was persisted their officer), police go (accompanied allowed to the bathroom leave, however, dinner, soda; drink he was not free to eat contempt-of- theory he was under arrest for on the During awaiting admission bail. court warrants officers, time, Gerald showed no according police to the this drugs. He neither asked signs of intoxication or influence of During requested questioning cease. attorney for an nor Bolis, Investigator Gerald indicated “casual conversation” with *12 drugs he an athlete and he did not use because was body. drugs ruin his a concern that would harbored agreed questioning, Gerald approximately After two hours of examination, the whereupon Bolis left polygraph to a to submit During Bolis’s absence qualified room to find a examiner. way in such a legs his extended and crossed sat with Gerald design on the to see the tread Detective Frank was able consisted of a Part of the tread suspect’s sneakers. sole on Paul circular bruises found design to the concentric similar take a closer Frank asked if he could forehead. When Matusz’s off. The sneakers, agreed and took them the Gerald look at desk, and he and Gerald put the sneakers on the both detective spots on the a few red look at them. There were took a close were, spots the red When asked what top of the sneakers. pointed out Detective Frank said that he did not know. Gerald design the bruises on Paul similarity the tread and the between “Well, nose, I forehead, face, replied, and Gerald Matusz’s many pair wonder how of sneakers like that Converse made.” responded probably Frank that Converse thou- Detective made Investigator brought the sands. Martella into room set of (sheets containing negative-size prints pho- sheets” “contact tographs) depicting patterned the on bruises Paul Matusz. glass, gave Frank and defendant his magnifying Martella compared photographs and all three examined and with the great sneakers. Gerald did so with interest. Frank Detective keep going then told Gerald he was the sneakers as evidence.
Investigator George to the Bolis returned detective bureau. Dix, mayor Jersey Trooper, the town’s and a retired New State Dix, agreed polygraph had to administer the examination. who - municipal building meeting, was for a town council initially did not to test he had him want Gerald because known years daughter been for had Gerald’s football coach. Dix’s high together, and Gerald were friends and had attended school Dix every Saturday games. saw Gerald at football As before, recently year as a Dix had written Gerald a letter of taking he Dix Mayor recommendation. As was Gerald to exam, polygraph wearing Bolis noticed that Gerald was not any shoes. Gerald indicated that some new evidence had been found, pattern and that his on sneakers matched the bruises on the deceased. examination, administering polygraph Mayor
Prior to Dix, hoped “pass,” who that he admitted Gerald would stressed exam, that Gerald did have to to the and in fact not submit told involved, any way Gerald that if he was in he not take should said he pass the test. Gerald involved could form, gave rights signed. Dix he test. Gerald which read and completed, ninety The test lasted minutes. it was about When detectives, results, awaiting Dix informed the who were *13 opinion being denying his Gerald truthful burglary-murder. involvement in the Detective Frank Mayor Dix polygraph, informed Gerald of the results of the murder, if Dix told Gerald that he did not he commit had say responded by saying better who did. Gerald he wanted to out,” “straighten thing speak the whole and asked to with Chief Peterson, who, Ralph happened, of Police it was also was in the building meeting. for the town council had
Peterson and Gerald been friends since Gerald was nine years They or ten had primarily through old. known each other youth organization athletic by a started Peterson and known as (now Boys” League) “Pete’s Pleasantville Police Athletic help keep youngsters Pleasantville out of trouble. Chief Peter- family family socially. son’s also saw the Gerald Detective Frank told Chief Peterson that Gerald wanted to speak him with and that Gerald in the was involved Matusz alone, matter. Chief Peterson and Gerald went into an office he where Gerald said that had driven Chief Peterson’s house couple a of times since the crime and had tried to him tell what happened, but had lost his nerve. Chief Peterson recalled having couple seen his Gerald drive home of afternoons previously, men when both waved. Chief Peterson asked Ger- involved, said, ald whether he was and Gerald “I was there.” Realizing confess, suspect was about to the Chief stopped Mayor Gerald and asked Dix to come into the office as arrived, a witness. Once Dix Chief Peterson advised Gerald his Miranda rights, whereupon gave Gerald a statement. he, Walker,
Gerald said that Eddie and John Bland had house, intending entered the Matusz steal television set they previously had seen from outside the house. Gerald woman, striking couple “had” the and admitted her a of times. (Paul), younger Walker had the man while Bland aroused the (John) younger giving old man from bed. The man was Walker trouble, a lot of so Gerald and Bland went to assist Walker. hands, They younger him beat the man with their then left woman, alone. Gerald went back to the and Bland returned cane, lamp the old man. Bland the old man with a and a beat “just or both. Gerald said that off” on the Walker went man, him, younger hitting trophy, punching him with a *14 throwing a television set on his face. also Gerald stated that way house, stepped younger on his out of the he on the man. asked, mean, you you stepped Peterson do on Chief “What him? you stomp hesitating, replied Did the man?” After Gerald that him, face, step put he did on did his foot in the man’s but did stomp began telling not on him. He then the Chief where were, Peterson, by very upset, television sets but now did not any Gerald, going bring want to hear more. He told “I’m to cooperate the other fellows in. You them with and [detectives] your tell them all involvement.” The conversation between the Chief and then contin- Gerald Gerald, personal crying ued on a level. who was remorseful — sobbing during the confession—said he did not know what gotten During had into him. the discussion the Chief noticed eyes “funny,” appeared high that looked he Gerald’s to be tired, slept and tired. Gerald said that he was that he had not crime, since, high since the he had been ever and that he drugs day, August had taken earlier that Sixteenth. Chief Peterson turned Gerald over to Detective Frank and Bolis, Investigator assuring them that would direct Gerald them to the The location of the television sets. Chief also Frank, outside, waiting informed who was that Gerald needed Frank,,who accompanied him use bathroom. Gerald told prints you to the bathroom: “I can see the sneaker have there, get you happened.” I’ll me. When we back tell what Investigator they taped Bolis indicated that wanted a state- questions ment. said he would answer all their Gerald but give taped a would statement until he had retained an attorney. attorney, He said that once he had retained an he attorney cooperate give tell the of his would desire questioning, statement. Bolis and Frank offered to cease the no, talking he but Gerald said would feel better about it. testimony suppression hearings trial and is in conflict on whether Gerald was then advised of his Miranda rights did, point, give a fourth time. He at that a similar but burglary. again more detailed oral account of the Gerald assisting beating admitted Paul accidentally Matusz and stepping couple on him running of times while around house. *15 confession,
Based on police Gerald’s Pleasantville and investi- gators from the Bland, Prosecutor’s Office arrested John whose events, statement recounted the same but with minor varia- after, reported murder, tions. Bland also day that one the Gerald and thought told Walker Bland that he he had killed Paul he “stomped Matusz because had him real bad.” Eddie Walker, who days murder, had turned sixteen fewa before the fled to Canada and Florida. He surrendered to the Pleasant- ville Police on pretrial October 1982. Walker’s statement implicate did not defendant.
II On December an Atlantic County Jury Grand re turned charging conspiracy an indictment with Gerald to com second-degree burglary, contrary mit provisions to the of N.J.S.A. (count one); 2 and second-degree C:5 — 2 N.J.S.A. 2C:18—2 N.J.S.A, burglary, contrary provisions (count the to 2C:18-2 two); conspiracy Matusz, Matusz, to rob John Paul and Lottie Wilson, provisions contrary to the 2C:5-2 N.J.S.A. and N.J.S.A. (count three); 2 C:15 — 1 second-degree three counts of rob bery victims, of the same to contrary provisions of N.J.S.A. 2C:15-1(a)(1)(counts four, five, six); and three counts sec aggravated victims, ond-degree contrary assault on same provisions 2C:12-1(b)(1) (counts seven, eight, of N.J.S.A. nine); and felony Matusz, murder of contrary Paul to the (count provisions 2C:11-3(a)(3) eleven); knowing N.J.S.A. and Matusz, purposeful or contrary murder Paul provi 2C:11-3(a)(1) 2C:11-3(a)(2) sions of (count N.J.S.A. or N.J.S.A. thirteen). charged The indictment also John Bland with the Walker, same crimes. Jurisdiction over Edward who was juvenile, juvenile Court, was from Superior waived court to charged he too with those same crimes. gave timely written notice that it would seek to State 2C:11-3(c):
prove aggravating three factors under N.J.S.A. first, purposefully knowingly grave defendant or created a risk person during of death to another in addition to the victim ((4)(b)); second, commission of the murder the murder was vile, horrible, wantonly ((4)(c)); outrageously or or inhuman third, during of, the offense was committed the commission or commit, attempt flight attempt after to commit or commis assault, arson, robbery, burglary, kidnapping sion of sexual (felony-murder). ((4)(g)), making capital thus this a case. First, pretrial
Several motions were made in late 1983. pretrial court denied a motion to close Gerald Bland hearings press coverage public prevent from and the order to prospective jurors being by exposure from tainted to inadmissi- through press. ble evidence *16 challenging legality Gerald also filed motions of his seeking suppress arrest and his oral statements both and custody. joined evidence seized while he Bland in the was suppression hearings motions. Those a were conducted over witnesses, period. primari- thirteen two-month State called officers, ly police corresponded whose recitations of the events with the version described above. Gerald and Bland testified as well. August 16, 1982,
Gerald said that when he was arrested on there was no discussion of for the traffic tickets. He bail during interrogation, Investigator claimed that Bolis con- stantly him him threatened and called foul names. He also drugs claimed that he was under the influence of alcohol and during questioning, and that he had asked the officers if he rest, “normal,” they could or come when he was back but taking drugs refused. Gerald contended that he had been (cocaine heroin) (three drinking day pints and and all to four of six-, eight-, twelve-packs and Southern Comfort three to four beer). of He also related that he had a in his hand beer when cross-examination, he was arrested at his front door. On Gerald quantity admitted that he had been taking drugs that of month, alcohol and for about but that he claimed was not accustomed to it he had and that stumbled a lot. He conceded extent, that he was in of his control faculties to a certain that capable answering questions extent, he was to a certain that (he he knew he could for an attorney ask later said that he did request), make such a he never that questioning asked cease.
Concerning rights, waiver his said that Gerald Detec- him, tive Frank sign it, threw the Miranda card at told him to truth, indicated if told him go he he could home. Moreover, said Gerald that he did not read the card. he claimed once, attorney to have asked for an more than but that Detec- Frank if tive told him Gerald he told him wanted what know, lawyer. he would not being need Gerald did not recall rights by Mayor informed of his Dix or Chief Peterson. In arguing against motions, and Bland’s Gerald’s various State asserted that arrest Gerald’s and detention were valid Bruzzese, (1983), den., under State v. cert. 465 U.S. (1984), 104 S.Ct. L.Ed.2d 695 and that defend properly ant’s sneakers had been seized as incident to his arrest. The mentally State further contended that Gerald alert, rights cognizant them, was informed his and was voluntarily rights. responded those waived The defense illegal probable that the arrest was because of the absence cause, suppressed. wherefore the fruits of the arrest should be Further, Gerald ill police, contended that treatment coupled intoxication, with defendant’s rendered the confession *17 involuntary. invalid
The against trial court and ruled both Gerald Bland on all motions. The court that fell found Gerald’s arrest well within ruling the Bruzzese further and determined that defendant had rights voluntarily been informed of his and them. Al- waived though acknowledged might appear court that it that there overreaching had been police some Chief when Peterson cooperate to and to tell the that it would be best told Gerald Chief, everything had told the the court that Gerald detectives totality of circumstances demonstrated ruled overborne, especially free had not been because Gerald’s will statement, giving a Gerald refused to make immediately after determined that taped. court further one would be that his oral statement was some- defendant’s erroneous belief damaging taped than a statement was less written how addition, the court found that the defendant irrelevant. attorney. Finally, concluded that asked for an the court never talk, that Gerald wanted to and that the the evidence showed police the sneakers after observance of the tread seizure of design as incident to the arrest. was authorized penalty death as uncon- also moved to strike the law
Gerald grounds; federal and state to secure an stitutional on both hearing disproportionality of sen- evidentiary on the issue of tencing; grand jury consider the evidence of to have crimes; grand require murder and not of the lesser to that the existed; aggravating to jury determine whether the factors hearing purpose determining evidentiary an have death-qualified jury unrepresentative impar- or not whether a juries guilt (conviction-prone); separate to tial obtain prosecution on the sentencing phases; and to foreclose the equal-pro- of the grounds that it was selective and violation guarantee. The trial court denied all motions. tection accepted plea arrange- March the trial court On Although the details ment the State and John Bland. between unclear, promised agreement are somewhat the State to imprisonment in return for recommend a sentence of life charge in consid- guilty plea felony on the murder Bland’s testify against agreement eration of Bland's Gerald 2, 1984, pleas April trial. On Edward Walker entered latter’s guilty burglary robbery of the three victims. The dismissed the balance of the indictment and recommended State imprisonment sixteen-year thirty-five-year term of with a ineligibility. agreed testify too period parole Walker *18 against Gerald. Neither co-defendant had been sentenced at the time of Gerald’s trial.
The State offered defendant a recommended term of life imprisonment in return a guilty plea to felony-murder, rejected. which During guilt trial, Gerald the phase two-week twenty-four witnesses, State called including both Bland and Walker. Walker testified that Gerald and he beat Paul Matusz, unconscious, Gerald that knocked Paul and that Gerald continued According Walker, thereafter to strike the victim. when he tried remove new color television set in the room, living the old set on it console which sat fell onto over Paul’s face. When Walker asked Gerald whether he should pick television, up the console replied, Gerald “leave it there.” Walker, On cross-examination pretrial whose statement did not implicate Gerald, admitted he had lied that statement Gerald, because he did not want to “snitch” on he because exculpate wanted to himself. Bland testified before enter- house, ing Walker, “you worry Gerald don’t told have to anything physical. about will I take care that.” Both Bland and Walker large quanti- testified that all three had consumed drugs day ties alcohol and on the murder.
Both the Medical Examiner and a State Police forensic chem- ist patterned testified that the Paul bruises on Matusz’s face— design concentric circles—were consistent on with tread Gerald’s soles of sneakers. The forensic chemist further patterned testified that the bruises were inconsistent with the design evidence, tread on other belong- sneakers admitted into ing addition, to the co-defendants. the Medical Examiner stated bruises could not have caused been someone face; rather, simply stepping once on Paul’s Dr. Jason distin- guished inflicted separate footprints, signifi- four each with a cant amount force behind it. presented any witnesses, rely-
Defendant neither testified nor ing solely on cross-examination of the State’s witnesses. trial judgment court denied defendant’s motion for dismissal *19 acquittal conspiracy of on the third to rob—and for a count—
judgment acquittal purposeful of knowing of murder. jury found guilty conspiracy defendant of to commit (count burglary one); (count two); burglary conspiracy to com- (count robbery three); mit (counts four, three counts robbery five, six); and aggravated two counts of assault on Paul (counts nine); Matusz and Lottie eight felony Wilson and mur- (count eleven); purposeful (count der and knowing murder thirteen). acquitted It count, Gerald on the charging seventh aggravated an assault on John Matusz. sentencing phase, light
At the acquittal on the count, seventh aggravating (4)(b) State withdrew factor (creating grave person risk of death to a other than the victim), sought and prove aggravating (4)(c) (out- to factors rageously murder), (murder wantonly (4)(g) and vile during and wit, felony, robbery). sought The defense to establish the following mitigating (5)(a) (extreme circumstances: mental or disturbance); (5)(c) (5)(d) emotional (age); (impairment capac- ity appreciate wrongfulness of conduct or conform conduct requirements law); (5)(f) (no significant history prior (5)(h) criminal activity); (any and other factor that is relevant to the defendant’s character or record or to the circumstances of offense). Jason,
The State called two witnesses. Dr. the Medical Examiner, provided testimony establishing aggra- directed at vating (4)(c), Investigator factor and Bolis testified to the robbery and felony-murder confession to establish factor. (4)(c). The court denied a defense motion to strike factor The defense called six psychiatrist diagnosed witnesses. One severely Gerald depressed drug-dependent. and A second psychiatrist diagnosis furnished a personality severe disorder drug and addiction. He also offered the view that Gerald’s preoccupation obsessive drugs with the need for either ren- dered him unable to impaired control his behavior or his control. An anthropology sociology professor testified about the syndrome” “failure correspondent depression and alcohol and drug dependence in poor urban subcultures. testified,
Defendant expressing his sorrow for what had happened to the family Matusz and to his family. own On cross-examination, he admitted that punched he Paul Matusz a few times but stomping denied ever him. He also denied making certain statements to police. Two of Gerald’s testified, sisters describing family life, their the effect that their Gerald, father’s death had had on and defendant’s use of alcohol drugs. charged The court jury found, that if it beyond doubt, a reasonable any mitigating factor did not outweigh any aggravating factors, factor or the defendant *20 would be sentenced to death. The court also charged the jury in reaching that its verdict it was not to any bias, consider prejudice, or sympathy. jury
The returned finding a verdict both aggravating factors beyond a reasonable doubt. It also determined that Gerald was suffering from extreme mental or disturbance; emotional that capacity his appreciate wrongfulness the of his conduct or conform his requirements conduct to the of the law was im- paired; and that he significant had no history prior criminal activity. jury The did not find that age defendant’s was a mitigating Although factor. the verdict form indicates that the jury did mitigating (5)(h) find (any factor other factor relevant to the defendant’s character or record or the circumstances of offense), the factor, it is not clear what if any, was considered. jury The further mitigating found that the factors neither outweighed the aggravating they factors nor were equal weight. The court sentenced Gerald to death.
III
Several
by
issues raised
defendant have
by
been resolved
our
decisions in
Biegenwald,
(1987),
State v.
and State
Ramseur,
(1987).
ment se nor New N.J.S.A. (the Act), 2C:11-3(c) prohibition against the cruel violates Constitution, in punishment contained the U.S. amend unusual I, XIV, 12 of paragraph ments and in Article the VIH New Ramseur, Jersey of 1947. See supra, Constitution N.J. at 166-97. court, compliance statutory .provi
The trial with the force, jury phase the penalty sions then instructed the totality mitigating determine whether the factors out equalled totality of weighed aggravating the the factors beyond charge requires a reasonable doubt. reversal. charge finding given, aggravating a that the Under the equipoise factors mitigating were in would have resulted in a sentence, proscribed by supra, death a result Biegenwald, requirement aggra Nor is that the Biegenwald’s N.J. at 62. vating outweigh mitigating beyond a factors the factors reason here, by finding, aggravating satisfied able doubt a that the equal outweighed by mitigating factors neither to nor were Biegenwald: factors. As we stated in phrasing disadvantageous is more to the believe [W]e question suggested logical defendant than is wherein the difference analysis a results where factors are “in It is not substantial very equipoise.” juror’s change in a mind that is to transform must find, required “you beyond outweighed aggravating factors are doubt, reasonable mitigating factors” find, doubt, must reasonable “you beyond mitigating outweigh aggravating factors factors.” at 61.] [Id.
Thus, concedes, specific finding the as the State absence of a aggravating outweigh mitigating that the factors factors beyond requires of a reasonable vacation the death doubt hearing a resentencing sentence and to determine whether the penalty imposed. death should be
Defendant contends that the further Act unconstitution ally promotes sentencing felony-murder irrational because can aggravating capital murder, either considered as an factor to 2C:11-3(c)(4)(g), degree, or a homicide of lesser N.J.S.A. 2C:11-3(a)(3), thirty years punishable N.J.S.A. a term of
65
imprisonment.
rejected
argument
Ramseur,
life
We
in
concluding
(c)(4)(g) “unquestionably
that Section
constitution
(citing
State,
al.” 106
at 189-90 n. 21
N.J.
Calhoun v.
297 Md.
563, 625-26,
45,
(1983),
den.,
993,
468 A .2d
75
466
cert.
U.S.
104
2374,
(1984)).
S.Ct.
In a like
we
that aggravating
observed Ramseur
(4)(c)
outrageously
vile,
factor
“murder
wantonly
or
—the
torture,
or inhuman in that
depravity
horrible
it involved
mind,
aggravated battery
or an
to the victim”—was “trouble
vagueness.”
some because of its obvious
Torture or to the victim shall be found if the defendant battery psychological intended to and did in fact severe or eause, cause, physical pain suffering to the to the either death, victim victim’s measured prior "severity” or the duration of the or a combination of intensity pain, pain, greed, revenge, both. Where the murder was not product envy, another of those emotions associated with and served no murder, ordinarily killing, for the defendant his the court shall instruct purpose beyond pleasure *22 jury meaning on the in this context. For the defendant depravity specific enjoyment just who killed for the of it, because the victim to be in the happened just or for no reason at area, all, kill, must be able to reserve its most society extreme sanction. (footnotes omitted).] [Id. at 211 Ramseur, opinion
Without the benefit of our
introductory portion
trial court in this case first construed the
(c)(4)(c)
requirement independent
of Section
as a
of the second
Second,
portion.
improperly
the court
defined torture and
aggravated battery to
on
physical
focus
the state of mind and
Third,
experiences of the
erroneously
victim.
the court
defined
depravity
complete
of mind as “a
dignity
indifference to human
disregard
and total and senseless
for human life.” The State
charge
improper
concedes that
under the standard
However,
stated
disagree
above.
the defendant and the State
produced
on whether the evidence
was sufficient to sustain a
jury finding that this factor existed even under the Ramseur
definitions. Defendant contends that the evidence did not dem
purposeful
pain
death,
onstrate a
infliction of
addition to
aggravated
therefore there was no torture or
battery.
Further,
mind,”
argues
“depravity
defendant
as defined
Ramseur,
proven
cannot be
because the murder was not
product
“greed,
anger
motiveless but rather was the
the victim’s resistance.” The State counters that the extensive
beating
ness of the
after the victim was unconscious evidenced
the fact that defendant beat the victim “for no reason other
joy
than the
of it or
because
victim was there.” The
“depravity”
provided
designed
definition
in Ramseur was
purpose
isolate those for whom the murder “served no
for the
beyond
pleasure
killing.”
defendant
his
67 to and did cause finding a that the defendant intended sustain pain suffering or to the victim physical psychological or “severe death.” Ibid. prior to the victim’s Ramseur, jury acknowledges that under the
Defendant next appropriate specific finding that “death is an need not make a However, at 316 n. 80. defendant punishment.” 106 N.J. jury’s responsibility of for its argues further that the sense prejudiced that it defendant’s in this case was so diluted verdict and, appropriate, if on sentenc- right to a fair trial. On remand court should instruct the ing proceedings, after those the trial II, opinion Bey supra, in in with this Court’s jury accordance 112 at 161-164. N.J. concedes, on federal and rejected have both
As defendant we process the grounds argument that constitutional state jury denies the defendant a fair qualifying” a “death Ramseur, at 248-54 supra, 106 N.J. impartial panel. See McCree, 90 S.Ct. (citing Lockhart v. U.S. (1986)). L.Ed.2d re argues fundamental fairness
Finally, defendant opening to make the initial the defendant be allowed quires that phase of during penalty the final summation statement and Ramseur, supra, in rejected argument capital a trial. We II, Bey reaffirmed that conclusion at 318 n. 81 and again today. 183-184 as we do supra, 112 N.J. at by defendant was ad argument raised An additional II. Defendant contends recently by Bey this Court dressed jury on “how improperly court instructed that the trial [it] mitigating weigh aggravating and collectively should charged jury that it “must unani first factors.” court beyond a reasonable proven has mously agree that the State (Emphasis aggravating factor.” existence of an doubt the factors, mitigating how added). Concerning the existence ever, jury the court instructed mitigating coming with evidence of forward defendant has the burden [t]he mitigating factors beyond The defendant is not to prove
factors. required obligated the defendant However, reasonable doubt. before place you alleges the factors to exist. credible evidence of which he It is toup you reject depending these factors evaluation of the defend- accept upon your factors, your aggravating the situation evidence. Unlike with verdict ant’s unanimous, you any mitigating does not have to be one If finds factor exists, appropriate space check on the verdict sheet. “Yes" none If sheet, you find, mitigating your “No" next on so cheek verdict factor aggravating If a reasonable that an have found doubt factor you beyond mitigating also factors find that no factors then exist, exist, make the you markings on no verdict sheet and further. That will appropriate your proceed verdict in the case and duties will be an end. return the your your Simply *24 signature. verdict Court with sheet to the in your mind, foreperson’s Keep mitigating that because one or more of finds that a however, merely factor you mitigating all of the exists, this does not find that factor exists. require you mitigating eight find that a factor exists and If, four do not you example, mitigating so consider the factor in their find, then the four deliberations. may eight mitigating who the found that the factor does not exist However, should mitigating not consider that factor in their deliberations. [Emphasis added.] II, charge complies stated in Bey requirements with the alia, inter concluded, jury
wherein the must we that be unani the finding aggravating mous existence of an factor or N.J. unanimity suggests factors. 112 at 159. A “lack that beyond the factor has been a not established reasonable doubt Id. at required 3(c)(2)(a).'' N.J.S.A. by 548 .2d A 2C:11— contrast, 887. “the defendant ‘the burden of bears ” factor,’ producing evidence any mitigating and does not proving Id. at bear the the of that burden of existence factor. N.J.S.A, added) (emphasis (quoting 2C:11-3(c)(2)(a)). 160 We legislative concluded that jurors the intent the need factor, unanimously mitigating not find the existence of a but long relating juror mitigating as one factor to the defendant [a]s perceives any outweighed or to the crime is not a reasonable doubt the beyond aggravating jury must not sentence the defendant to death. Each factors, juror, mitigating should determine the existence of therefore, individually aggravating outweigh factors and then decide whether the individually mitigating a factors reasonable doubt. after such beyond Only independent weighing jurors juror agreement of all each unanimous lead to the may of the death imposition penalty. (citation omitted),] [Id. at 162
69 charge given We conclude that in this case was keeping requirements proper. with II’s and therefore Bey
IV question turn now to a that has been neither We argued by parties, raised nor but one that nevertheless importance just demands consideration because of its to a appeal. Supreme of this As the South resolution Carolina declared, involved, penalty has it Court “where death is any duty of this Court to examine the record for errors affecting rights accused, though the substantial even ground appeal.” Taylor, 330, 331, made 213 State S. C. (1948); Biegenwald, supra, 2d 289 see also 106 S.E. N.J. (“In proceeding imperative no is it more to be assured that cases”); Ramseur, [capital] the outcome is fair than in cf. (in case, supra, capital at 260 considered N.J. Court sua sponte plain juror); error in whether there was voir dire (“while Biegenwald, supra, 106 at 53 defendant did not N.J. appeal, raise the issue either at trial or on we find that the trial sentencing proceeding constituted court’s instructions consideration plain error of a nature to warrant our sua (“where Mount, (1959) life sponte.”)) State v. stake, in the interests of is at this court does not hesitate *25 reverse the justice plain to invoke the error rule and to where impregnated having the likelihood of trial errors were with (citation rights harmed the substantial of the defendant.” omitted)). hold, grounds, on state constitutional that a We causing purposely knowingly defendant who is convicted or bodily injury resulting in death” under 2C:11- “serious N.J.S.A. 3(a)(1) (2), opposed to one is and or either of them—as who knowingly causing death under those purposely convicted of subjected penalty. to the death provisions may same not be — specify of the jury the in this case did not which Because of, and because it foregoing offenses defendant was convicted record, determined possible, jury is on this that the could have purpose knowledge to cause that the defendant had 70 bodily injury death,
serious but not we conclude that judgment of conviction on the thirteenth count must be re- versed and the cause remanded for retrial. considered, rejected,
We have a result that modify would judgment so much of the on the thirteenth count as declares guilty capital murder, defendant permitting the conviction remanding of murder to stand and pro- cause for further ceedings to determine death-eligibility, defendant’s to be fol- lowed, found, if eligibility sentencing a new proceeding. rejected We have that outcome because it would in effect be asking jury a second to accept indeed, to be bound — —the findings jury of the first guess but then at precisely what the jury first piecemeal meant. Such a approach guilt-innocence unacceptable general as a proposition in any prose- criminal cution. repeat We our principle, commitment to the albeit expressed context, in a different that 12 reach “[t]he requirement a unanimous verdict is persons not met unless through those 12 reach their consensus deliberations which are the common enough jurors of all of them. It is not 12 experience reach a unanimous juror verdict if 1 has not had the benefit of the deliberations of the other 11. jury Deliberations with the provide to review the evidence in opportunity light of the of each member. perception memory Equally important shaping a member’s are the reactions and viewpoint personal interactions juror individual any others to his or her attempts persuade accept viewpoint. juror The result is a balance decision-making if a new easily enters the upset after the 11 others process have commenced deliberations. The elements of number and combine to form an essential unanimity element of in the unity verdict. this we mean that By a defendant not be convicted may except by
jurors argument together who have heard all the evidence and and who have deliberated to unanimity.” (1979) (quoting v. [State Trent, 17 Cal.3d People Collins, 552 P.2d (1976)).] 687, 693, 742, 746, 131 Cal.Rptr. Ingenito, (1981) See also State v. (“[The] 87 N.J. duties jury inherent in the function determining include the facts in case, considering all of the relevant admissible evidence bearing upon charges, evaluating credibility of witness es, assessing weight evidence, and worth of deciding guilt the ultimate or innocence of a in light defendant
71 evidence.”), underlying quoted Ragland, 105 State v. N.J. (1986). 203
A pertinent part, provides In N.J.S.A. 2C:ll-3 follows: * * * a. homicide constitutes murder when: [Criminal (1) injury resulting The actor causes death or serious in death; purposely bodily or (2) knowingly injury resulting The actor causes death or serious in death bodily a.(l) (2) under or who committed the c. convicted subsection Any person homicidal act his own conduct or who as an accomplice procured anything commission of the offense or by payment promise payment, value shall be sentenced accordance with the Act’s pecuniary [in capital punish- * * ment *. provisions] death-penalty clearly exposes penal- statute to the death ty knowingly bodily injury purposely one who causes serious Ramseur, Handler, dissenting in resulting in death. Justice aspect “extraordinary found this of the Act indicative of the potentially subject capital of the class of murderers breadth” 387; II, punishment. Bey supra, at also N.J. N.J. see (Handler, J., (Act dissenting) require “does not even kill”). capital support intended to of his defendant have Ramseur, conclusion in Justice Handler looked to the criminal prior adoption Jersey of the New Code law as it existed to the (the Code) in 1978. Under the earlier of Criminal Justice statute, degree, murder was of either the first second first-degree subject those murder were convicted capital punishment. at 387-88. Justice Handler Id. N.J. statute, degree first murders under the former summarized 2A:113-2, accomplished by poi- as follows: “murders N.J.S.A. wait, during of certain lying son or murders the course officer,” named felonies and the murder of a law enforcement proved premedita- and those other murders which the State tion, deliberation, plan. Id. at 388 and willful execution (1961)). Anderson, All (citing 496-97 State v. presumptively degree, the second other murders were *27 72 Ibid. Ramseur non-capital
were therefore crimes. dissent “includes, although the current Act capital noted mur der, solely death that results from the intentional infliction of bodily harm[,] serious clear was under the former law that [i]t bodily the intent to do serious harm was insufficient for a murder conviction.” Id. 106 degree N.J. (citing first at 388-89 Thomas, Madden, v. (1978); State N.J. State v. N.J. 76 344 61 Anderson, (1972); supra, State 377 35 N.J. at 497; State v. Wynn, 21 N.J. 264 (1956)).
The Ramseur
majority responded
to the dissent’s “over-
argument
only by agreeing
breadth”
that an intent to inflict
bodily
serious
harm
degree
was not sufficient to sustain a first
statute,
murder
conviction under the former
also
ac-
but
knowledging
may similarly
support
that “it
be insufficient to
a
capital
today
constitutionally required
sentence
because of the
culpability
regarding
capital
standards
defendant’s intent to
Support
kill.” 106
at 194.
for
that statement was found
Florida,
Supreme
in the
Court’s decision in Enmund v.
458
782,
3368,
(1982).
U.S.
102 S.Ct.
Enmund did not intend culpability them alike and treated the State killed; from that of the robbers who yet This killed the of those who [victims]. attributed to Enmund the culpability Eighth under Amendment. was impermissible [.Ibid.] Ramseur, quoted supra rooted Our statement analysis. proportionality How in the Enmund Court’s federal Ramseur, *28 ever, Supreme in the Court shortly after our decision Arizona, 137, 1676, S.Ct. 107 95 decided Tison v. U.S. 481 scope of En (1987), restricting L.Ed.2d 127 substantially the mund. Tison, helped ar had to defendants were brothers who cellmate, prison their father and his
range escape the from getaway car murderers. When their broke both convicted desert, flag passing a group in the decided to down down the stood in car. One of the brothers motorist to steal another car, the others armed themselves front of their disabled while assistance, family stopped in a to render lay and wait. When family road off emerged the down a dirt group the and forced lives; begged family for their highway. The father of the the “thinking reportedly said he was about defendants’ father the 140, 1679, it.” Id. at S.Ct. 107 at 95 L.Ed.2d at 133. The for to return to the car then told his sons defendants’ father defendants fulfilled that family. While the some water for family to mission, shotgunned the and his cellmate their father tried, captured were In due course defendants were death. felony-mur convicted, under Arizona’s sentenced to death 140, liability statutes. See id. S.Ct. at 107 accomplice der and 1679, 95 L.Ed.2d at 134. at Supreme Court argument before the principal
Defendants’ under the disproportionate their death sentences were was that Florida, supra, construed in Enmund v. eighth amendment as 3368, O’Con- L.Ed.2d 782, 73 1140. Justice 458 U.S. S.Ct. 102 Enmund, majority, nor, wrote for who had dissented Enmund, she wrote, narrowly. the Enmund reading decision dealt with * * * * * all distinct subsets of murders *. At one was two felony pole actor in an to kill scene, minor armed not on the who neither intended robbery, * * * was found to had mental state. Court nor have held any culpable these cases. Enmund also
that capital punishment disproportional dealt with the other case: the murderer who clearly polar felony killed, actually to kill. or intended attempted kill, [Tison, supra, 95 L.Ed.2d at U.S. S.Ct. at at 149-150, 107 1684, 139.] Enmund, to the Tison According open majority, left “the participation major case intermediate defendant whose and whose mental state is one of reckless indifference to the of human life.” Id. at 152, S.Ct. at value 95 L.Ed.2d majority argued 141. The at “substantial recent legislative penalty authorization of the death crime of felony regardless finding murder of a of an absence * * * suggests society reject intent to kill our does not penalty grossly death excessive under these circumstances.” S.Ct. Addressing, at Id. at 142. L.Ed.2d finally, not, they defendants’ contention did Enmund's terms, “kill, kill, kill,” attempt or intend the Court stated: * * * given A narrow focus on whether defendant “intend- question highly distinguish- ed to means of kill,” however, is unsatisfactory definitively ing dangerous the most intend *29 and murderers. who and culpable to, Many kill are not liable at who all —those act in self-defense or with do, criminally * * * justification other other or excuse. On the some nonintentional hand, among dangerous be the most murderers inhumane of all —the may person caring tortures another victim or the who not whether the lives or robber dies, who shoots someone in the course of the to the indifferent fact robbery, utterly killing that the desire to rob have the the victim may unintended consequence taking as well as the victim’s This reckless indifference to the value property. shocking of human life be bit as to the moral sense an “intent every as to may * * * disregard kill.” hold that the reckless for human life in [W]e implicit knowingly engaging grave in criminal activities known to a risk of death carry highly a mental a mental state that be taken into state, represents culpable may making sentencing judgment in a when account that conduct causes its capital though also natural, inevitable, not lethal result. at 157-158, 107 S.Ct. at
[Id. 1687-88, L.Ed.2d 95 at 144.] participation Because the Tisons’ in the crime was “substantial” every “actively kidnap- —each was in the involved element of ping-robbery physically present during the entire se- murder,” id. at quence activity culminating in criminal the 157, 1688, 95 L.Ed.2d at 144—and because actual S.Ct. at escape kidnapping involved a “reckless indifference armed life,” did to the Court held that the Tisons’ conduct human at proscription 157, 107 the of Enmund. Id. fall within S.Ct. at 1688, rejected 145. The Tison thus 95 L.Ed.2d at Court requirement majority kill” on of this Court “intent to which death-eligible relied to limit the Ramseur had breadth 2C:11-3. class under N.J.S.A. clear, princi proportionality now as a
It is
matter
federal
ples,
capital punishment may
imposed
on one who
purpose
knowledge
a
commits
homicide without
result,
least
that the
death will
at
to
extent
defendant’s
“recklessly
to hu
conduct can be characterized as
indifferent
(or
appears
so
life.” Defendant’s conduct
this case
a
man
find)
category
fall
of noninten
jury could
to
within
Tison
indifference to human
tional murders that manifest
reckless
person
caring
tortures
another not
life: “the
who
[or beats]
*
* *
dies,
utterly
the victim lives or
or the robber
whether
may
to rob
have the
indifferent
the fact that the desire
* *
killing
consequence
157,
at
Id.
107 S.Ct.
unintended
1688,
Indeed,
qualifies
also
at
B
Ramseur,
acknowledged
appropriate
it is
to
As we
in
only under the federal
analyze
penalty
statute not
death
under
constitution but
state-constitutional standards as well.
Supreme
The
death for defendant had no who intent victim, kill his or her but rather intended inflict serious bodily injury, though injury even did in result in fact death. purposes analysis, For this we terms use the “intend” provided collectively “intent” refer to both mental states for statute, i.e., 2C:ll-3a(l), purpose, the murder N.J.S.A. knowledge, 2C:ll-3(a)(2), as N.J.S.A. those terms are defined 2C:2-2(b)(l) (2), respectively. N.J.S.A. aspects Supreme
We sometimes look to
of the
consti-
Court’s
establishing
analysis,
persuasive,
guidance
tutional
where
principles
Ramseur, supra,
under our state constitution. E.g.,
77 * * Georgia, supra, (citing Id. at 183 Furman v. 408 U.S. (White, J., 310, 2763, 390 concur- at at 33 L.Ed.2d at S.Ct. ring)). agreement We also record our with the Tison Court’s “[d]eeply ingrained legal in our is statement that tradition conduct, is purposeful the more serious idea that more offense, and, therefore, severely ought the more it to be at at L.Ed.2d punished.” 481 U.S. at S.Ct. Ramseur, supra, at 207-08 143. As we stated 106 N.J. predicated usually on the system of criminal laws is “[o]ur imposition In- punishment of based on the defendant’s intent. deed, ranking by degree places those our Code’s of crimes highest de- committed with intentional conduct as the crimes pun- gree crime, severely which the is most for defendant ished." initially death-penalty is relative- that the statute
We observe
terms,
First,
scope.
very
its
ly
by
its
N.J.S.A.
narrow
are
2C:ll-3(c)
application
persons
who
limited
its
those
2C:ll-3(a)(l)
(2), thereby
or
of murder under N.J.S.A.
convicted
rendering non-death-eligible those
who are convict-
defendants
Second,
2C:ll-3(a)(3).
felony
not
ed
murder under N.J.S.A.
2C:ll-3(a)(l)
(2) are
or
all murderers convicted under N.J.S.A.
legislature
punishment,
inasmuch as the
subjected
capital
scope
subjecting
of the statute
has further restricted the
(1)
penalty:
one “who
to the death
two classes of murderer
conduct,” see
homicidal act
his own
committed the
infra
92-101,
(2)
accompliceprocured the commis-
“who as an
one
payment, of
by payment
promise of
sion of the offense
* *
2C:ll-3(c). Un-
pecuniary
*.” N.J.S.A.
anything of
value
then,
impose the
provisions,
Jersey does not
der
New
these
solely
felony-mur-
those
are convicted
penalty
death
on
who
2C:ll-3(a)(3).
exception
theWith
pursuant
der
to N.J.S.A.
murder,
the statute’s
hire another to commit
those who
punishment
not
those
are
provision
capital
does
reach
who
convicted,
theory
liability under
on
of vicarious
N.J.S.A.
knowing
pursuant to
2C:2-6,
murder
N.J.S.A.
purposeful
scheme,
2C:ll-3(a)(l)
(2).
statutory
this limited
Under
felony-murder
Tison
were convicted
brothers —who
on
and ac
theories,
complice-liability
141, 107
see
U.S. at
S.Ct. at
subjected
capital
In legislature clearly rejected has the Tison conclusion acting Court’s that one who causes death while with subjected a “reckless indifference to human life” can be to 152, penalty. See id. at 107 1685, death at S.Ct. 95 L.Ed.2d at 2C:11-4(a) 141. In legislature N.J.S.A. aggra has defined manslaughter, non-capital crime, a “recklessly vated as causing] manifesting death under circumstances extreme indif Therefore, ference to human life.” opprobrious the least men imposition tal state that penalty would sustain of the death eighth under the is support amendment insufficient to even a non-capital conviction murder our under Code. It is thus apparent Jersey adopted death-penalty that New has a statute scope eighth that is in its required by narrower than is amendment. Our task here is define one of the limits of that scope under the state constitution. Ramseur,
As we stated in test to determine whether a is cruel and [ t]he unusual under Article punishment paragraph generally I, of our is that 12, Constitution same as under applied the federal Constitution. Three are First, does the inquiries required. punish ment for the crime conform with Second, standards of contemporary decency? grossly is the to the punishment offense? does the disproportionate Third, go legitimate penologi what is punishment beyond necessary accomplish any objective? Gregg Georgia, cal v. 428 U.S. 96 S.Ct. at at supra, 49 173, 2925, (1983); v. State v. Des 92 N.J. State Marets, 62, L.Ed.2d at 82 874-75; (1972). 61 N.J. 273-74 Hampton, 250, N.J. at [ 106 169.] punishment tests, If the any fails one of the three it is invalid. 584, 592, 2861, 2866, v. Georgia, See Coker 433 97 53 U.S. S.Ct. (1977) (plurality L.Ed.2d opinion). discussion,
For purposes of our we will assume that the first Ramseur, and third criteria have been satisfied. we held capital punishment se per contemporary conforms with Although decency. See 106 at 169-74. it is standards of penalty readily apparent imposition so that the of the death his her one did not intend the death of victim on who standards, with those same we need not consider conforms capital in question further. We also concluded Ramseur objectives accomplishes legitimate penological punishment at of retribution and deterrence. Id. 175-81. But see Lockett Ohio, at at supra, 438 U.S. S.Ct. L.Ed.2d (White, J., dissenting (“The concurring part part) capital lacking as punishment a deterrent those value questions extremely kill attenuated. purpose to is Whatever efficacy penalty may concerning be raised the death rages on—its to intentional murders —and that debate deterrent deterring becoming from function in individuals involved may unintentionally ventures in which death result even doubtful.”). more *33 test, namely, inquiry focuses on the second whether
Our penalty grossly disproportionate to the offense. death Ramseur, capital dispro- a punishment concluded that is not we purposeful knowing or mur- portionate penalty to the crime of made in the at 174-75. That statement was der. drastically from that context of a factual situation different murder, Ramseur presented in this case. Prior to the actual kill his victim and on than one occasion threatened to had more day having assaulted her. On the grandchildren, her as well as murder, up to his victim on street Ramseur walked times, her stabbing to her. After several began stab addi- away, only walk return to inflict Ramseur started to * * * there, I lay Tf “He told his victim as she tional wounds. ” your again going I’m kill them too.’ Id. at 162. see kids “major in the face and The victim had a number of stab wounds eight chest, including about and one-half two chest wounds suffered a deep pierced lung.” Ibid. She also inches arms, inflicted as she tried defend number of wounds on her record, a can no from her assailant. On such there herself of his victim. Sim- question that Ramseur intended the death ilarly, in Biegenwald, supra, apparent 106 N.J. it is that the victim, shooting defendant to kill intended his her the head luring her to after his house. Id. at 20. We our adhere to punishment under such belief that circumstances death is disproportionate to the crime. We are satisfied that a reached, however, different conclusion must be de- when the fendant does not intend the death of his or her victim. agree
Were concurring colleague we to with our Justice conclusion, basis, statutory-construction O’Hern’s reached on a 2C:11-3(a)(1) (2) a murder conviction under N.J.S.A. or (conscious requires that the defendant the “purpose have either object design) knowledge (practical or certainty) that death [,]” result post will there no would be need for us to pursue analysis. See, e.g., constitutional Ocean Pines Ltd. v. Borough Pleasant, Point 1,10-11 (1988); 112N.J. In Baby re M, (1988). 109 N.J. 450-51 Our discussion must therefore begin question with the of how broad is the definition purposeful knowing 2C:11-3(a)(1) murder under N.J.S.A. (2). 2C:1-14(h),
Under N.J.S.A. of an offense” “elements] (1) conduct, (2) include a combination of attendant circumstanc es, (3) Code, and/or result such conduct. Under the person guilty cannot be of an purpose offense “unless he acted ly, knowingly, recklessly negligently may require, the law respect with to each material element of the offense.” N.J.S.A. 2C:2-2(a). provides The Code “[wjhen further the law defining prescribes an offense the kind of culpability sufficient *34 of distinguishing among commission an offense without thereof, the material elements provision apply such shall all to offense, material contrary elements of the purpose unless a plainly appears.” 2C:2-2(c)(1). N.J.S.A. 2C:2-2(b),
In N.J.S.A. the Code possible defines four grades culpability of might that the respect actor have in of offense, each element of the distinguishing among the three degrees only possible elements. Our concern here is with two knowledge: culpability, namely, purpose and of (1) A acts with to the nature of his Purposely. person purposely respect object engage is his to in conduct of conduct or a result thereof if it conscious A that or to cause such a result. acts with to respect nature person purposely aware existence circumstances attendant circumstances if he is of such “designed,” he or that exist. “With “with or believes hopes they purpose,” meaning. design” or terms have same equivalent (2) Knowingly. knowingly A the nature of his acts with person respect if that conduct attendant circumstances he is aware his conduct is that or the high exist, or that such circumstances or he is aware a nature, probability knowingly their A to a result of his existence. acts with conduct person respect is if he is that it certain that his conduct will cause such a aware practically knowledge” “Knowing," have the result. “with or terms same equivalent meaning. in Turning to the definition “murder” contained N.J.S.A. 2C:11-3(a), we see that two elements are included: conduct Limiting inquiry the result of conduct. our element, 2C:11-3(a)(l) may under a latter N.J.S.A. defendant possessed he purposeful convicted of murder when or she * * * death, (b) (a) object to cause” or either the “conscious * * * bodily injury cause” result object “conscious serious ing 2C:2-2(b)(1). Similarly, death. defendant See N.J.S.A. may knowing under 2C:11- be convicted of murder N.J.S.A. 3(a)(2) (a) practically he or either that it is when she is “aware death, (b) certain his or that it conduct will cause” “aware bodily practically is certain his conduct will cause” serious resulting 2C:2-2(b)(2). legis The injury death. See N.J.S.A. injury” “bodily injury bodily lature has defined “serious as risk of death causes which creates substantial or which serious, impair disfigurement, protracted loss or permanent * * organ any bodily ment of function member or *.” 2C:11-1(b). N.J.S.A. statutory provisions for apparent pur that the
It knowing contemplate two intended poseful and murders distinct may possible results elements of the crime: actor intend (a) (b) death, bodily injury resulting to cause either “serious result in instances is the same: the death.” actual both *35 82 look,
defendant’s conduct has caused the victim’s death. We then, distinguishing possible for the feature between the two results, must, striving, give we language effect to of the See, e.g., Peper the statute as a whole. v. Princeton Univ. Bd. 55, Trustees, (1978)(“A of legisla- construction tive any part superfluous enactment that would render thereof disfavored.”); is Township Monmouth Lumber Co. v. (1952) Ocean, (“It 9 N.J. is that settled statutes should be accorded that give every construction which will effect to word expressed Legislature therein.”). by the We believe that the answer lies in the actor’s state mind at the time that the crime was committed and in the harm he or she intended to legislative may inflict. The intent clear: an actor be convict- (1) ed of purpose murder both when he or she acted with the or knowledge follow, (2) that the death victim’s would when he purpose knowledge only or she acted or with to inflict bodily injury, injury serious but the resulted in the victim’s otherwise, death. Stated is not charge it a defense to a purposeful knowing or murder that actor intended bodily injury inflict serious on the victim. In accordance with general causation, principles Code’s the actual result— design death—need not within contemplation or actor. It is sufficient purpose the actor have or knowledge bodily to cause injury. serious regard
Our conclusion in this is supported by history of 2C:11-3(a). originally enacted, N.J.S.A. As it was statute bodily resulting did not contain injury the “serious in death” language Instead, original at issue here. enactment limited the relevant definition of murder to those criminal homicides knowingly. L.1978, 95, that are purposely committed See c. 2C:11-3(a)(1) (2). date, Prior the Code’s effective this § section amended L. c. to include the § bodily injury” provision. current “serious original Because the proscription enactment included within its all murders which purpose defendant acts with the knowledge that death result, the 1979 must amendment be read to reach a class of *36 original in addition those defendants to included within Ross, See, 223, e.g., N.J.Super. v. 57 229 enactment. Evans (courts (App.Div.1959) not in should construe a statute such a * * * manner “would render amendments futile and abor- tive.”), den., (1959); 31 certif. 292 104 457 N.J. see also N.J.L.J. (1979) (an by a Judiciary article former Senator and a Senate amendment, explaining Committee aide 1979 “the include, concept expanded murder under the to in Code persons ‘purposely’ ‘knowingly’ addition to those who or cause another, ‘knowingly’ ‘purposely’ the death of those who bodily injury (emphasis cause serious which results in death.” added)); Judiciary Committee Statement 3203 Senate S. (1979) (same). Clearly purposeful knowing the crimes of and only murder not those actors intend their include who victim’s deaths, only but also those actors who intend to inflict serious bodily unintentionally Thus, death injury, and results. to be provisions, the actor convicted of murder under those need have respect no mental in actual need state result —death—but only purpose knowledge bodily act with the that serious injury result. arguments persuaded by contrary
We so well are example, in concurrence. For Jus articulated Justice O’Hern’s that the crimes of tice O’Hern observes that the conclusion in purposeful those instances knowing and murder include only bodily which the defendant intended inflict serious injury cause intending to death —conflicts with —without general definition homicide contained N.J.S.A. 2C:11-2. acknowledge exists Post 136-137. We that such conflict of that but are nevertheless satisfied that resolution discord murder, category of favors the conclusion there is such a First, rule for two reasons. it is a well-established that where conflict, general in appear to one is two statutes specific, nature the other the conflict is resolved favor precise specific the more “as a more manifestation statute legislative intent.” In Probation re: Salaries for Officers of 363, (App.Div.1978); 158 ac- County, N.J.Super. Hudson Co., Kingsley Advertising 336,
cord v. Wes Outdoor 55 N.J. (1970); Highway Dilley, ex rel. State State Comm’r Foods, Inc., 383, (1967); State v. Hotel Bar 18 N.J. (1955). general 115, 128 Hence the definition of murder at yield specific N.J.S.A. 20:11-2 should the more definition of knowing 2C:11-3(a)(1) N.J.S.A. purposeful and murder at (2). Second, it should be noted that N.J.S.A. 2C:ll-2 was part Code’s enactment. See L. originally adopted as 1978, 95, c. 2C:ll-2. 1979 amendments deleted § section, see L. c. “negligently” word from that § leaving unchanged. language at issue here The “serious 2C:ll-3(a) N.J.S.A. bodily injury” language of was added *37 amendment, L.1979, see 178, 21, was, 1979 the c. and as § it, in puts attempt Justice O’Hern enacted an to fill “gap” a Thus, amended, N.J.S.A. 2C:ll-3(a) the Code. is not recent, specific more more but and therefore control should See, e.g., Jersey over N.J.S.A. 2C:ll-2. Maressa v. New Monthly, 176, One (1982); N.J. State v. 1976 Pontiac 89 195 Firebird, N.J.Super. 168, (App.Div.1979). 168 176 addition, O’Hern of Justice looks notions “some common 138, culpability,” post understanding and “our about at of culture,” post 140, in support common at his of conclusion “is more aggravated manslaughter the of culpable crime than ** *.” Post at 138. Such putative non-capital this murder understanding” respect “common degrees of relative of provide culpability adequate cannot basis for an Justice legislature The on gradation O’Hern’s result. has decided of offenses, gradation absent conclusion that such a violated (a the state or federal expressly constitutions conclusion disa O'Hern, 139-140), post by vowed Justice see at the of wisdom See, policy legislature chosen the is not for us to decide. Bros, e.g., Aetna v. 550, (1981) Ins. Co. Gilchrist 85 N.J. 566 (“it comport is not for us to rewrite statute to without judgment may course.”); of what we consider to a wiser Township 538, (“It Bergen, White (1978) 554-55 of N. goes wisdom, sense, saying good policy without otherwise) prudence (or of a statute are matters within * * * province Legislature and not of the Court. We again any take this occasion to foreswear this illusion that court, Court, any superlegislature ‘sits as a to determine wisdom, statutory ”); or propriety Guys need of law.’ Two Harrison, Furman, (1960) (“a Inc. v. 32 N.J. from judge usurp authority personal policy would if his view deliberations.”). upon his intruded written, purpose
As the statute is all defendants convicted knowing 2C:11-3(a)(1) (2) ful murder under are N.J.S.A. exposed penalty 2C:11-3(c),provid to the death under N.J.S.A. ed they either committed the their own homicidal act conduct or hired another to commit that act. All defend such ants, including those who did not intend death of their victim, penalty potential punishment. face the death as a distinguish, punishment, purpose failure to for those who intend the death their victim from those who do not does principle violence to the basic stated above that “the more conduct, offense, and, purposeful the the more serious therefore, severely ought punished.” Supra the more it to be Tison, (quoting at at supra, 481 U.S. S.Ct. 143). 95 L.Ed. 2d at The failure to make that distinction light gross disproportionality penalties creates also assault, imposed aggravated on conviction crimes such as 2C:12-1(b)(1), aggravated manslaughter, N.J.S.A. N.J.S.A. *38 2C:11-4(a), 2C:11-3(a)(3). such, felony-murder, As N.J.S.A. capital punishment the infliction of on one does not intend who his her death of our constitutional or victim’s is a violation state Const, prohibition against punishment. cruel and unusual I, para. art. 12. 2C:12-1(b)(1), aggravated as
In the Code defines N.J.S.A. purposeful knowing or infliction of “serious sault to include 2C:11-1(b). in bodily injury” as that is defined term N.J.S.A. only serious-bodily-in The difference that crime and between a is in the jury murder such that at issue here the fact that died, the victim in the the victim latter case has while former respects, e.g., has all material nature of survived. other his respect the actor’s conduct and or her mental state in of the conduct, result the crimes are identical. differ Stated ently, purposeful knowing bodily infliction of “serious death,” resulting 2C:11-3(a), aggravated injury in is an N.J.S.A. assault from which death results. Because the result actual crimes, represents the essential difference between the two it is punish to the actor has appropriate who caused death more severely only than bodily the actor who has inflicted serious injury. disagree regard We this with Justice O’Hern’s concurring opinion wherein he concludes that such a result outrageous legisla would an almost intent” to the “ascrib[e] Post at On the contrary, ture. 138. result is entirely logical, it also in the As is well-founded law. (MPC) explained drafters Model Penal Code their commentary 211.1(2), substantially is MPC which identical § aggravated-assault statute, 2C:12-1(b)(1), to our N.J.S.A. existing law assaultive behavior more where uniformly punished seriously though death another occurs. This result obtains even survival of actually technology due the victim have been to circumstance to medical rather may than restraint the actor. two who any Thus, create identical risks persons subject do and who so with the mental state will be same different culpable ** * if one victim lives and the other dies. Code follows Model penalties [T]he existing escalating law in for behavior death of assaultive where penalty results. another II, Model Penal Code and Law Part Commentaries, [American Institute, (1985).] 211.1, comment at 189 § legislature aggravated assault, made has an such as we case, crime, second-degree have in this see 2C:12- N.J.S.A. 1(b), defendant convicted of crime a term faces imprisonment years, from ranging presump- five to ten with a See, years. tive term of seven respectively, 2C:43- N.J.S.A. 6(a)(2) 2C:44-l(f)(l)(c). and N.J.S.A. Where an actor commits an respects except offense that is identical in all material death, the victim’s it grossly disproportionate unintended subject that penalty. actor to death Because the actor’s conduct, state, mental intended result both instances are virtually identical, the victim’s fortuitous survival in one case *39 and unfortunate demise in the provide other cannot adequate an subjecting basis for one actor to imprisonment a term of executing the other. comparison
A aggravated with the crime of manslaughter is also 2C:ll-4(a), instructive. Under “[cjriminal N.J.S.A. homi aggravated cide constitutes manslaughter when the actor reck lessly causes death under manifesting circumstances extreme indifference to human pointed life.” As supra out at 78 aggravated manslaughter capital is not a offense but rather a crime degree, 2C:ll-4(e). first N.J.S.A. On conviction a defendant imprisonment faces a term of ranging from ten to ibid, thirty years, (as 172, 1), amended A. c. with a § presumptive term of twenty years. 2C:44-1(f)(1)(a)(as N.J.S.A. 172, 4). amended L. c. attempting Without to state § definitively all of the differences aggra between the crimes of manslaughter vated purposeful and the or knowing infliction of bodily injury serious resulting death, we note that the most significant difference lies in conduct, the nature of the actor’s either, which is respectively, reckless, purposeful, knowing. or beyond dispute It is that that important distinction is in terms of the severity of imposed. the sanction to be See State v. Ramseur, supra, (“our 106 N.J. at 524 2dA. 188 Code’s ranking of by degree places crimes those crimes committed with intentional highest degree crime, conduct as the which the severely punished.”). defendant is most Regardless conduct, however, the nature of the in none of the crimes at issue has the actor intentionally caused the victim’s death. instances, all three death is the unfortunate but unintended kill, result. Absent an intent to the distinction between an reckless, knowing, actor’s purposeful signifi conduct is not enough cant imposition to warrant penalty of the death where purposeful knowing, conduct is compared to a term of imprisonment Furthermore, where it is reckless. inasmuch as the intentional infliction of bodily injury serious can occur high death, without a risk of even with the justifiably actor believing occur, that death will not that actor’s state of mind
88 circumstances, that of culpable less than might, under some extreme indifference to mind exhibits “an actor whose life.” human 2C:11-3(a)(3), felony- defines the crime the Code
In N.J.S.A. murder as follows: acting more other either alone or with one or the actor, It is committed when flight engaged or or an of, commit, in the commission attempt is
persons,
committing
attempting
assault,
arson,
to commit
sexual
or
robbery,
after
burglary, kidnapping
in the
of such crime or of
course
or criminal escape,
other than
flight
causes the death of a
therefrom,
person
immediate
any person
* * *.
of the
one
participants
felony
to a
murder
which
Limiting our discussion
actions, see,
by his
another’s death
own
has caused
defendant
den.,
Smith,
N.J.Super.
(App.Div.),
43
certif.
210
v.
e.g., State
for that
(1986),
significant that a conviction
it is
Like a defendant knowing- purposely or convicted of felony-murder, a defendant resulting in has uninten- bodily injury death ly inflicting serious that con- Reprehensible as tionally taken the life of another. is, justification for the discern no rational surely duct we can that on conclusion conviction for former crimes a defendant of imprisonment, should face a term while on conviction for the latter he or she face society’s should execution. Our ultimate penalty sanction—the properly imposed death on those who —is culpable mind, act namely, with most state the purpose knowledge their victims will die. those For who act mind, culpable ie., less state with a an intent inflict bodily result, injury serious with no intention that death be the *41 by a lesser sanction is mandated our state constitution. For the murderers, class latter of as as well for all other murderers subjected who are not to the penalty they felony death —be murderers, purposeful or or knowing those murderers not capital charged with perceived murder of a because absence statutory aggravating factors, or because the murder was not conduct, committed their own or capital-murder those de a penalty-phase jury judge fendants whom or has concluded that execution not warranted —the Code should reserve its most severe short ranging sanction of death: a custodial term thirty years parole from imprisonment without to life awith NJ.S.A. 2C:11 — thirty-year parole disqualifier. 3(b).
We therefore conclude that imposition penalty the death on 3(a)(1) (2), one who is under N.J.S.A. 2C:11 — convicted them, purposeful knowing either infliction bodily injury resulting serious permissible in death is not under I, Article paragraph of our state constitution. foregoing comports Legislature’s result with the intent restoring
in penalty. At the death the time Code was 1978, capital punishment in enacted was included in its sentencing provisions. L. only passage It was c. penalty provided essence, that the death for. grafted Act a murder contemplate onto statute that did not was. capital punishment at the time it was drafted. Russo,
According legislation’s John spon- Senator chief Committee, sor and Chairman of the Judiciary Senate capital statute was legislation intended be “not as broad” as many people as states, does not in that cover in other “[i]t Capital Punish- legislation does.” of the other some [states’] Judiciary on Senate Hearings ment Act: S. Before (hereinafter (1982) Hearing). Sen- at 1 Committee Committee scope of the of the intended gave some indication ator Russo the statute contem- example, explained he For enactment. a defendant faces procedure, under which plates a two-tier having guilty only after been “found penalty proceedings death degree doubt of unanimously beyond a reasonable first Ibid, (emphasis add- murder, murder.” willful, premeditated of first ed). Further, deals with a conviction bill “[t]he * * 2; Judiciary at see also Senate degree murder Id. (1982) (“only person who to S-112 Committee Statement * * * would stand an intentional murder actually commits penalty.”). jeopardy of the death at terminology, Although understandably mistaken recently adoption of the Code hearings the the time of these murder, second-degree Senator away with first- and had done invoke, in- comments, history they are both Russo’s prior only those law supra noted under structive. As *42 subjected first-degree murder could be convicted of defendants first-degree Distinguishing features of penalty. to the death included, alia, the crime was accom- the fact that murder inter wait, premeditation, by lying proof in or plished by poison or Ramseur, deliberation, plan. su- execution of the and willful J., (citing v. (Handler, dissenting) State at 388 pra, 106 N.J. 496-97). apparent that Anderson, It is thus supra, 35 N.J. at signifi- the victim’s death was intention to cause the actor’s could be exe- determining a murderer cant factor in whether possessed only the intent to do cuted. When the defendant however, harm, he or she could be convicted bodily serious only to a term of subject and was second-degree murder distinguishing that that same persuaded are imprisonment. We important analyz- of mind—is defendant’s state feature —the ing current statute.
91
C
Having concluded that the Act is unconstitutional to the
exposes
extent that it
to
penalty
the death
some defendants
intending
so,
kill
who
without
to
turn
question
do we
to the
what
should
result
follow from that conclusion. As we have
stated,
is
duty
our
to
it
reasonably
save
statute if
is
“[i]t
susceptible to
interpretation.”
a constitutional
Right to Choose
Byrne,
287,
(1982).
v.
N.J.
inquiry
Our
focuses on
the legislature
whether
prefer
would
that the statute survive
appropriate
construction,
with an
constitutional
or
it
whether
prefer
would
that the statute
to
“succumb
constitutional infirm
Ibid.;
ities.”
Jersey
accord New
State Chamber Commerce
New Jersey
Comm’n,
Election Law
82 N.J.
Enforcement
(1980);
(1969).
Schmoll v.
We have
Creecy, 54
N.J.
legislature
no doubt that the
prefer
would
the Act be
subjected
narrowing
to a
construction that would free it from
defect,
comports
constitutional
a construction that
with the
legislature’s
in originally adopting
stated intent
the Act. See
supra at
As
85-87.
such it is incumbent
us
“engage
on
* *
‘judicial surgery’
to excise
constitutional defect
*.”
[the]
Right
Choose,
supra,
925;
450 2d
A.
accord
Ramseur, supra,
(collecting cases);
State v.
D Applying foregoing principles to the matter now before *43 us, we are from unable discern the record whether Gerald death, purposely knowingly causing was convicted of or or resulting causing bodily injury knowingly serious purposely or charges simply that of the indictment in death. Count Thirteen of, the or purposely knowingly or cause death Gerald “did resulting bodily injury in the death of Paul Matusz serious * * following charge that did ask it to jury, the apply principles or the that are enunciated draw the distinctions on the thirteenth count without opinion, in this convicted Gerald distinguishable four offenses he specifying for which of the reading From of record we are satisfied our the was convicted. rationally Gerald not jury could have convicted death, equally causing also—and purposely knowingly or but causing bodily purposely knowingly or serious rationally —of latter, resulting in If defendant not be injury death. would for the a determination of the death-eligible. Without basis verdict, imposition of the death jury’s we cannot sustain the nor, opinion, expressed for the earlier this penalty, reasons pick point thread permit jury up can we a second at some guilt jury’s phase in the first deliberations. Hence charge beginning. capital must from the murder be retried
V A 2C:11-3(c) part, “[a]ny pertinent N.J.S.A. provides, who com 8(a)(1) (2) person convicted under ] [N.J.S.A. 2C:11— by his as an mitted the homicidal act own conduct or who by payment accomplice procured commission of the offense payment, anything pecuniary shall be promise value capital punishment with the Act’s sentenced” accordance added). (Emphasis Referring statutory to the lan provisions. above, guage highlighted argues defendant that execution by his own proper only “directly for an causes death actor who conduct, co-defendants.” He reference to acts of without single relevant concern is whether the defend contends that alone, conduct, Ac standing ant’s caused the victim's death. posits that the evidence revealed cordingly, defendant because *44 Walker, Bland, possibly victim, that at least and also struck the inability the of the medical examiner to isolate the fatal blow dictates that defendant death-eligible is outside the class. reading on legislative Based our of history, reject the we argument. purposes determining
For guilt, of an actor’s the both Code and statutory preceded the and common law that it abolished principal the distinction accomplice. between See N.J.S.A. (“Liability another”); 2C:2-6 for conduct Cooper, State v. (“The (1952) principal distinction between accomplice or aider abettor has been in abolished our jurisdiction”). legislative history clear, The the Act makes it however, enacting 2C:11-3(c), that in Legislature N.J.S.A. the distinguish, to purposes punishment intended for only, a actually murderer who “triggerman” killed—the one —from whose conviction rests theory liability on a of vicarious under An accomplice part N.J.S.A. 2C:2-6. who neither takes in the infliction the fatal nor wounds hires another to commit the may properly murder may be convicted of murder not but be for or sentenced death his her conduct. this For limited purpose legislature has chosen to resurrect the distinction a principal accomplice. between and an phrase “committed the homicidal act his own conduct” part original language the bill’s but was included the statute on adopted Senate amendment March 1982. originally proposed, provided pertinent part As S-112 as “Any person 2C:11-3(a)(1) follows: under convicted [N.J.S.A. (2) perpetrator accomplice pursuant as a or an ] [N.J.S.A] 2C:1-6c.(1)(a) imprisonment shall sentenced to death or life * * introductory his Judiciary remarks at Senate hearing bill, Committee’s on the Senator Russo stated his understanding, sponsor, bill’s chief that there were exposed two classes of murderers were who death penalty: (1) gun the actual who murder, one wields [ ] perpetrator * * * * * * (2)
knife that results the death the one who hires one to ] [and regard our law that refers to a section of and the bill in that
commit murder, * * * 2C:2-6c.(l)(a). That is one instance with that, [AC/.S.^.] deals specifically subjected to the death would be other than the actual perpetrator where one to commit murder. who hires another hire, contract one penalty, Hearing, supra, [Committee 2.] applica *45 to limit the stated intention Despite Russo’s Senator groups, the relatively narrow bill’s to those two tion of the bill 2C:2-6(c)(1)(a) subjected a would have reference N.J.S.A. section of penalty. Under that larger group to the death much accomplice of the actual statute, an one is considered murder, if one may therefore be convicted perpetrator, and Thus, as the murder. “[sjolicits person to commit” such other scope those de drafted, included within its originally the bill murder, merely another to commit solicited fendants who had despite payment, stated promise payment without perpetrator and to the actual applicability limit its intention to commit murder. hire another to to those who Committee, Stier, Edwin During appearance before his Justice, perceived of Criminal then the Director of the Division suggested that the Committee the bill and the actual breadth of an (g): “The defendant was adopt proposed mitigating factor a person and his committed another accomplice to a murder relatively insubstantial.” Com participation in the murder was immediately Russo at 16. Senator Hearing, supra, mittee mitigating factor was unneces that such a expressed his belief in participation the murder sary, accomplice in an whose death-eligible under the “relatively was not insubstantial” was minute, trigger. If he pull He didn’t now. bill: “Wait dealing maybe felony trigger, you aren’t with pull didn’t in this Ibid. here we don’t have bill?” murder situation which reference to response that the bill’s N.J.S.A. Mr. Stier noted 2C:2-6(c)(1)(a) seope certain defendants con included its within liability, capital a class of theory accomplice victed on a ap mitigating factor would proposed murderers to whom intended, Stating such a result was not ply. at 16-17. Id. language would have Russo indicated that the bill’s Senator be amended order to death-eligibility restrict to the two groups limited originally intended.
Further discussion at the hearing focused on the bill’s inclu sion of those defendants 2C:11-3(a)(l) convicted under N.J.S.A. (2) perpetrator.” “as a example, For several members of the expressed Committee their concern that if a team were hired to murder, commit a only one member of the team—the actual perpetrator subjected be penalty. to the death Other —could team, members of the e.g., stake-out, the driver and the who payment received for their role in the murder and whose participation possible, made the crime would subjected only imprisonment. to a term of Noting Id. 17-18. the “uneven * * * ness penalty of the death applying person to one and not applying persons to other equally who are involved” such a situation, argued some Committee members that all team mem equally bers are guilty, and that all therefore should receive equal punishment participation. Russo, for their Ibid. Senator position whose subsequently Committee, deferred to *46 in response indicated that only triggerman the actual should be subjected penalty to the death in such a trigger- murder. The participation man’s in the crime is distinct from that of the participants, murder, other may plan inasmuch as but “[w]e trigger pulled, until the is the murder has not been eonsumated triggerman Id. at 18. Because the “is [sic].” the fellow that life,” somebody’s ended he alone should possible face a death sentence. Ibid.
It is apparent language that the ultimately included—“com- by mitted the homicidal act his own conduct”—reflects the same concerns as did original language: the bill’s “Any person * * * ** perpetrator Indeed, convicted as a very *.” the language “by his own conduct” is identical to that contained statute, liability 2C:2-6(a). the vicarious N.J.S.A. that sec- tion, legislature provided person has guilty of an “[a] offense if it is committed his own conduct or person accountable, conduct another legally for which he is added). (Emphasis or both.” Judiciary See also Senate Com- (1982)(“only mittee person actually Statement to S.112 who murder, commits an intentional perpetrator, person and a accomplice convicted as an who hired the perpetrator, procurer, in jeopardy would stand of the death penalty. Per- felony-murder sons convicted under the persons doctrine and accomplices convicted as procurers other than as would not be eligible capital punishment.”). for
Thus, adopting requirement, the “own conduct” legislature purposes reinstated for capital punishment principal distinction accomplice. between impu While the liability tation of for the conduct of another suffices for a conviction, murder the defendant’s “own conduct” in the com mission of prerequisite the murder is a imposition penalty. death inquiry ended, however,
Our above, is not for as indicated may defendant contends that he subjected to the death penalty conduct, standing alone, if his resulted in Paul argues where, here, Matusz’s death. Defendant more person fatal, than one potentially inflicted blows that were imposition of penalty proper the death is not under the statute. agree
We with the State that defendant’s contention runs causation, counter to principles established and we therefore reject argument. requirement There is no under either the statutory or common law that the actor’s conduct be the exclu sive cause of contrary the result. To the our courts consistent ly rejected argument have may that a defendant be ab liability solved from simply murder because his or her See, actions were not the sole cause of death. e.g., State (1963)(sufficient Loray, 41 injuries inflicted *47 participatory defendant were contributory causes of death); Lassiter, victim’s N.J.Super. (App.Div. State v. 1984) (affirming victim, defendant’s murder conviction where being severely by defendant, after jumped beaten out of an escape eleventh-floor window to beatings; further defendant’s active contribution to the victim’s death sustained conviction for murder). persuaded
We are not Legislature that the intended to change long-standing these principles of causation. The “own conduct” standard seeks distinguish, for purposes punish ment, guilt premised on defendant’s own guilt actions from based on the actions of another for whom the defendant is legally responsible. Accordingly, the focus on the actions of defendant, required as by the “own language, conduct” does not specific finding necessitate a the defendant’s standing actions alone caused the victim’s death. The relevant inquiry is whether or not the defendant actively and directly participated act, in the ie., homicidal in the infliction of the injuries from which the victim died. The critical elements are acted, that defendant in fact and the immediacy of his conduct to the victim’s demise.
B gave The trial court following instruction to the jury respect of requirement that the defendant’s own conduct cause the victim’s death: knowingly
When the offense
the defendant
or
cause
requires
purposely
design
the actual
particular
result,
result must be within the
or contemplation
acting,
as the case
be of the
if
may
the actual
result must
person
or,
not,
injury
designed
involve the same kind of
or harm as that
or
contemplated
not be too
too accidental
in its
remote,
occurrence or too
on another
dependent
just bearing
gravity
volitional act to have a
person’s
on the actor’s
liability
just
the offense. That
is to
under
the circumstances
I have
say
stated
result. essential
there can be more than one cause of a
particular
you
regard
charge
determination
to make in
to the
murder in this
killing purposely
knowingly.
case is whether the
committed the
defendant
[Emphasis added.]
Defense
objection
counsel made no
at the time the instruction
given.
then,
Ordinarily,
inquiry
our
would have to focus
charge
on whether the
plain
constituted
error under Rule
See, e.g.,
Hock,
2:10-2.
(1969)(defin-
State
* * *
ing plain
jury charge
“legal
error in
impropriety
*48
prejudicially affecting
rights
the
of the defendant and suffi
ciently grievous
justify
notice
reviewing
the
court and to
convince the court
possessed
that of itself the error
a clear
capacity
bring
result.”),
unjust
den.,
about an
cert.
399 U.S.
(1970).
90 S.Ct.
The
of the
above tracked verbatim the
language
2C:2-3(b).
of N.J.S.A.
That section of the Code is
principles
concerned with
of causation in those instances in
which the defendant
purposely
has acted
knowingly
or
the
but
actual result varies from the intended
pause only
result. We
express our concern
charge
that such a
did little to increase the
jury’s understanding on this crucial
complex
issue. See
II,
Bey
supra,
(“Jurors
State v.
However, principal our concern is the with extent to which charge the discussed—or did not discuss—the distinction to be principal accomplice. noted, drawn between a and an As distinction, Act has reinstated this purposes but punishment. portion quoted, portions as well as in other charge, the trial essentially court “by defined the his own requirement conduct” to mean killing that the was committed by the charging defendant himself. After jury respect alleged indictment, elements of the crimes in the the court jury legal instructed the about the theories liability of vicarious set forth in N.J.S.A. 2C:2-6. The specifically charged court jury that it could accomplice convict defendant on an theory on count, all namely, thirteenth, but one alleging purpose- knowing ful or stated, murder of Paul Matusz. As the court requires just “that count says, conduct,” what it his own thereby precluding jury convicting from pur- defendant of poseful knowing accomplice theory. murder on an charge regard, was erroneous in that may, that one as an accomplice, guilty purposeful knowing be murder but death-eligible inasmuch as the defendant neither committed *49 by the homicidal act his or her own conduct nor hired another to commit act. that language,
Consistent with the statute’s provid- this Court has 3:7-3(b) ined Rule that an specify, indictment for murder must alia, alleged inter “whether defendant is to have commit- * * by ted the act Judge his own conduct As [homicidal] observed, allegation Newman has “is not an element of the merely triggering offense of murder. It is device for the penalty phase Moore, death of the trial.” State v. 207 N.J.Su- (Law Div.1985). per. The elements of the crimes of murder, purposeful knowing and as set forth in N.J.S.A. 2C:11- 3(a), require do not must defendant have committed the homicidal act his own conduct by he before can be convicted of murder. The factual determination defendant committed the murder his conduct becomes own by important guilty after the defendant is found of murder.
[Ibid.] question may There is no that a defendant be convicted of purposeful knowing theory liability murder on a of vicarious See, Sanchez, under 2C:2-6. e.g., N.J.S.A. State v. N.J.Su Micheliche, per. (App.Div.1988); State v. 220 N.J.Su per. (App.Div.1987). However, in the event of such a conviction, death, may the defendant sentenced to be cause by he neither committed the homicidal act his own Moore, example, conduct nor hired another to do so. beatings by victim died as a result of several inflicted three defendant, Adams, jury defendants. The convicted one purposeful knowing 2C:11-3(a)(1) murder under N.J.S.A. (2), but was unable to reach a on or not verdict whether by Adams had committed that murder his conduct. own Id. at properly 567. The trial court concluded that cir under those cumstances, jury fact that the to reach a unable “[t]he conclusion on by whether or not Adams committed the murder his own conduct is not fatal to the murder conviction. It
merely precludes seeking penalty the State from the death 2C:11-3(c).” under at 577. N.J.S.A. Id. agree Judge analysis
We with Newman's in Moore. requirement that the homicidal act be committed simply question defendant’s own conduct is irrelevant to the guilty purposeful knowing whether defendant is murder. During guilt-phase proceedings, jury first must determine murder, considering, whether defendant should be convicted of appropriate, principles liability where vicarious under N.J.S. Only unanimously 2C:2-6. after it has A. found defendant guilty purposeful knowing jury murder should the turn question to the of whether defendant committed the homicidal act his or her exception own conduct. With the sole of a hire, 2C:ll-3(c), murder for see N.J.S.A. a defendant whose theory liability conviction is based on a of vicarious cannot be *50 subjected death-penalty proceedings. Only those murderers whose conviction rests principals on their status as who —those have committed the homicidal act their own conduct—or on they the fact that may have hired another to commit the crime penalty. face the death charge given
It is clear that a such as that has this case capacity prejudice to visit substantial on a defendant. For record, example, possible on this even it is remote- —however ly jury testimony could have disbelieved Eddie —that Bland, believing Walker and John instead the substance of the initially given by confession defendant to Chief Peterson and Mayor Dix. In hitting that confession defendant admitted to stepping Paul Matusz and to him running on while about However, defendant, according house. Walker “went off” victim, hitting him, on the him trophy, punching with a throwing Accepting a television set on his face. true outline, factual it jury is conceivable that the could have con- independently cluded that Walker’s conduct “caused” the vic- death, thereby rendering tim's accomplice Gerald an who had not committed the homicidal act his own conduct. Neverthe- less, clearly purposeful Gerald could have of a been convicted accomplice pursuant knowing murder as an N.J.S.A. effect, away took from the trial court’s instructions 2C:2-6. significant possibility returning that verdict—a jury accomplice theo- Had he convicted under an deprivation. been penalty-phase exposed not have been to a ry, defendant would instead to a term of proceeding would have been sentenced but to determine jury remand the will have imprisonment. On “by caused Paul Matusz’s death his own defendant whether so, if, explained death-eligible If as we have conduct.” he not, above, If he is not death-eli- death was the intended result. gible.
VI remand, question may arise on the we now Because the penalty phase in its deliber defendant’s contention that address ations, allowed to consider the jury should have been mitigating factor by his codefendants as sentences received 2C:ll-3(c)(5)(h). argument. reject the under We N.J.S.A. apparently outset that Gerald’s co-defendants We note at the 8¡ 1984, was several weeks until June which were not sentenced best, argu- At defendant’s the conclusion of this trial. after jury that the should limited to the contention ment must be that had been recom- to consider sentences have been allowed thirty- State, namely, imprisonment life with by the mended felony- plea to a disqualifier for John Bland on his year parole imprisonment charge, thirty-five-year term murder and a on his disqualifier for Eddie Walker sixteen-year parole with a *51 second-degree burglary and three counts of plea to one count of apparent argument robbery. in defendant’s becomes The flaw by sentencing court is not bound one considers that the when Howard, 110 E.g., sentence. State the recommended therein; R. (1988), cited see also 123 and authorities determines that 3:9-3(e) (“If sentencing judge at the time of effectuating the justice would be served the interests counsel, the prosecutor and defense agreement reached 102 permitted
defendant plea.”). shall be light withdraw his In sentences, of the tenuous nature of such recommended we agree jury cannot that the should be allowed to consider them in penalty-phase its deliberations.
Moreover, even had Walker and actually Bland been sen- prior trial, tenced to Gerald’s argument defendant’s would still issue, be without merit. The section at N.J.S.A. 2C:11- 3(c)(5)(h),provides mitigating addition to the factors (5)(a) through (5)(g), enumerated sections may the sentencer “[a]ny find other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” Supreme Court has mandated underlying cases the fundamental for capital respect humanity Eighth Amendment consideration of the character and record of requires individual offender and the circumstances of the offense as a consti- particular inflicting
tutionally indispensable part
process
of death.
penalty
This conclusion rests
on the
squarely
of death is
predicate
penalty
long.
different
from a sentence of
qualitatively
however
imprisonment,
Death,
in its
differs more from life
finality,
than a
term
imprisonment
100-year prison
differs from one of
Because,
two.
of that
year
qualitative difference,
corresponding
there is a
difference in the need for
in the determina-
reliability
tion that death is the
in a
case.
appropriate punishment
specific
Carolina, supra,
v. North
[Woodson
428 U.S. at
S.Ct.
96
at
304-05,
(citation
(plurality opinion)
omitted).]
at
L.Ed.2d
and footnote
In
mandate,
accordance
previously
with that
we
adopted
have
expansive
an
scope of the
may
factors that
be submitted and
(5)(h).
considered
Davis,
under section
In State v.
103
(5)(h)
scope
mean,
That
is
section
broad
its
does not
however,
Ohio,
scope
that
that
is unlimited.
In Lockett v.
586,
2954,
973,
supra, 438
57
U.S.
S.Ct.
L.Ed.2d
the Court
eighth
requires
stated that the
amendment
that the sentencer
capital
in a
case
mitigating
be allowed to consider as a
factor
“any aspect
evidence of
of a defendant’s
character
record
* * *
* *
any
of the circumstances of the offense
*.” Id.
2965,
at
proffered
L.Ed.2d at see also Franklin Lynaugh, -, 2320, 2327, 101 155, 166(1988) (plurality S.Ct. L.Ed.2d opinion) (rejecting argument capital juries defendant’s that consider, should be in sentencing phase, allowed “their guilt. lingering ‘residual doubts’ over a defendant’s Such ‘character,’ any aspect doubts are not over of [defendant’s] ‘record,’ ”). or a ‘circumstance of the offense.’ requirement, legisla-
Consistent with this constitutional (5)(h) scope any ture has limited the of section factor is “relevant to the defendant’s character or record or to the Davis, circumstances of the offense.” In we determined that proffered potential evidence of defendant’s for rehabilita- “character,” stating, tion was relevant his 2C:11-3c(5)(h), within the context of N.J.S.A. can and should “character,” distinguish embrace those individual An qualities particular person. individual’s to reform —his to his capacity potential pertains rehabilitation — character. evidence that is related to this Consequently, reasonably potential mitigating relevant as a factor under the statute. [ 96 618.] proffered by evidence defendant this case—the sen- plainly
tences received his is not relevant to co-defendants— admitted, either Gerald’s character or his record. If it is to be it must to “the circumstances of be relevant the offense.” We satisfy requirement. conclude that the evidence does not *53 phrase are satisfied that the We “circumstances the application offense” is limited its to the circumstances sur rounding the sentencing the commission of crime itself. The jury may or magni court consider such factors as the relative tude of participation the defendant’s the crime. For exam ple, or “ringleader,” partic was he she the his or her ipation relatively compared minimal to the that of co-defend ants? contrast, imposed the sentences on the co-defendants re- the sentencing
sult from court’s reasoned consideration of peculiar factors are that to those co-defendants. Under N.J.S. 2C:44-1, may A. the court aggravating consider nine circum- mitigating stances thirteen in determining circumstances appropriate balancing aggravating the sentence. The of those requires mitigating circumstances a consideration of may completely factors that be extraneous to the circumstances See, 2C:44-l(a)(6) (consider- of the itself. e.g., offense N.J.S.A. ing aggravating as an circumstance extent the defend- “[t]he prior ant’s criminal record and seriousness offenses convicted”), 2C:44-l(b)(7) of which he has been and N.J.S.A. (considering as a mitigating circumstance the fact that “[t]he history prior delinquency defendant has no or criminal activi- ty law-abiding period or has led a life for a substantial of time offense.”). before the commission of the recent It is thus apparent co-defendants’ sentences are after determined unique a are consideration factors that to them and that do necessarily implicate the circumstances of the offense itself. Although comparative participation the co-defendants’ in the might crime be relevant to the circumstances of offense— properly and therefore as mitigating considered a factor in sentencing the defendant —the sentences that the co-defendants Allowing jury are not. receive to consider those sentences necessarily would mean its determination would influ- be enced, indirectly, by beyond albeit considerations “the character record of individual offender and the circumstances of * * particular Carolina, offense *.” Woodson v. North 96 S. at 961. supra, U.S. at Ct. at L.Ed. 2d The fact that Gerald’s co-defendants received lesser sentences mitigating as no more be considered a factor than could could penalty fact that received the both death considered aggravating sentencing an factor. We hold that the court may mitigat jury not consider the co-defendants’ sentences as a ing 2C:ll-3(c)(5)(h). Moreover, factor under we are N.J.S.A. legislature convinced not want to inhibit a would ability persuade a prosecutor’s defendant become a State’s by offering plea bargain. Allowing jury lenient witness surely inhibiting consider a co-defendant’s sentence would be an factor. *54 jurisdictions apparently question. on
Other
have divided
this
1164,
(5th
Blackburn,
Compare, e.g., Brogdon v.
VII invalid, his argues Defendant that his arrest was wherefore seized, subsequent physical name- confession and evidence urges ly, sneakers, suppressed. have He also his should been 106 suppressed
that his should have been it was confession because right right of obtained violation his to counsel and his reject silent. remain We each those contentions.
A argument Defendant’s first his arrest inval requires suppression id and the fourth amendment all evidence obtained as a result of that of an arrest fruits illegal Wong States, arrest. generally See Sun v. United (1963)(direct U.S. S.Ct. L.Ed.2d and indirect evidence). Specifical fruits unlawful invasion excluded from ly, argues illegal requires suppres defendant his arrest following sneakers, confession, sion of the evidence: his his and, police his to the because statement led the arrest his co-defendants, testimony of the trial Bland and Walker. De fendant further submits that without the stated evidence a jury guilty beyond reasonable could not have found him reasonable and that all doubt therefore his convictions for offenses, murder, including the various must be reversed. question Resolution of the on the whether defendant’s arrest municipal outstanding two court was valid is neces- warrants governed Bruzzese, sarily supra, our decision State v. remarkably whose facts on the “arrest” are issue suspect similar to those in this case. Bruzzese was *55 burglary of employer’s panel his former business. On a of a burglary police rear that been in the during door had kicked imprint a Having found distinctive from the sole of boot. run a routine check determine to whether Bruzzese had a criminal record, police outstanding the learned an arrest warrant against court, contempt had been issued defendant for on municipal account of appear his failure to court on an Four unrelated matter. officers went to Bruzzese’s residence outstanding to arrest him the on warrant. The officers con- cededly purpose, namely, question had a second Bruzzese warrant, the burglary. about When he was on arrested go to put defendant asked to his bedroom on shoes and a him jacket. accompanied Two officers to his bedroom where they pair seized a soles that found and boots with corre- sponded impression panel. on the to the left door phrased
The Court the issue before it follows: incriminating whether boots seized from defendant’s bedroom in the by police arresting charge him on course an unrelated of court were contempt burglary. admissible defendant’s in a involvement Subsumed within prove this issue the fundamental of whether should question is the court consider subjective determining intent motives and of a law enforcement officer in reasonableness of a search seizure under the Fourth Amendment and under paragraph Article Y of the I, New Constitution. Jersey at [Id. 213.] * * * proper inquiry The Court held that “the is whether the officer conduct of the law enforcement undertook the who reasonable, objectively regard search to his or without (emphasis her motives intent.” at 219 underlying Id. added). holding on was based both federal State grounds. at constitutional See id. 216-17. municipal case his argues
Defendant in this arrest on police pretext taking him to merely court warrants was interrogate headquarters to him about Matusz murder. Relying opinion single dissenting on the of a Justice Bruzzese, wrongly defendant contends that Bruzzese was de- cided under the fourth and that his arrest was amendment under therefore invalid the federal constitution. Defendant’s majority opinion suggested analysis unpersuasive: law, any invitation to Bruzzese remains and we decline opinion in case. reconsider our then, Bruzzese, police subjective intent in Under officers’ arresting question him in connection with the homi- Gerald—to question. cide—is relevant to of this resolution See N.J. Rather, inquiry 219. our focuses on the officers’ at whether “objectively The standard is conduct was reasonable.” Ibid. facts to the officer the moment of the whether “the available a man reasonable caution seizure search ‘warrant [would] appropriate.” Terry in the that the taken was belief’ action *56 108 1, 1868,
Ohio,
889,
20
906
U.S.
S.Ct.
L.Ed.2d
(1968),
Bruzzese,
quoted
supra,
in
We with the trial court under test that the conduct Investigator arresting Detective Frank and Bolis in defend- objectively ant was reasonable. The officers had information implicated Investigation defendant the crime. Detec- Investigator MacIntyre tive Frank and confirmed some the provided. A information routine check of criminal Gerald’s municipal record revealed that valid two court warrants for his outstanding. Bruzzese, arrest were As we observed N.J.S.A. police 2A:10-8 empowers contempt officers to serve warrants produce person punishment and “to the subject for con- tempt” issuing the before court the warrant. 228. N.J. at police may by arresting execute a lawful arrest warrant her (citing the defendant his or home. Id. at 228-29 Rule 3:3-3(b)). case, Bruzzese, this unlike the situation the officers they
made no search defendant’s home when executed the conflicting testimony sup- arrest warrants. There was at the hearing pression regarding arresting whether officers warrants, discussed, showed Gerald arrest whether bail telephone and whether defendant was allowed make call entertaining after his arrest. The court the suppression motion found testimony of the involved more officers to be credible defendant, than that of and our own review record See, provides with no us basis overturn determination. Johnson, e.g., (1964). State v. We therefore conclude that defendant’s arrest was valid.
B Although question directly is not raised defend ant, we conclude that seizure of defendant’s sneakers was though valid even no search warrant had been issued. Ordi narily warrant, in the absence of a search must State recognized exceptions establish one to warrantless
109
Alston,
211,
See,
230
e.g.,
search and seizure.
State v.
88 N.J.
however,
case,
(1981),
In
and the authorities therein cited.
this
police
no
to have
search
was
need
obtained a
there
sneakers,
no
prior
of the
warrant
to
seizure
inasmuch
1
Speciale,
N.J.Super.
was
In
96
“search”
involved.
State v.
den.,
(1967),
appeal
(App.Div.), certif.
C respect arguments turn to the raised defendant We now right his alleged right remain silent and violations his to (1) that distinct claims: presents to Defendant four counsel. “scrupulously right his to silence was not invocation of honored”; (2) to were right his of the counsel assertions (3) rights were of his Miranda respected; not that his waivers (4) of his knowing intelligent; that his waivers rights voluntary. accordance with were not Miranda Hartley, 103 N.J. approach adopted by this Court in State v. 252, (1986), question of whether 260-61 we consider first and, so, rights, if whether those the defendant asserted his scrupulously honored. assertions were
1.
rights
his
invocation of
principle
The
defendant’s
must
honored
of counsel
be
remain silent and
the assistance
scrupulously
corollary
prophylactic protections
is a
af-
Arizona,
forded in Miranda v.
U.S.
S.Ct.
(1966).
Miranda,
priv-
L.Ed.2d. 694
Under
the fifth-amendment
ilege against
applied
self-incrimination—first
states
through the fourteenth
in Malloy Hogan,
amendment
1489, 12
(1964) requires
U.S.
84 S.Ct.
L.Ed.2d 653
that a
—
suspect
apprised
rights
his
to remain silent and to have an
premise
attorney present.
prophylactic
of this
rule is the
inherently
interrogation:
coercive nature
custodial
“without
*58
held,
proper safeguards,”
process
the Miranda Court
“the
persons
in-custody interrogation
suspected
accused
or
inherently
pressures
compelling
crime contains
work
which
to
compel
the
undermine
individual’s will to resist and to
him to
speak
freely.” Miranda,
he
do so
where would
otherwise
467,
1624,
supra,
indicates in at time to that he any manner, any prior * * ’ interrogation remain wishes to must cease. statement silent, [A] privilege taken after the his be other than the invokes cannot person product subtle or otherwise. compulsion, S.Ct. at at 86 at [Id. 473-74, 16 L.Ed.2d 1627-28, 723.] however, open, left question Miranda of “under what circumstances, any, may interroga- if the authorities resume rights tion” when to silence or counsel are asserted. State Hartley, supra, v. at 103 N.J. 263. Supreme adopted approach has United States Court an right with If the varies asserted. defendant asserts right counsel, to per adopted then under the se rule 477, 1880, Arizona, v. 68
Edwards
451 U.S.
101 S.Ct.
L.Ed.2d
378,
den.,
973,
3128,
reh’g
452
101
Ill
386;
484-85,
1885,
101
at
68 L.Ed.2d at
see State v.
S.Ct.
278,
(1984);
113,
Wright,
285
Kennedy, 97
State v.
97 N.J.
N.J.
18,
122-23,
(1984);
McCloskey,
125-26
State v.
25-28
N.J.
If,
(1982).
hand,
right
asserts
on the other
defendant
his
96,
silence,
Michigan
Mosley,
then under
U.S.
96 S. Ct.
(1975),
admissibility of
2. right argument that the invocation of the Defendant’s questioning scrupulously predicat honored is to cut off was not finding suppression ed of a at the on the absence fact that he Detective hearing. hearing Gerald testified at the told *59 early questioning that he under the influence Frank the was questions; drugs of not answer Frank’s alcohol could had Frank that specifically, he testified that he told Detective pints liquor to of and three or four he had drunk three four beer, (i.e., six-packs) of and had taken heroin and “cases” to day. that he asked lie down and cocaine that Gerald testified later, request. police that Frank refused that talk to the but simply finding is no factual argues that Defendant “[t]here Frank to as the statement he asked Det. defendant’s questioning so he could rest for a while due his cease condition, by flatly interrogating officer a condition denied the * * * Peterson, by testimony Chief whose but corroborated that when a great court stock.” Defendant notes put the trial trial, appellate has at review confession been admitted 112 penetrating’
record “must be ‘wide and
the
assure that
requirement
fundamental
process
fairness
of due
is met.”
Cook,
402,
(1966)(quoting
Smith,
State v.
47
416
N.J.
v.
State
501,
(1960),
den.,
32 N.J.
cert.
U.S.
81 S.Ct.
(1961)). In
finding
L.Ed.2d 367
a
absence of
of fact at the
suppression
contends,
hearing, the defendant
this Court “can
preponderance
not
conclude
a
beyond
of the record or
a
request
reasonable doubt that the defendant’s
cut off the
to.
* *
questioning
scrupulously
honored
Although
appellate
it is
true
of the record
review
must
penetrating”
be “wide and
a
when
confession has been admit-
evidence,
Cook,
ted into
supra,
it is
State
also true —and
acknowledged in
“weighting]
State v.
itself—that
Cook
credibility of the
[hearing
various witnesses who testified
at
* *
best
judge
task
left to the trial
cific issue attempted whether defendant had in fact to cut off questioning; defendant’s attempted claim that he had so is predicated, however, on his claim his mental condition was impaired use, drug because of alcohol and a claim that the trial court discounted: “There was evidence adduced the defense intoxicants, that he was under the influence that he was credible, under of drugs. the influence It I when testimony case, consider all of including testimony police including officers testimony of Mr. Dicks [sic] *60 ** and Mr. Peterson support That conclusion finds abundant the record. Ger- intoxicated, that he ald’s assertion he told Detective Frank was questions, to could not answer his and wished rest is belied (1) form, (2) acknowledgements signing his his waiver (3) rights, he that understood his his statement that he wished (4) cooperate investigation, drug in the to his denial of use to later, (5) Mayor testimony Dix two hours Detective Frank, Investigator Bolis, Dix, Mayor and Peterson that Chief (6) coherent, testimony appeared and and Gerald alert cut Frank and Bolis that the defendant never tried to off testimony, questioning. Beyond Gerald’s own corrobo- ration offered the defense is Detective Frank’s admission he, Gerald, (although that not checked off the waiver form Peterson, it), signed the statement of Chief Gerald and who eyes “funny.” noticed that Gerald looked and his looked tired testified, however, ap- Even defendant Chief Peterson that court peared agree alert and coherent. We with the trial that claim his the time of defendant’s that mental condition at not questioning by drug and alcohol use is credi- impaired was claim, reject Having rejected necessarily that defend- ble. we alleged impair- mental ant’s further claim that of that because ment, attempted cut off questioning. he
3. next consider that he twice asserted We defendant’s assertion right prior his to the administration to counsel—once test, again after he had confessed to Chief lie-detector Peterson, Investigator if Frank Bolis asked when Detective willing tape he these invoca- would to confess on —and respect request not of his first claimed tions honored. were counsel, testimony suppres- on for defendant relies his attorney poly- hearing prior sion he asked an telling down, him de- graph Frank turned but Detective (a) if told lawyer he not need a he Frank fendant that would know, (b) directly he Frank what needed was allegedly Frank that it too late at involved. also stated night to counsel. obtain *61 again argues Defendant simply that “there is no factual ** *
finding on the issue of whether requested the defendant attorney prior an polygraph. to the If the court below had had, questioning found that he clearly would have had to * * per terminate under the rule of *.” se Edwards The State clearly counters that record fallacy below illuminates the “[t]he * * of these contentions requested *. neither an [Defendant attorney questioning Again, nor asked that cease.” the trial findings question court’s of fact do not address the of whether right defendant prior invoked his to counsel to polygraph; instead, findings premised, that court’s are on general disbe- testimony. lief in defendant’s In other words the fact that request defendant did not counsel the polygraph before presumed court, by the trial for it otherwise would not have question reached the requested whether had defendant coun- sel a second time after his confession to Chief Peterson. reading testimony,
From our of the we conclude that right Gerald did not invoke his to polygraph counsel before the Quite apart examination. from the flat denials of Detective Bolis, Frank and Investigator are we struck the fact that request utterly such a is inconsistent with defendant’s subse quent Why, instance, right conduct. if he had invoked his counsel, test, undergo did he polygraph Mayor Dix when urged both him not to it right take and reminded him of his believe, moreover, counsel? Defendant asks this Court Bolis, officers Frank and ques who would later offer to cease tioning when the defendant he lawyer indicated that wanted a making statement, before a taped have completely would dis regarded light his desire for counsel earlier. of these facts testimony defendant’s is not credible. issue, however,
A more difficult posed by the defend alleged right ant’s second invocation of the to counsel. This occurred after he had confessed to Chief Peterson and after he taped had replied been asked to make a statement. Defendant willing questions that he was to answer the officers’ but that he making taped wanted to consult with counsel before state- questioning, The officers then cease ment. offered to but indicated that defendant he would feel better if he talked about first, possible These incident. facts raise two issues: whether defendant’s statement constituted an assertion *62 counsel, right so, if police properly to the whether honored that assertion. recognized this in Kennedy, supra,
As
Court
State v.
97 N.J.
285,
regarded
at
“access to
counsel is
so essential to the
* * *
privilege
vindication
fifth-amendment
the
‘[i]f
attorney,
interrogation
individual states that he
an
wants
”
Miranda,
attorney
present.’
(quoting
must cease until an
is
474,
supra,
1628,
723).
384
at
at
U.S.
86 S.Ct.
16 L.Ed.2d at
applies
This
rule
initiates
per se
“unless
accused himself
communication, exchanges or
further
conversations with
Arizona,
484-85,
police.”
supra,
v.
451
101
Edwards
U.S. at
1885,
386;
Bradshaw,
68 L.Ed.2d at
see also Oregon
S.Ct.
v.
1039, 1044,
2830, 2834,
405,
462
2d
U.S.
103 S.Ct.
77 L.Ed.
(1983)
(accused
dialogue
(plurality opinion)
411-12
initiate
must
validly
right).
waive
however,
inquiry,
is
The threshold
whether the defendant’s
right
to the
an
of his
statement rose
level of
invocation
* * *
“clearly
The trial court held that
he had not
counsel.
had,
fact,
if
requested
attorney.
in
an
He
indicated that
they
taped
a
he
do that and
wished
statement would
decline to
point
might
in
if
had an
that at some
the future he
do that
he
* *
stated, however,
attorney
*.” As
has
this Court
“because
fundamental,
equivocal request
an
for
right
to counsel is so
light
attorney
interpreted
an
is to be
most favorable
(citing
supra,
v.
97
at 119
Wright,
defendant." State
1);
supra,
Maglio
at 26 n.
McCloskey,
v.
90 N.J.
see also
State
202,
(6th Cir.1978)
I
have
(“Maybe
v.
580 F. 2d
205
should
Jago,
attorney”
right);
an
v.
sufficient
to invoke
United States
(“I
(4th Cir.1974)
Clark,
2d
talk to a
499 F.
805
had better
sufficient).
lawyer”
Wright, supra,
is
v.
the Court
State
procedure
by police
be
proper
noted
followed
where an
equivocal:
is
rights
assertion of Miranda
arguably
a
makes a
which
statement
amounts to an assertion
[W]here
suspect
rights
interrogating
agent
recognizes
of Miranda
his
and the
the state-
questioning
regard
ment
his
to the
construction,
with
susceptible
investigating
crime he is
should
cease
he should then
immediately
inquire
as to
correct
of the statement.
if the
interpretation
suspect
Only
invoking
rights
Miranda
makes
that he is not
his
clear
should substan-
suspect
questioning
resumed.
tive
Riggs,
(quoting
(4th
N.J. at 120 n. 4
States
United
F.2d
[ 97
Cir.1976),
State v.
(App.Div.1980)).]
Fussell,
quoted
N.J.Super.
In our
equivocal
view the defendant’s statement was
at best.
he
questions,
His indication that
would answer all
but would
make
taped
statement unless he
seen lawyer,
had
regarding
right
his
unclear
invocation of his
to counsel.
circumstances,
Under those
the officers’ conduct conformed
strictly
procedure
supra.
with the
noted in
v. Wright,
State
They
questioning
interrogation,
ceased
and offered to cease the
asking,
effect,
clarify
Only
defendant to
his intention.
crime,
his
when
answer—that he wished to discuss the
that it
*63
him feel
would make
better —made “clear that he
not
[was]
invoking
rights
questioning
his Miranda
substantive
[did]
*
* *
Wright, supra,
State v.
4. no invocation Mi- it is determined that there was Once authorities, by the respect not accorded rights that was randa the defendant’s waivers then whether question becomes (2) voluntary. (1) intelligent, and knowing and rights his were trial See, at 260. The court Hartley, supra, 103 N.J. e.g., knowing rights were Gerald’s waivers of his this case held that argument that his notwithstanding defendant’s intelligent, taped of a statement request for counsel the event rights. his The court also he did not understand indicated that voluntary, despite defendant’s were held that the statements pressured by his friends Dix and Peter- he contention that was extent, Frank) (and, to confess. The court lesser son to a and, perhaps, because testimony quite is clear stated: “The happened to Peterson event that Chief the fortuitous speak Pleasantville, wanted to the defendant of Police of Chief * * * part: It was voluntary on his him that was but * * * plot “there was no The court found that coerced.” they were of the fact because deceive the defendant friends.” rights were of Miranda for a valid waiver
The standards supra, 97 N.J. Kennedy, by this Court State discussed 278: * * * * * * interrogation rights and “the is advised of his the accused When statement taken,” and a of an attorney continues without presence * * * government the defend- “to demonstrate rests on the burden heavy against intelligently privilege knowingly self-incrimination waived his ant right counsel.” and his to retained appointed S.Ct. (quoting at U.S. at Miranda, supra, [Id. 724).] L.Ed.2d at *64 matter, individual, a “whether, case-by-case an inquiry * * * intelligent.” knowing, voluntary, and has been waiver Ibid, 1019, 464, 458, Zerbst, 58 S.Ct. 304 U.S. (citing v. Johnson partic- “the 1023, 1461, (1938)). The court should consider 1466 case, “including the back- of the and circumstances” ular facts 118
ground, experience and conduct of the accused.” North Car Butler, olina v. 369, 374-75, U.S. 1755, 441 99 S.Ct. 1758, 60 286, (1979) Zerbst, L.Ed.2d Johnson v. (quoting 293 supra, 304 464, U.S. at 1023, S.Ct. 1466). 58 at 82 L.Ed.2d at The United Supreme States Court prosecutor has stated that need prove by only preponderance waiver a E.g., evidence. Connelly, Colorado v. 157, 168, U.S. 515, 479 107 S. Ct. 523, 93 473, L.Ed. (1986). 2d however, 485 Jersey, New we In have long adhered to law, the view that as a matter of state proven waiver must beyond be a Bey doubt. See II, reasonable Miller, supra, 134; N.J. State v. 392, at 76 N.J. 404-05 283, Kelly, v. (1978); (1972); Yough, State N.J. State v. 600-01; supra, Whittington, 142 N.J.Super. N.J. State (App.Div.1976). 49-50 Defendant’s claim rights those waivers of his before Bolis, Detective Frank Investigator Mayor Dix, and and Chief Peterson knowing were not intelligent premised are (1) on alleged (2) defendant’s intoxicated state and equivocal his right assertion of his to counsel in the event his statement taped. were to above, As question discussed of intoxi cation directly court, addressed the trial which found that defendant impaired was not so as to cloud his under standing. We “see no dispute conclusions, reason to these they based as are on the trial court’s first-hand observation of * * * adequately witnesses supported by the evidence.” Kennedy, supra, State v. at 287. regard
With
allegedly
to the his
equivocal invocation of the
right
counsel,
Arizona,
relies on Edwards v.
defendant
supra,
451 U.S.
101 S.Ct.
119
accomplice.
you
Edwards stated “I’ll tell
anything you want to
know, but I
tape.”
479,
don’t want it on
at
Id.
what *66 “knowing” holding and that his waiver was The trial court’s “intelligent” is unassailable.
b determining bright-line test for the volun There is no rather, determining the rights; tariness of a waiver “[i]n voluntariness, suspect’s has and whether a will been issue of totality overborne, of all the sur a court should assess Miller, supra, 76 rounding v. circumstances.” State circumstances, purpose, this include “the charac 402. interrogation.” suspect and the details of the teristics of the court concluded “that the In this case the trial Id. at 402-03. * * *. I proper fair and manner defendant was handled a voluntary, that his will was that the statements were find here fact, his to talk. It had been on not In he wanted overborne. argues, how bothering him.” Defendant mind. It had been ever, Peterson used their status Mayor Dix and Chief confessing. Specifical him manipulate to into Gerald’s friends admonition, poly Mayor Dix’s after the ly, points defendant straightened “get himself graph, that the defendant had better out,” to “sit Peterson’s instruction to Gerald and to Chief again.” The go “and over the facts with the detectives down” although the conduct acknowledged court described trial coercion, it did not overbear the will might appear to be defendant, by the fact that defendant did as demonstrated (i.e., give refused to cooperate entirely the detectives he with statement). taped Miller, inquiry was supra, 76 N.J. at State appeal suspect by interrogating officer can
“whether an help him telling suspect’s him he is the friend and wants to * * procedure permissible, held that the was This Court technique shadowy into a area that “this moves but cautioned persistence, can cross that if carried to excess in time and improper.” at 404. The Miller intangible line and become Id. Court stressed that the defendant previous had had exposure warnings (ie., arrests), prior Miranda and that was in no “[h]e way deluded or believing misled into that the trooper state acting any capacity other than as an interrogating police investigation officer in the of a serious crime.” Ibid. In this case Gerald continually rights, waived his Mayor both Dix and Chief interjected Peterson capacities their official into the process by reminding defendant rights. Furthermore, of his the defendant told Chief Peterson that he had wanted to tell the incident, had, Chief about the fact, driven the Chiefs house a intention, few times with that but had lost his nerve. Moreover, neither friend’s implicated coercion was in defend- ant’s first rights, waiver of his shortly executed after he was taken custody. Therefore, into burden, State has met its agree and we with the trial court’s conclusion that the defend- *67 ant’s voluntary. waivers were
VIII alleges Defendant for the first time appeal on that the trial court’s failure to include voluntary instructions on intoxi supplemental cation in its jury charges plain constituted error under Rule Hock, 2:10-2. In 538, State v. supra, 54 N.J. at we plain defined error in a jury charge “legal impropriety as a * * * prejudicially affecting the rights substantial of the de sufficiently grievous fendant and justify notice the re viewing court and to convince the court that of itself the error possessed a capacity bring clear unjust about an result.” Applying disagree this standard we with defendant that the supplemental require instructions reversal. charge trial court’s initial properly jury instructed the
that if it had a question reasonable on the doubt of whether defendant’s intoxication rendered him incapable acting pur- posely knowingly, then it acquit must on defendant those counts of the alleging purposeful indictment knowing con- duct, including doing, murder. In so the court correctly cau- crimes is a defense to such jury that intoxication
tioned the See State of defendant’s faculties. produces prostration if it (1986), cited 42, and authorities Cameron, 54-56 104 N.J. v. the fact that focus on Defendant’s contentions therein. court from the instructions requested additional jury twice knowing mur- purposeful and the distinction between regarding manslaughter on the hand, aggravated der on the one instruc- object supplemental to the did not other. Defendant plain error court committed tions, argues that the trial but now sponte on those two jury sua it failed to re-instruct when concerning the intoxication defense. occasions whole, the trial read as a First, apparent that when it is adequately ex- instructions supplemental initial and court’s Freeman, jury. v. defense to State plained the intoxication Second, court (1973). assuming that the even 64 N.J. instructions, are convinced supplemental we erred in its below Although testi- there was any error was harmless. such and his co-de- drug use Gerald regarding alcohol and mony crime, any claim day the record belies on the fendants pros- his faculties were so intoxicated that that defendant was argument that there reject defendant’s therefore trated. We regard. in this plain error IX imposed are excessive argues that the sentences Defendant Yarbough, 100 N.J. light of our decision State den., 89 L.Ed.2d (1985), 106 S.Ct. cert. U.S. year after the date (1986) , more than one was announced which *68 defendant’s invitation sentencing in this case. We decline modify his sentence. sentenced merged related offenses and
The court below
fourth
as follows: on the
remaining counts
defendant on the
Matusz,
robbery
count,
second-degree
of John
alleging a
five-year parole disqualifi-
ten-year
with a
imposed a
term
court
robbery of
count, alleging
second-degree
er. On the sixth
Wilson,
Lottie
imposed
the court
ten-year
sentence with a
five-year parole disqualifier to run consecutively to the sen-
imposed
tence
on the fourth
count,
count. On the second
alleging a second-degree burglary,
imposed
.court
a five-
year sentence
concurrently
to run
with the
imposed
sentence
on
the fourth count. The court also concluded that if the sentence
imposed
death
on Gerald’s murder conviction were ever
reduced to a term imprisonment,
then the cumulative sen-
tence noted above was to be served consecutively to the term
imposed on the murder count.
argues
Defendant
that such a
result violates one of
sentencing guidelines
stated in Yar-
bough, namely, that “there should be an overall outer limit on
the cumulation of consecutive
multiple
sentences for
offenses
* * *
not to exceed the sum of
longest
terms
that could be
imposed for the two most serious offenses.”
We need not
question
address the
retrospective
appli-
see,
cation of Yarbough,
e.g., Coons v. American Honda Motor
Co.,
(1984),
For all of the reject reasons we defendant’s “exces- argument. sive sentence”
X contention that he was turn now to defendant’s We prosecutor’s of the assistant a fair trial reason denied plea agreement misrepresentation jury to the alleged Again, Bland. are by his codefendant John entered into we plain under any there error Rule to conclude that was unable 2:10-2. case, in Bland entered a retraxit
Before the trial Gerald’s In ex- guilty felony the murder of Paul Matusz. plea of to remaining agreed change plea the State to dismiss for the against him and to recommend counts of the indictment thirty-year imprisonment with a sentence of life maximum any inform us of disqualifier. The record does not parole concerning testifying on at that time Bland’s behalf discussion against Gerald. of the State sentencing, for the court indicated appeared Bland first
When plea bargain was neither fair to State its concern that the Although the record is not justice.” “interest of nor clear, concerned with the entirely appears it that the court was charging superseding indictment Bland possible issuance of a Matusz, ap- had died the death of John who connection with ques- after his assault. proximately two-and-a-half months causally Matusz’s death was related tion of whether the elder subject dispute between the victim’s to the assault was County the Atlantic Medical Examiner. personal physician and sentencing hearing pending clari- adjourned the The trial court fication of that issue. again appeared hours, Bland and the before
Within State agreement plea under which State court an amended with against Bland in agreed superseding indictment seek time, For the first John Matusz’s death. connection with agreed testify that Bland had prosecutor indicated assistant Bland's decision against Defendant contends that Gerald. now exchange testify consideration offered additional indictment, superseding promise not to seek the the State's *70 position the whereas State’s is that there was no link between those decisions.
Defendant moved before trial for an order barring in limine any jury’s reference in presence the to the elder Matusz’s death, apparently fearing might that testimony unduly such prejudicial to granted him. The trial court the motion. On his examination, direct Bland testify stated that his decision to against by Gerald was any motivated not new concessions during plea negotiations, offered the State but rather the him, fact that because had Gerald “snitched” on he going was spend years to at least next thirty prison. the On his Bland, cross-examination attempt of defense counsel made no inquire into the possibility that the to testify decision was prompted by promise prosecute the not to in connection with John Matusz’s death. summation,
During guilt-phase his prosecutor the assistant commented that had exchange Bland received no benefit in for testify. his decision to Although defense counsel made no objection comment, argues to that on appeal defendant of prior because the barring court’s order reference to John death, “hamstrung” explore Matusz’s he was not could the agreement. urges true terms of Bland’s Defendant that the prosecutor’s assistant accurately failure to characterize agreement terms of in his summation was a violation of his right process. due
Assuming for purposes of this discussion assistant prosecutor did in duty fact a full breach disclose in the terms (see agreement plea Taylor, v. State 49 N.J. (1967)), arewe satisfied that his conduct did infect the proceedings plain capable with “clearly error that was pro * * ducing unjust 2:10-2; an result R. see also State (“not (1960) Higglewith, every suspected N.J. devia perfection part prosecutor tion a from on the will justify ensues, reversal such a conviction. Before result his unmistakable infraction must be clear and must substan right to have fundamental tially prejudice the defendant’s (quoting merits of his defense.” State v. fairly evaluate the jury (1958)). Bucanis, 26 agreement the plea terms of were To the extent that the relevant, credibility. Bland’s From our they affected record, apparent jury was it is that the made review of Gerald, given against testimony Bland’s Bland’s bias aware angry having “snitched.” addi- he was at Gerald tion, adequately jury that it trial court instructed must testimony scrutiny” to the of Gerald’s codefend- give “careful * * * they special interest in “and consider whether have a ants testimony and whether their the outcome of the case *71 by expectation any favorable treat- hope influenced the or of feelings reprisal.” of any revenge or We ment or reward reject argument. therefore defendant’s
XI dispropor- is argues Defendant next that his death sentence (1) independent given grounds: claim two tionate. His rests on crimes, in the his sentence participation extent of his is the to the received his compared excessive when sentences (2) (intra-ease his accomplices disproportionality); and sentence imposed in other compared excessive when with death- (inter-case throughout dispropor- the state penalty-eligible cases light these in of tionality). We not consider claims our need proceedings relating to remand for further decision the matter death-eligibility. to defendant’s
XII challenges grand petit jury now turn defendant’s We file supplemental forth in his brief. Defendant did not as set challenging array grand the jury in the trial court motion did, however, challenging him. that indicted He file a motion petit jury motion was defense array. This withdrawn 19,1984, May day May of on the first trial. On counsel original defendant sentenced to death. In the appellate 25, 1985, on appeal Court, briefs filed March on direct to this did any challenges grand defendant not raise petit jury indicted, tried, arrays that and convicted him.
Meanwhile, 30, 1984, May on jury begun selections had of E. Long, County trial Ronald another capital Atlantic defend- day, Long challenged jury ant. On that petit array on the minority representation. basis of insufficient pretrial His chal- lenge grand jury array previously to the had been withdrawn. Although summarily the trial rejected Long’s petit jury court untimely, claim it subsequently because was it was determined jurors that the of special panel number on the available selected capital County cases Atlantic was insufficient under Rule Thereafter, existing panel 1:8-5. was excused and the trial 24,1984. July grand was rescheduled for Long reinstituted his petit 21,1984. jury challenges Despite June on the untime- ly Long’s subsequent nature jury array, attack on the evidentiary Law held hearings Division and concluded that the County jury Atlantic system selection not rise “did to the task providing juries representative that were of a fair cross section community equal which all an had chance Long, N.J.Super. (1985). selection.” State conviction, year Almost one his Gerald after moved to have judicial Long jury this Court take notice of the record *72 time, challenge proceedings. per- At the sought same Gerald (1) supplemental mission to file briefs on following issues: object right array whether defendant his to to jury waived 3:10-2, 1:8-3, 3:10-1, 3:10-5, (2) under and Rules whether grand petit jury process selection use at time of 2A:71-2, Gerald’s indictment and conviction violated N.J.S.A. jury granted We both selection statute. motions. A first govern We address the waiver issue. The Rules ing grand petit jury challenges, general as well as the more
128
motions,
thirty-day time
pretrial
impose governing
provisions
Rules,
arrays. These
challenges
jury
to the
limitation on
however,
period at the court’s discre-
enlargement of that
allow
3:6-2,
3:10-3,
showing
good cause. R.
R.
tion, generally on a
strictly enforced the time
3:10-5,
Our courts have
R. 1:8-3.
R.
reasoning
to do
jury challenges,
pretrial
on
limitations
orderly
of our crimi-
impede the
administration
would
otherwise
Laws,
159,
(1967)
50
183
system.
v.
justice
See State
nal
investigate,” they could
“many months to
(where counsel had
investigation as to the
belatedly
general
for “a
not move
[c]ounty
were chosen.
Juries
in which Grand
manner
[the]
* * *
circumstances, any other course would have
Under
justice.”),
mod
orderly administration
grossly disserved the
den.,
971,
494,
393
89
cert.
U.S.
grounds,
on other
51 N.J.
ified
Tucker,
(1968);
143
State v.
N.J.Su
21 L.Ed.2d
S. Ct.
(“defendant’s alleged
unawareness
(App.Div.1976)
per.
successfully challenge the
to
might
‘he
have been able
*
* *
granting
to
affords no
for
Jury array,’
basis
[leave
Grand
* *
showing
challenge]
*. Absent
post-conviction
make a
* *
*
to make a
who has failed
prejudice
a defendant
actual
* * *
conviction,
not,
may
his
attack
timely challenge
after
post-conviction
composition
proceeding
in a
grand jury’s
(Law Div.1974)
Robinson,
relief.”);
N.J.Super. 525
v.
State
trial,
day
on
when
(challenge
grand jury array made
to
investigate and when
many months to
counsel had
defendants’
they
support allegations
petitioner provided no facts to
system, properly
challenge jury
deprived
opportunity
were
(App.Div.),
denied);
N.J.Super.
Hughes,
State
(1974) (where ground asserted reason-
den.,
certif.
As provi- Implicit in the extension against application. mechanical recognition that circumstances will exist which sions is the
129 enforcement of the unjust. Thus, waiver will be where the justice interests of by allowing would be served challenge proceed, the courts have exercised their discretion to hear the issues. Long, 32, See State v. 198 N.J.Super. (App.Div. 38 1984) (holding on interlocutory appeal that trial court did not enlarging abuse its discretion in period the time within which bring grand defendant could jury challenge. Whether standard good burden, cause or some lesser presented materials were support extension, sufficient to time particularly considering “right that the impartial jury an ‘is entitled to the most protection zealous in the context of a prosecution criminal ” which the (citation defendant faces the penalty.’ death omit ted)); Porro, 259, (Law State v. 152 N.J.Super. Div.1977) 264 (“Although it is true that the time prescribed by limitations our court rules must be honored so as to advance orderly justice, administration of degree these rules must maintain a guarded flexibility and adapt good where cause is shown and justice served.”), aff’d, the interests of would be N.J.Super. 158 (App.Div.), den., 269 1047, 724, cert. 439 U.S. 99 S.Ct. 58 (1978). L.Ed.2d 706
In the context of
penalty,
the death
particularly
we have been
careful to avoid
procedural
slavish adherence to
Rules that
would
bar
defendant’s claim that is otherwise meritorious.
“Imposition of the penalty of death is ‘profoundly different
*
* *
from
penalties’
and,
such,
all other
requires more,
* *
fewer, procedural safeguards
Biegenwald,
State v.
96
630,
(quoting
Ohio,
N.J.
639
supra,
605,
Lockett v.
438
atU.S.
990),
S.Ct.
2d at
L.Ed.
clarified
130 stake), den., cert. 379 U.S. 572 S.Ct. L.Ed.2d (1965). jury
We conclude that defendant has not waived his
claims.
This is not a case in
nothing
which defendant offers
but
unsupported allegations.
Robinson, supra,
State v.
Cf.
N.J.Super.
(challenges
grand
petit jury arrays
at 529-30
to
facts). Rather,
supported by
findings
he relies on the
of a
important questions
trial court in
statutory
which
violations
raised
were
relevant to defendant’s case. This is not an ordi-
nary
appeal,
capital appeal
criminal
it is a
implicates
all of
heightened
procedural
Moreover,
the
concerns of
fairness.
“jury
integral part
selection is an
process
of the fair
to which
every criminal defendant is
juries
entitled.
It is vital that
selected in
suspicion.
a manner free from taint and
To that end
pertinent practice safeguards
the
in the statute must be care-
cases,
fully
capital
responsibility
observed.
this
is of the
deepest
Ramseur,
(citations
supra,
concern.”
B specify respects We need not here in which the County jury process Atlantic selection was deficient. The de tails of those deficiencies reported have been set forth opinion in Long, supra, N.J.Super. Law Division at 474-80. say Suffice it to procedural the defects were and not They substantive. ability stemmed from the limited of technol ogy accomplish easily accomplished by what war once draw ing names from a box. examples technological system
Some flaws (1) “match-merge” process include: culling dupli- names because, cated on the voter and driver lists was ineffective example, people some used different names on the different lists; (2) challenged 180,000 source list contained names of persons ages eighteen seventy-four between the when figures 130,000; the census (3) totalled the mailing questionnaires persons qualified source-list obtain list computer was flawed the choice of a internal number that bunching had the effect of computer runs, causing people with the same name experience last and address to frequent selection; (4) drawing qualified names from the list was affect- ed the use of a low resulting interval number in certain portions being “over-selected”; (5) of the list use of sorting on device based the fifth letter of produced last names *75 jurors from the higher frequencies same household at than suggest. odds would Long, the court considered these identical contentions and
concluded that the “purposeful deviations were neither nor ill-intentioned,” 486, although id. at and it not proven had been “any cognizable that class been excluded or that defend- ha[d] any prejudice,” ant suffered process “decidedly the was ha[d] (footnote omitted). non-random.” at 485 Id.
The court that observed administering juror making those the selection were their certainly best process jurors, Legislature, effort select from the lists mandated an the in shortcoming unbiased and all-inclusive manner. The here not an does represent origin, color, invidious discrimination based on race, creed, national ancestry, go matrimonial status or sex. not did behind the They random, simply facially that blind, or which the is, unintentional, in purposeless haphazard way comput- er was selection initiated. Their sincere belief was that did not process did discriminate, the burden across the and did fulfill spread community of the It is law. that “random” has been defined requirements now, with new and the used in dimension, its disected and process pursuit microscopi- [sic] lack examined, that of “randomness” cally known understood. (citation omitted).] at 488 [I'd. However, here, in Long, as there was no that the evidence panel composed representative. was There has been no suggestion independence grand petit jury was Hart, 565, compromised. v. 139 N.J.Super. State 568-69 Cf. (assistant (App.Div.1976) prosecutor’s “impinged upon conduct independence grand jury improperly influenced determination.”). any its Nor was there indication “that the panel in any way prejudiced biased or grand ‘the
132 rationally persuasive jury it no substantial or evi had before ” Ramseur, supra, upon to base its indictment.’ dence which States, 106 N.J. at 232 Costello v. United U.S. (quoting 350 406, 409, 100 397, (1956)(Burton, J., S.Ct. L.Ed. concurring)). In fact the methods used chosen out of a were juror-selection process improve commitment to rather than attempt inject an to undermine or to invidious discrimination especially The motor added into it. vehicle lists were Now, purpose. despite County the efforts of the Atlantic Commission, Jury they learned that the Grand we have produces non-random This is not the method chosen results. procedures case where the used bore no semblance to the State See requirements randomness of the selection statutes. (in Wagner, N.J.Super. (App.Div.1981) selection general panel, jury of trial from trial court seated first fourteen box; jurors challenged jurors jury to enter room and excused following questioning were at various rows the courtroom “right point trial court started at one and continued where row”). down, procedures used here did not constitute recently statutory clear or constitutional violations. As we said Ramseur, supra, at 233: * * * injustice, would not hesitate to call Were we to sense fundamental we any *76 proceedings. Although used for further the implicated procedures obviously showing the randomness of the selection there is no that substan- process, they undermined the randomness as the when, here, tially principle, purpose judges’ greater to racial balance and not actions was achieve impermissibly cognizable group, to exclude members of a the statute does not call for dismissal. Long, note further that in the court concluded that the We declining granted prospective only, relief there would apply ruling Long its the defendant himself. 204 new even N.J.Super. at 487-90. Long purpose aspects certain
The of the rule was correct County system jury of the Atlantic selection that affected the through procedures randomness of the assurance of numerical Ramseur, supra, 231; supra, Long, 106 N.J. evenness. N.J.Super. at 483-84. The decision not aimed at eradicat ing nor, noted, any showing was there of—invidious dis — any crimination of kind. Rather Long rule imple seeks to requirement jurors ment the be selected in purely ran dom every county fashion so that resident will equal have an serving. chance of peculiarities Given the present situa irregularities tion in which in the process selection were the imperfect result of an conception of how to use technology to implement, undermine, rather than require randomness ment, we hold that N.J.S.A. 2A:71-2 does not require reversal.
XIII judgments of conviction on all but the thirteenth count— capital-murder judgment conviction—are affirmed. The capital conviction for murder is reversed and the cause remand- ed.
O’HERN, J., concurring. I agree entirely with the explanation Court’s well-reasoned appropriate death would not be the punishment under New Jersey’s capital punishment act when the accused did not intend the death of the disagree victim. I contemplates the Code not, event, such a result any but would complicate further capital our by creating murder law a new form of murder not found in suggestions the Code. I offer these few for harmoniz- ing the Code’s current capital definition of murder with the punishment act. Much of what I write will be found in the majority opinion continuity. but is included here for
I begin I my analysis by recognizing difficulty that there is a interpreting the Act Legislature’s occasioned selective some, all, provisions inclusion of but of the Model (MPC). Penal legislative Code We noted this modification of Grunow, MPC definition of murder in State v. 102 N.J. *77 (1986): 138-39 [originally] four Penal Code of the New Jersey proposed The drafters 3(a)(1); (1) categories committed 2C: criminal homicide purposely, of murder: 11— 2C:ll-3(a)(2); (3) knowingly,
(2) homicide criminal homicide committed criminal manifesting extreme indifference to under circumstances committed “recklessly (4) 2C:ll-3(a)(4). 3(a)(3); and murder, human life,” felony the value of 2C:11— Report Jersey Commentary: [Citing the New Criminal Law Final II of (1971) Revision Comm’n Commentary].] [hereinafter capital limited murder to Report would have The Commission felony murder. categories: purposeful murder only two Jersey previously had Murder in New Commentary at 168. early degrees part as of an reform to into two divided been degree characterized mitigate penalty, the first the death killing.” 2A:113- “willful, premeditated N.J.S.A. deliberate 1978, 95, All other murders were repealed by L. c. 2C:98-2. penalty. degree subject not to the death the second 1978). homicides that (repealed 2A:113-4 Criminal N.J.S.A. manslaughter. not murder were were not define murder. Murder was pre-Code statute did Our adopted Jersey, in New seem to have common-law crime. We elsewhere, understanding that an unlawful common-law as killing from an act of murder if it resulted homicide was (a) mind: an following states of accompanied by “one of any grievous bodily harm to cause the death of or intention to (b) probably cause either knowledge that the act will person they may results, though hopes actor these even them, (e) commit an intention to or is indifferent about occur his peace officer in the execution of felony or to resist a Michael, A the Law Homi- duty.” Wechsler & Rationale (footnote omitted) (1937) I, 37 702-03 cide: Colum.L.Rev. Gardner, Wechsler & See also State Michael]. [hereinafter (1968) Stephen (citing Digest Sir James 51 N.J. (1877)(defining “malice aforethought”)). Law Criminal phrased Stephen’s categories are Although the first two of distinguish they at common law. differently, were difficult noted that Professor Wechsler categories have said, of murder we included, second of
[t]he Stephen’s cause death or homicides caused an act which the actor knows will probably *78 grievous ambiguously a case treated harm, the earlier bodily summarily by thought writers in so far as it was treated at all. It has been to be commonly gross resulting distinguished the case of recklessness extremely death, be negligent manslaughter greater from homicides that are by relatively danger great of the act and the indifference to the of consequently safety others manifested it. Colum.L.Rev, (footnotes omitted).] Michael, & at supra, [Wechsler 709-10 introduced, originally however, 1978, 95, As through L. c. 2C:ll-3, Jersey the New Code of Criminal Justice made no provision any murder, for form of reckless whether it be through “extreme indifference” or intention to cause “serious bodily injury” another; provided only it for reckless man- Knowlton, slaughter. Commission, Professor Chairman explained: significantly The statute from the commission in two departs report respects. highly
The first is the elimination of reckless murder. This is desirable since a knowingly. homicide is murder if it is committed The element of “reckless- disregard ness” awareness of the risk and a conscious requires personal it, “knowingly” while term the actor to be certain that his requires “practically degrees conduct will cause such a result.” These two factors codify stringent “knowingly” for homicide: the more one of is more culpability greater killings suitable murder because of its sanction; “recklessness” are manslaughter. made properly Rutgers Comments New Penal L.Rev. Upon Code, Jersey [Knowlton, (1979) (footnotes omitted.)] 91, appears It original case that between the enactment 1978, September of the Code in and its effective date in 1979, September training sessions led observers to conclude great gap culpability that there was too between the crimes manslaughter. Accordingly, of murder and in the consensus amendments of section 2C:ll-4 was amended to divide manslaughter categories, aggravated manslaughter into two manslaughter, depending presence and reckless on the of cir- manifesting cumstances extreme indifference to human life. L. (codified 2C:ll-4(a)). time, c. 178 at At the same N.J.S.A. the definition of present murder was amended to add the language may that criminal homicide constitute murder when purposely knowingly the actor death or “causes serious (codified bodily injury resulting in death." L. c. 178 2C:ll-3(a) added). (emphasis Legislature N.J.S.A. What the categories murder Stephen’s two of Sir James did was take willful, accompanied if second-degree murder that were them, conduct, deliberate, put one of premediated murder provision, the definition of bodily injury under serious higher degree of indifference homicide under a and the extreme manslaughter, first-degree offense. aggravated *79 introduced, provision capital punish- made no As our Code was, Hence, significance additions as the only ment. Statement stated: Committee’s Senate 2C:ll-3 was ex- of murder under committee amendments, concept By “knowingly” cause in addition to those who or “purposely” to include, panded “knowingly” cause serious bodily individuals who those “purposely” [death], injury results in death. which (Manslaughter) amending a section 21A 2C:ll-4 amendments, committee By create a new of the amendment is to added to the bill. The purpose manslaughter” “aggravated causes death under when the accused offense of manifesting to human life. extreme indifference circumstances (1979), reprinted No. 3203 Statement to Senate Committee, Judiciary [Senate CrimJustQ. in 67.] time, language to the definition At the same the bill added penalties provided in specific higher to “insure that the murder found in 2C:ll-3(b), presumptive than the sentences rather Code, applicable to the offense Chapter 44 of the [were] enacted, thirty years for that sentence was murder.” Id. Ás parole. possibility of One years fifteen without murder with guilty of a manslaughter was then aggravated convicted of crime, twenty-year term of first-degree subject to a ten- to ineligi- year period parole imprisonment possible a ten with bility.1 capital punishment in it Legislature restored
When the the definitions of criminal by incorporation did so brief by murder and the additional classified as homicides were murder was later increased up 1The maximum sentence for non-capital c. L.1982, 111; with without parole, life thirty years possibility imprisonment manslaughter aggravated was increased to sentence for thirty the maximum 1986, c. 172. bar. L. with a fifteen-year parole years possible requirement that the act be conducted one’s own hand or 2C:ll-3(c). that of a hired hand. N.J.S.A. point
At this we must ask Legislature whether the would preserve intend to a form of unintended murder where the actor’s intent is to inflict bodily injury” “serious upon the victim. I think not.
II begin with, 2C:ll-2(a) To N.J.S.A. defines criminal homicide only in terms of death. It states that criminal homicide is if or, committed the actor “purposely, knowingly, recklessly under the 2C:ll-5, circumstances set forth in section [death causes the being.” death of another human The actor’s auto] state of mind is related to the death. It is clear that this all-inclusive definition of criminal homicide does not embrace arguably 2C:ll-3(a)(l) that which is (2) is, set forth in or —that the definition of criminal homicide does not include the situation where the purposely actor or knowingly bodily caused serious injury happened person result death. Such a did not *80 purposely (it cause death happenstance); person was a such a (it did knowingly not cause death happenstance). was a We recognition therefore must start out interpret with a that to intentionally Code that knowingly causing or bodily serious injury happens murder, that to result in death is non-capi- albeit murder, tal is a that conflicts with the basic defini- conclusion tion of criminal homicide found in 2C:ll-2.
We next consider the definition of bodily injury.” “serious bodily Serious injury “bodily injury is which creates a substan- serious, tial risk of death or permanent disfigure- which causes ment, protracted or impairment loss or any of the function of v, bodily organ.” 2C:ll-l(b). member or N.J.S.A. See State Sloane, (1988)(stab pierces wound that arm could cause bodily injury). serious If an actor “pro- has caused a impairment tracted loss or any bodily of the function of mem- ber,” it is an instance of terrible criminal conduct but one question death. We must ask the necessarily threatens
that that possibly have intended Legislature could whether intentionally should person’s another arm someone who breaks result, answer happens to and we executed because death conclusion.2 That is our basic constitutional “no.” Legislature have intended question The further is could thirty years in non-capital murder with such an act be Recognizing Legislature can parole. that the prison without culpable might we think less seriously penalize that which more accept might culpable, think more we must than that which we understanding there is some common about the notion statute, that entitles us to divine culpability, even without legislative intent. penalty Legisla- that the
My then is that the lesser conclusion (which aggravated manslaughter prescribed has for ture murder), putative non-capital suggests culpable than this more penalty impose mean to the harsher Legislature did not Legislature culpable I further conclude that if the this less act. (pur- precisely the same act “aggravated defined as assault” another) bodily injury to posely knowingly causing or serious murder, in the non-capital except happenstance for the this did, making it did not result whereas the latter former death (five assault) degree crime (aggravated former a second murder) mandatory (non-capital years) and the latter ten term, outrageous ascribing an almost thirty year prison we are part Legislature. N.J.S.A. 2C:12- intent on the See 1(b)(1) assault). (aggravated results. See 2Of the reticulated structure of the Code forbids absurd course, 2C:2-3(b). is not for the results of
N.J.S.A.
An actor
criminally culpable
design
within the
or
conduct unless the actual result either "be
contemplation”
result”)
(sometimes
designed
described as "the
of the actor
contemplated
*81
designed
injury
harm as that
or
involve "the same kind of
or
contemplated
or
on another’s
remote,
occurrence,
be too
accidental
in its
not
dependent
gravity
just bearing
on the actor's
or on
volitional act
have
liability
result”).
2C:2-3(b).
(sometimes
"the remote
N.J.S.A.
his offense"
described as
read,
non-capital
require
Plainly
the crime of
murder would
purposely
knowingly
bodily
only that the actor
inflict serious
injury, in terms of the actor’s intent and the actor’s conduct.
read,
simply a coin-
The result —death—if the statute is so
is
cidence,
just
that is not too remote as to have “a
albeit one
* * *
bearing
gravity
Supra,
on the
of his offense.”
at 138 n.
2C:2-3(b)).
construed,
(quoting
provision
So
N.J.S.A.
theory
enact a “much discredited
of liabili-
would
[Holmesian]
ty.” Atiyah,
Legacy
Through English Eyes
Holmes
Later, 27,
(1983).
Century
A
Holmes and the Common Law:
2C:ll-4(a).
aggravated manslaughter,
Contrast
this with
“recklessly
There the actor
causes death under circumstances
manifesting
life.”
must
extreme indifference to human
One
actor, realizing
probable,
find that that
death was rather
that,
a state
fully aware of
nevertheless committed the act with
less,
all,
I
I
of mind that said “I couldn’t care
don’t care at
don’t
dies,
person
though I
care in the least bit if this
even
know that
high degree
probability
causing that
my
possesses
act
the actor could
as
as
person’s death.” The conduct of
broad
behavior,
inflicting injuries,
it could include
scope
of human
airplane
throwing
it could include
someone out of an
or fractur-
things go
bodily
All
into “serious
ing someone’s arm.
of these
have
include above all of that the
injury,” but it would
almost,
quite,
the same
required state of mind that is
but
death, i.e.,
causing
purposely causing
knowingly
death
that manifests extreme indifference to the value of
conduct
act,
culpable
certainly
human life.3 To me it is a much more
aggrava-
Yet
simply breaking
more so than
the victim’s arm.
thirty years
manslaughter carries a sentence of ten to
with
ted
(1988) (Handler,
dissenting)
J.,
Rose,
3See State v.
one’s own for the death if conduct by aggravating sponsor’s incorpo- factors. view that murder, degree premeditated ration meant “first willful mur- Capital Hearing Punishment Act: on S. 112 der.” Before Judiciary Senate (1982) Committee Committee [hereinafter Russo). See also Senate Judi- (statement Hearing] of Sen. ciary (1982) Committee to S-112 (“only person Statement * * * actually who commits an intentional murder would stand Although in jeopardy penalty.”). pre- death these are concepts, they Legislature Code reinforce the belief that did not intend bodily injury” that the “serious feature of 2C:ll-3 relationship murder be devoid to death. Recall that the feature’s an evidentiary function at common law was as device proof aforethought distinguished furnish the of malice helped jury murder. Such conduct to understand the ac- death, mind, culpability tor’s his state of for the not serve as an independent form homicide.
Based on all of this I conclude the insertion of language resulting bodily injury “or in death” in serious 2C:11- 3(a)(1) (2) necessarily subject is to the internal consistency graduated punishment contemplated Code and the there- Hence, by. I would conclude that in those cases which the bodily injury probative serious a victim a infliction of on 2C:ll-8(a)(l) crime murder element in the under N.J.S.A. (2), charged that have jury must be the defendant must had (in purpose knowledge as well the the Code’s sense of *83 certainty), 2(b)(2); 141-142, practical see N.J.S.A. 2C:2— infra that death would result.
III I in the supported my am conclusion internal structure of into Legislature transposed the as well. the the Code When second-degree previous concepts of mur- Code the common-law der, concepts general it these to the subject made Code’s framework. analysis, my
For of I limit discussion to purposes this shall murder, although principles the knowing would be similar culpable It that the purposeful may case of murder. be mental apply only intent to inflict the state was to the blow. .intended suggests plain English reading A that. But the mental-state complex provides provisions of the Code are indeed. The Code guilty can of offense he acted person that no be an “unless recklessly, negligently may as the law purposely, knowingly, or require, respect each material element of the offense.” with vary 2C:2-2(a). The material elements an offense N.J.S.A. se, (1) (2) may per the attendant they involve conduct (3) conduct, the result of conduct. circumstances Moreover, for culpability status each. Code defines prescribes the kind of defining law an offense “[w]hen offense, is commission of an culpability that sufficient thereof, among distinguishing the material elements without provision apply shall to all material elements such offense, appears.” contrary purpose plainly N.J.S.A. unless added).4 injury 2C:2-2(c)(l) (emphasis the result of the That legislative with to the consensus amend- noted, 4As history respect Legislature concerning intended to create a ments is indeed whether the sparse clearly death a material element of the crime of murder. Hence, 2C:2-2(c)(l), under it N.J.S.A. would follow that knowl- edge that requisite death will follow is the mental state for contrary purpose plainly appears.” murder unless “a Remem- knowledge ber that purpose. quite specific is not The Code is knowledge apply about how is to to the various elements of an fact, distinguishes offense. the Code between the state of (1) conduct, (2) knowledge required for attendant circumstanc- es, (3) result conduct. knowingly A acts with to the nature of his conduct or the person respect attendant circumstances if he is aware that his conduct is of that or that nature, high such circumstances if he is aware of a of their exist, probability knowingly with to a result A his conduct if existence. acts respect person
he is aware that it is certain that his conduct will cause such a result. practically 2C:2-2(b)(2) (emphasis added).] [N.J.S.A. interpretation,
Under this if an actor commits bodily serious death, injury that results he would be convicted of murder *84 only adjudged if he practically is to have been certain that death would result from his conduct. Code,
The way, self-correcting respect in this is with to the anomaly by legislative created bifurcation of the two forms murder, second-degree i.e., of common law bodily “serious injury” and “extreme indifference” homicide. precise
The delineation of these mental states of criminal culpability, each from drawn the Model Penal Code and each 2C:2-2(b), represented effort, defined in N.J.S.A. an one of it, put greater the framers of the Code “to achieve individual justice through a guilt closer relation between and culpability, requiring culpability workable definitions of the various precisely factors. These factors must be related to each ele- offense, defense, ment of an mitigation, or unnecessary all upon limitations culpability individual should be eliminated.” Knowlton, supra, (footnote Rutgers omitted). L.Rev. at 2 form of criminal homicide that would be more /ess-morally-culpable punished aggravated manslaughter. than severely objective act to if their is with a result conscious respect People “purposely” “knowingly” cause such a act with to the result if it is result. People respect high objective, certain or not their conscious are aware of a yet they practically * * * conduct will cause the result. their probability “knowingly” act with to a result if are certain or People respect they nearly high that their are aware of conduct will cause result. If probability they aware of substantial act with to the risk, they “recklessly” respect certainty the risk The in the result. narrow distinction lies awareness of of —“high The broader is versus “substantial risk.” distinction probability” significant. knowing conduct is viewed as more considerably Purposeful ” "wilful, or “careless.” while reckless conduct less is at most History Culpability, A Distinctions in Criminal [Robinson, Brief of Hastings (footnotes (1980) omitted).] L.J. 818-19 Code, closely tying concepts knowledge act, purpose respect equates with of a homicidal result conduct, this conduct “willful” which is the conduct that with capital as one of Senator Russo described the characteristics of construing job homicide. is to Our statutes make sense and not possible the whole a statute insofar as to construe Valentin, individual sections isolation. See 105 N.J. State (1987). 20-21 make sense of the whole of the We better provisions creating homicide of the Code another form of murder. sum, highly unlikely I that the conclude because it
Legislature intended would have the anomalous construction murder, contemplate one the Code that would two forms I capital non-capital, believe that one and because Legislature capital provi- have intended that the murder would sions of the construed to accordance with consti- Code be requirement, an I would hold that for accused to be tutional (2), 2C:ll-3(a)(l) guilty under the offense found of murder subject punishment, he must be capital that will the accused *85 object have had the conscious adjudged jury either practically the of the victim or have certain cause death been high probability of the conduct would cause or aware death. bodily of
In murder the infliction serious cases which factor, charge should the injury probative is a the trial court death, may the jury that whatever conduct be that caused the jury requisite must that the defendant mental find have (conscious purpose object under state the Code—either de- (practical sign) knowledge certainty) that death will result. many bodily In if injury, cases the intent to inflict serious death, such of concerning demonstrative of a state mind respect will demonstrate recklessness with to the conse- quence manifesting death extreme indifference charac- aggravated manslaughter. Michael, teristic Wechsler & See supra, 37 Colum.L.Rev. at 709-10. joins opinion.
Justice GARIBALDI in this HANDLER, J., concurring part dissenting and part. today capital Court reverses defendant’s murder convic doing so,
tion and death sentence. the Court determines death-eligible only can if a defendant be considered he kill, murdered with intent to and if he committed the murder narrowing scope his own conduct. This of the death-eligible significant step class murders is a toward remedying capital the constitutional infirmities that burden the penalty corollary significance, murder-death Of statute. Court, in departing Supreme as it does from the United States Arizona, Court’s decision in Tison v. 481 U.S. 107 S.Ct. (1987), recognizes unreliability L.Ed.2d inadequacy precedent development capital- of federal in the jurisprudence. murder reasoning points.
I subscribe to the Court’s on these essential Moreover, judgment Court, I concur in I while of the would Jersey capital also reverse because the New murder-death invalid, penalty statute is unconstitutional and enacted both as applied. See, Ramseur, e.g., and State v. (1987)(Handler, J., dissenting). I feel constrained to maintain repeat position evolving this because unsettled nature of the governing unique prosecu- law capital-murder these
145 See, Rose, (1988)(Handler, J., e.g., tions. State N.J. (II), (1988) (Handler, J., dissenting); Bey State v. dissenting). continuing
I in separately write this case to address two issues, “knowing” troublesome the status of murder as a capital prosecutorial capi- offense and the role of in discretion prosecutions. tal-murder The resolution of these two issues requires, submit, I “knowing” murder, the exclusion of one that kill, death-eligible murders; from the class of it intent lacks uniform, govern demands also prose- statewide standards to determining cutorial discretion in proper- whether a case should ly prosecuted capital as a offense.
I. holds, law, The Court now as a matter of state constitutional murder, that the kill capital intent to is an essential element of distinguishing capital Moreover, murder from other murders. imposition penalty of a death for intentional infliction of bodily injury serious in disproportionate. that results death is majority now rules that this violates the State Constitution. agree. Ante at 88-89. I case, important holding
In the context of this this does not sufficiency insufficiency rest on the of the evidence notes, aptly intentional murder. As the Court the State’s was, arguably, evidence in this support case sufficient to jury’s determination that the defendant murdered the decedent cannot, however, with the intent to kill. We have confidence interpretation jury’s verdict. The confusion prosecution type of this case of conduct could about what purposeful knowing might constitute murder and con- what aggravated manslaughter jury’s stitute has rendered the ver- suspect. dict bodily provision The inclusion of the serious harm capital in the charge jury definition murder and in the to the may have jury’s influenced the deliberations this case be- cause the evidence of defendant’s intentions was inconclusive *87 may de-emphasized jury’s because this definition have the offense, non-capital manslaugh-
consideration a aggravated of ter. majority’s
I also concur in the determination to find that the requirement by showing “own conduct” must be met “the that actively directly participated defendant in the homicidal interpretation act.” Ante at 97. I that the clearly believe Legislature’s reflects the intent to narrow the class of death-eli- gible by excluding would, pre-Code, murderers those who have accomplices. been narrowing considered I commend this of death-eligible ruling class of murders and the that this determi- nation by jury guilt phase must be made at the of its stressed, repeatedly deliberations. As I have the determination particular of whether the homicide falls within of the class death-eligible part murders must be made a constituent of the process in guilt, apart determination of and it must done jury from and is thereafter directed consider before whether the death appropriate particular sentence is for the Ramseur, defendant. supra, See State v. at 387-94 N.J. (Handler, J., dissenting); (II), Bey supra, State (Handler, J., dissenting). 215-216 must, however, may I what stress be more than a semantical difference; majority, unlike the I require view the own-conduct a capital ment as material of element murder rather than aas “triggering Moore, mere (quoting device.” at 99 Ante State v. (Law N.J.Super. Div.1985)). Court, adopt The ing Moore, the reasoning of determines that the commission of a homicidal act the defendant’s own is an conduct is, however, of nothing element the offense of murder. There language of suggesting N.J.S.A. 2C:ll-3 that the own- requirement anything conduct is less than a material element capital the offense of requirement assuredly murder. This satisfies the understanding Code’s of “a material element” of a requirement itself, crime as a solely that relates to the crime 2C:l-14(i), part N.J.S.A. and includes “conduct” that is a of the “definition of the required offense” and also “establishes the (b). 2C:l-14(h)(l)(a), culpability,” Since de N.J.S.A. kind it is “capital murder” unless fendant cannot be convicted conduct,” there the homicide was his “own established requirement that this is a escape from the conclusion is no Hence, capital murder. “material element” of the crime of more, less aspect capital murder is no no “own-conduct” requirements in capital murder than the material element from this is volving “purpose” “knowledge.” What follows clearly the own-conduct jury must understand murder, subject capital element of requirement, as a material prove every continuing each to the State’s burden charged beyond crime a reasonable doubt. element of death-eligible class of murders thus narrowing *88 It and constructive. will by the Court is both essential achieved focusing capital of the murder-death go far the aim toward murderer, it truly egregious and will penalty statute on the arbitrary dispropor- the risk of an significantly decrease Unfortunately, by penalty. imposition of the death tionate the class of death-eli- “knowing” murder from failing to exclude implications of murders, the majority the fails to cohere gible of mind of holding culpable that the state its well-reasoned constitutionally indispensable to establish kill” is “intent to implication majority’s of the my opinion, capital murder. showing requires a of the State Constitution decision that murders committed capital kill” for murder is “intent to certain” to result knowledge “practically death is only with capital to the level of cannot rise from the acts of the defendant not, view, greatest my in reflect the do murder. Such murders possible greatest culpability justify that would level of sanction, death. penal namely, murder would be perception capital
This constitutional in statute Jersey’s prior capital-murder New consistent with less authorized for crimes penalty was not which the death Ramseur, su- first-degree murder. See State v. severe than J., (Handler, dissenting). Under 106 at 387-90 pra, N.J. that were statute, death-eligible murders were those former wait, “perpetrated by poison, lying by any means of or in or willful, premeditated killing, other kind deliberate perpetrating attempting perpetrate committed [were] 1965, 212, c. 1; 2:138-2; certain felonies.” See L. R.S. L. § 238, L. 1917, 1, (1924 52-107); 1898, 235, c. p. Supp. c. § § (C.S. 107). p. 1780, p. 824 The former statute’s focus § § required exception on murder that with the intentional during the certain murders course of felonies and murder officer, required prove a law enforcement State was operations first-degree three to establish mental order mur- deliberation, premeditation, der: and willful execution of the Anderson, plan. (1961). See State 496-97 All presumptively degree other murder was second murder —a non- capital regardless of the circumstances murder. offense — Indeed, first-degree murder prior our statute even most under sentence, but could defendants were subjected to a death exercise a non prevailing practice vult plea. under See discus- sion at 154. infra defining
By first-degree culpability murder terms of through demonstrating pre-medi- operations manifested mental intent, expressed goals tation or the former of the statute one “greater justice through code: new individual a closer Knowlton, Com- guilt culpability relation between ...” Code, Rutgers The Upon Jersey ments New Penal L.Rev. (1979). relationship guilt, culpability, between and the appropriate punishment recognized by level of is squarely this Indeed, explicitly Supreme Court. majority endorses *89 ingrained legal “[d]eeply Court’s statement in our tradition conduct, is purposeful the idea more the more offense, and, therefore, severely serious is the the more it Arizona, supra, Tison v. ought punished.” U.S. to be 481 at 107 S.Ct. 95 Ante L.Ed.2d 143. at 77. This system Court has also stated that of criminal laws is “[o]ur predicated usually punishment imposition on the of based on Indeed, ranking intent. our of defendant’s Code’s crimes by degree places those committed crimes with intentional con- highest degree crime, duct as the of for which the defendant is punished.” Ramseur, severely supra, most State v. 106 N.J. legislature The at 207-08. Ante at 77. itself effectuated this through of the of principle adoption separate culpability levels 2C:2-2(b). in applying principle described this N.J.S.A. homicide, murder, knowing murder, “[p]urposeful ag criminal gravated manslaughter manslaughter and reckless are criminal descending culpability.” homicides lie on a scale of State Grunow, N.J.Super. (App.Div.1975), aff'd, (1986). point These considerations all one basic principle: severest sanctions should be reserved for actors exhibiting culpable the most mental states.
Although “knowing” are “purposely” yoked often to states, gether culpability they relative to other nevertheless are of In the of two different measures criminal intent. context homicide, murder, “purposeful” criminal commission N.J.S.A. C:2-2(b)(1), form, culpable closely corresponding 2 is the most i.e., premeditation, requirement to the former rea mens murder, however, Knowing culpable to kill. a less state intent murder, purposeful requirement premedita contains than no deliberation, quali mental tion or willfulness and states historically justified ties that have the ultimate sanction of the penalty. death Court, refusing knowledge capital in to winnow out from
murder, effect, homogenizes distinctly different states of While, culpability, culpability. criminal terms of the Court’s seemingly equates only purpose knowledge, it fails result Thus, equation. weighing from the to remove recklessness culpability, disquieting rejection the Court’s what about knowledge purpose and any constitutional distinction between thereby is its failure to understand that it obliterates knowledge distinction between and recklessness.
Further, in determi- culpability, terms of criminal Court’s permits equated purpose, to be with which nation recklessness form murder. is the critical characteristic most serious *90 Supreme did in it clearly This is Court Tison when what adopted philosophy, this viz: disregard knowingly engaging for human life reckless implicit
[T]he highly criminal a risk of a activities known death carry represents culpable making mental a state that be into account state, mental taken may capital sentencing judgment though its not natural, when conduct causes also lethal result. inevitable, at U.S. S.Ct. 1688, 95 L.Ed.2d at 144.] [ 481 157-158,107 Ostensibly repudiates philosophy it Court this when' disapprovingly proportionali- states “as a matter of federal ty principles capital punishment may imposed ... be on one ‘recklessly who ... can characterized as hu- indifferent to ” Nevertheless, by “knowing” including man life.’ at 75. Ante murder, capital murder in the the Court class does truly separate proportionality from the princi- itself “federal ples” professes reject. that it any genuine disagreement
There with was not the observa- knowledge recently, tion made distinction between “[t]he recklessness, ‘practical certainty’ between of a result and disregard’ unjustifiable ‘conscious of ‘a substantial and risk’ result, best,” is a one at that “the subtle distinction ‘knowing’ ‘aggravated manslaughter’ between murder and turns in on ‘practical close cases ... the difference between certainty’ inflicting injury that one is with a substantial risk of disregard death and a conscious of a substantial risk of death that manifests ‘extreme the value indifference to of human ” Rose, J., supra, (Handler, life.’ State v. at 562-563 dissenting). knowledge Because distinction between nebulous, I it possible recklessness is so do not believe knowing capital include a non-intentional but murder murder without creating an intolerable risk that reckless murder will capital also become murder.
Aggravated manslaughter now as a exists lesser-included knowing (Arria- offense of murder. See v. Crisantos State gas), (1986). Knowing itself incorpo- N.J. 265 murder can can, degree rate a given of “indifference” that on a state facts, aggravated manslaughter serve to make the functional *91 equivalent knowing of Palmer, murder. See State N.J.Super. 349, (App.Div.1986) (endorsing a of definition of aggravated manslaughter element of “circumstances manifesting extreme indifference” as conduct “practically cer- any tain to kill who might happen one in to be the way.” added)). (Emphasis Conversely, evidence, on identical aggrava- manslaughter ted encompass can a quality of indifference that knowing could transform aggravated murder into manslaugh- Rose, ter. supra, J., See State v. (Handler, N.J. at 562-567 dissenting). stressing the similarities between intentional murder and
aggravated manslaughter, concurring Justice O’Hern in his opinion requires actor, observes that the latter “[t]hat [the] realizing that, probable, death was rather fully aware of nevertheless committed the act T with state of mind that said less, all, couldn’t care I don’t care I at don’t care the least bit dies, if person though this even I actmy possesses know that a ” high degree probability causing person’s death.’ goes 139. The to say: Ante at Justice on conduct of the “[t]he but, actor could be as as scope broad human to behavior” capital constitute murder that conduct “would have to include” almost, a “state of quite, mind that is but not same death____” purposely causing knowingly (em- causing death or added). phasis “almost, quite Ibid. but not the same” might acceptable test distinguish suffice and murder from manslaughter penal consequences when entail incar- test, however, cannot, ceration. That in my opinion, be used degrees determine culpability justify of criminal death as the just penalty for a homicide. offenses, knowing aggravated
These
manslaugh-
murder
ter,
any given
are couched in terms that in
can
case
render the
Code,
indistinguishable.
Jersey
two
See New
Penal
II:
Volume
Commentary,
Report
Jersey
Final
of the New
Criminal Law
Commission,
Cannel,
Revision
(quoted
Jersey
New
245-46).
(1987),
Hence,
Criminal Code
Annotated
knowing
capital
inclusion
murder as a
offense creates
arbitrarily
necessity
irrational-
function
system that will of
reliably
consistently
homicides
exclude
ly because it cannot
and, in
may
only aggravated manslaughter
constitute
truly
are not
different
underlying
culpability,
criminal
terms
aggravated manslaughter.
from
knowing
appear
Moreover, it
that the inclusion of
does
capital
expressly
was itself
murder as a form of
murder
I have
omis-
impliedly
Legislature.
noted the
intended
capital
penalty
enactment of the
murder-death
sion
*92
aggravated manslaughter
of
any explanation why
statute of
distinguishable
knowing
v.
an
from
murder. State
now offense
Further,
(Handler, J.,
Rose, supra,
dissenting).
at 563
112 N.J.
knowing
support
that
murder was not intend-
for the conclusion
the state-
capital
to
murder can be derived from
ed
constitute
legislation that this
sponsor
capital
of
murder
ment
in
statutes
capital murder statute is “not as broad” as
State’s
states,
death-eligible
part
are
some other
in
because defendants
murder, willful, pre-
first-degree
of
only
guilty
if
...
“found
murder,”
closely
degree
corresponding
a
murder
meditated
Capital
only
state of mind.
Punishment
“purposeful”
with a
Judiciary Commit-
Hearing
Act:
on S.112
the Senate
Before
(1982)
1.
tee
sum,
noted,
Arizona, supra,
v.
rejects
as
the Court
Tison
127,
1676,
137,
L.Ed.2d
107
95
ante at
481 U.S.
S.Ct.
75-
ruled
it
not
Supreme
77 in which the
Court in effect
that was
to kill to obtain a conviction
essential that the State show intent
155,
1687,
Id. at
capital murder.
I underlying consistent with the premises of the majority opinion Jersey’s capital and with New murder tradi- tions that as a matter of state constitutional doctrine “know- ing” murder not be should included the class the death-eli- gible murders.
II. significant case, A issue this the majori- addressed ty, prosecutorial involves twin concerns of unfettered dis- and disproportionality cretion I recently of sentence. Most dissenting my opinion commented on this in State Koeda- tich, (1988). closely 265-271 These are concerns overly death-eligible to the related broad class murders attributable both lack of a narrow definition of this class *93 problematic and the application aggravating to factors. The absence of governing prosecutorial uniform standards discre- heightens tion uncertainty inconsistency the in the adminis- capital of the Derivatively, tration murder statute. it loosens guidelines, complicates immeasurably the discretionary re- sponsibilities jury, inevitably compounds the risk of arbitrary capricious death sentences.
This uncertainty by and arbitrariness is exacerbated unstruc- Here, plea-bargaining practices. young tured three men with equal culpability participated in the murder of Paul Matusz. escaped Two of them trial and received custodial terms pleading guilty charges brought against some them. not; this, The defendant did because of he is the one who 154 This this shared crime with his life.
may pay have to availability guilty pleas on a random that the demonstrates prosecutorial standards to control and the lack of uniform basis dispropor- degree of sentence engender an intolerable discretion tionality.
A. lesser, non-capital plea in this case—the What occurred practice found by co-defendants—is reminiscent of the offenses capital prior under our murder statute. unconstitutional designed plea that a Jersey statute was so former New murder penalty range removed the death from of non vult While this imposed on the defendant. sentences that could be effect, however, Supreme Court asserted was in statute “needlessly encour- unconstitutionality statute that of a federal forcing jury defendants aged” guilty pleas or waivers assuring nothing guilty, thus worse pleading choose between guilt or asserting right their to contest imprisonment, than incurring possibility of the degree guilt, thereby 570, Jackson, 390 penalty. v. U.S. death See United States (1968). 1209, 1217, 138, 583, 148 88 20 L.Ed.2d S.Ct. infirmity of this recognize the constitutional We slow to were 263, Forcella, 1968, 274-81 practice. v. State omitted), the death history we ruled that neither (subsequent plea provision of our statute was penalty nor the non vult However, in Funicello v. years three later unconstitutional. 859, 948, 2278, reh’g 29 L.Ed.2d Jersey, New U.S. S.Ct. 31, (1971), den., 30 L.Ed.2d 404 U.S. S.Ct. Jersey’s penalty death Supreme Court struck down New then de disposition cited This Court summary Jackson. unconstitutional, finding Jersey penalty death clared the New had found unconstitu that it fell the area that Jackson within plea continued after (although tional the non vult imprisonment). to life See simply defendants were sentenced curiam), Funicello, (per cert. den. 60 N.J. 67-68 State
155 Jersey Presha, 942, sub New 2849, nom. v. 408 92 U.S. S.Ct. 33 (1972). L.Ed.2d 766 recognized
Funicello had Jackson been narrowed Supreme intervening Court’s decision in Brady v. United States, 742, 1463, (1970). 397 90 U.S. S.Ct. 25 749 L.Ed.2d Brady held that such “dilemma” statutes did not violate a defendant’s fifth or sixth if rights amendment non vult plea guilty intelligently voluntarily made, was and even if the possible penalty by defendant faced a death contesting guilt. 160, 25, 37-38, Alford, See also North v. 400 Carolina 91 U.S. S.Ct. 167-68, 162, (1970) 27 (upholding L.Ed.2d 171-72 statute in , defendant a penalty exchange which received lesser for a plea). guilty did Brady majority say not whether death significant motivating could be so a factor that the fifth amend violated, ment very but indicated that the defendant bore a heavy 747, 1468, burden. 397 90 Brady, See at 25 U.S. S. Ct. 755, approving citing, Jackson, L.Ed.2d at supra, from Laboy Jersey, F.Supp. (D.N.J.1967) v. New 581 (guilty plea despite voluntary held the fact greatly that defendant was upset by prospect penalty). of the death
The federal court’s decision in
does
Brady
not limit the
protections granted by State constitutional sources. Some
recognized
prosecutor’s
states have
that the
power
use of the
bargain
for guilty pleas
capital
prosecutions
murder
can
See,
arbitrary
unjustifiable
lead to
e.g.,
results.
Common
Colon-Curz,
150, 163-64,
wealth v.
393 Mass.
470 N.E.2d
(state’s
(1984)
newly
penalty
enacted death
law violated the
penalty
state constitution because the
death
could
imposed
trial,
jury
coercing
after
guilty pleas
a
thus
impermissibly violating
rights
jury
defendants’
to demand a
against self-incrimination);
trial and
Frampton,
State v.
(1981) (where,
statute,
pursuant
cause it burdened jury as a result of penalty imposed could be by jury since death guilty rape). of of verdict provisions penalty the death of
Following the of invalidation statute, the issue of whether this Court dealt with the former coerced non vult pleas unnecessarily still the former statute v. State manslaughter. In guilty only of from defendants Jersey, 439 Corbitt, aff'd, Corbitt v. New (1977), N.J. 74 379 492, (1978), petitioner S.Ct. 212, U.S. 466 99 58 L.Ed.2d Jackson, any sys unsuccessfully argued, on the basis penalty a lesser the defendant received tem under which This Court guilty plea unconstitutional. exchange for a was replete situations process criminal ... is with noted that “[t]he judgments’ as to which course making of difficult requiring ‘the follow,” Corbitt, McGautha v. supra, 74 (quoting at 398 S.Ct, 1470, California, 213, 1454, U.S. 183, 28 L.Ed.2d 402 91 thought (1971)), were never and that such dilemmas 711 rights. constitutional invade Corbitt however, considerably
Significantly, Court choice involved the sanguine the dilemma when one less about concluded: penalty. death Court for a it is our considered view that Jackson today is only authority Finally, death sentence if of a situation where a defendant faces prospect possible guilty. against term if he the alternative of merely prison pleads convicted as language emphasising the awful Jackson have hereinabove stressed We choice of a course of action may exerted a defendant whose upon pressure Jackson, time of the Court was undoubtedly already mean his death. At the to lead to the later broad invalidation to the considerations which were sensitive Georgia, v. 408 U.S. S.Ct. 88 Furman 2726, of death penalties S.Ct, Illinois, supra, Whitherspoon (1972). 391 U.S. L.Ed.2d Cf. 20 L.Ed.2d [1968], (1) foregoing, Jackson we conclude: authority summary guilty when a trial and possible confined to the case of a choice between plea (2) is the death of the former, penalty; of the former, consequence (1), goes encour- of Jackson situation any if the beyond alternatively, authority agement non vult under our statute and or inducement of a defendant plea right a needless or to trial is not the result of unnecessary waive his thereby encouragement highly and the one, useful and desirable device but a procedural infringement is therefore not an impermissible defendant’s Fifth Amendment rights. N.J. [ 74 399-400.]
Although this interpreting limiting Jackson, Court was supra, ignored it Brady’s subsequent narrowing of Jackson in penalty appeal, the death context. On the United States Su- Court, decision, preme Corbitt, in a 6-8 noting affirmed that: *96 [although agree Jackson we New court the need with the Jersey rationale is those limited to cases where a avoids of the plea any possibility death fact that under material the is a penalty ... it New Jersey law the maximum for murder is life not death. penalty imprisonment, [Corbitt v. New 99 S.Ct. at Jersey, supra, L.Ed.2d. at 473.] at The pressure undue in capital involving the context of a case the death penalty acknowledged the Court and criticized in in present by Corbitt was this case. It was used indeed the prosecutor pleas guilty the obtain the co-defendants. Facing trial, the penalty jury they death in a assured them- However, selves of by pleading guilty. custodial sentences guilty is not pleas vice that the of these co-defendants were coerced, unconstitutionally rather that but the sentences that emerged prosecution have unequal dispar- from this are so plea bargain directly ate: the in results custodial terms for the indirectly co-defendants and in the death sentence practice deep defendant. This is of concern there are because prosecutor, no standards guide whatsoever to and thus the courts, determining fair, in whether occurred here is what consistent, discretion, guided rational. the absence of bespeaks result strongly disproportionality. of intolerable
B. propensity This case is further of the illustrative toward disproportionality prosecutorial that inheres in uncontrolled dis- cretion. This concern increases in this case because supporting capital nature the evidence borderline a murder perception prosecution. disproportionality strength- The is growing empirical from support ened statistical evidence being arbitrary in penalty death administered an
that the capricious manner. appeals, Defender has the Public capital
In several
murder
gathered
analyz
in
brought to our attention statistical evidence
penalty
murder-death
capital
administration of the
ing the
Reimposition
Capital
study, entitled “The
statute.
This
1982-1986,”
Homicide Cases from
Jersey:
Punishment
in New
Defender,
Bienen,
Deputy
and Neil
by Leigh
Assistant
Public
Wiener,
Center for
Alan
Research Associate
Sellin
Senior
University
Criminology
Law at the
in
and Criminal
Studies
(hereinafter Study
Report),
acknowledged
Pennsylvania
Koedatich,
supra,
The Public Defender’s an indication that the absence prosecutorial real, poses of controlled discretion imaginary, Study provides initially risks. The us at reasonably least with a objective framework within which to think about and confront complex prosecutorial the issue of uncontrolled discretion an aspect The proportionality.3 Study shortcomings, have may data, particularly but the with to county-to-county reference Study attorneys’ designation 3The relies on the defense of a case as "death- Defender, possible.” According Preliminary Report the the Public the compiled data base was from interviews with counsel. defense The interviews precise were the intended "record information on characteristics of the victim, homicide, result, legal defendant and the circumstances of the the stages processing.” interviewing process the of case The is described as follows: completed attorney person aWhen case is the defense is interviewed in by attorney using the field the structured interview schedule. The defense him____ attorney is interviewed the case file field with before accusation, attorneys copy judgment ask for a indictment or sheet, they copy presentence a sheet and verdict also ask for report police report____ and the initial are These documents then filed verification____ study case number and used recording points addition to data on structured interview schedule, attorneys probe the field ... on the individual circumstances of case____ case, capital each If the not a but there case was was a factual factors, serving why, attorney’s opinion, basis for notice of in the defense designated capital prosecutor. was the case not case were What important issues in the case. What was the nature of the evidence. offers____ plea How credible were the State witnesses. Were there How case, strong prosecution’s prior was the and how was case structured used, plea. attorney trial or Was conducted there voir dire significant pretrial publicity. strategies. What were the defense What was *98 prosecutor’s theory of the case. Did the defendant make a statement important particular and was the statement admitted. What this particular Why disposition. homicide case. case did the result in this 1987) [Study, Preliminary (January Report at 57-59.] 160 prosecutorial on to the for controls point need
discrepancies, Koedatich, 269-270 supra, N.J. at discretion. State See dissenting). (Handler, J., homicides;4 Study
The uses a data base of 703 of the aggravating served a notice of factors prosecutors involving (18.6 703), percent cases 131 defendants capital 94 of the case whom ... went to trial as a case a before (the judge jury judge factor was neither by dismissed by prosecutor). cases, (73.4 nor withdrawn Of these percent) in a capital eligible resulted conviction for death by penalty phase murder a trial judge followed before a jury. cases, (36.2 these 69 percent) Of in the death resulted Overall, being imposed. cases, sentence of the 703 homicide percent 18.6 were recommended for the death cases] [131 penalty prosecutors by serving a formal notice of statu- (cases tory aggravating designated death-eligi- factors were ble), (94 cases) percent trial, 13.4 capital resulted a 9.8 cases) percent (69 penalty phase went to ... percent and 3.6 ... being imposed. resulted in the death sentence I, of the New Jer- Report Part “Characteristics Study, Interim pur- Defender’s data also sey at 5. The Public Homicide Cases” however, (57.5 percent) show, the '703 cases port statutory ag- least one death-possible because there was were alleged. Only 131 of that could have been gravating factor homicide, cases of of "all except a statistical 4The offers comparison Study August 1982, the manslaughter, after where the occurred homicide vehicular in New Jersey.” punishment effective date of reimposition capital charge "formal for a homicide in the data base are criteria for inclusion charge at the final office and a disposition offense prosecutor's I, Part at APPENDIX A-l —Method- Interim trial court level." Study, Report including ology. the assessment of whether case, data on the The specific serving aggravating is assembled factors, existed for notice factual basis interviewing defender, who counsel or represented "the attorney, private public sentencing.” Id. trial or at the defendant at plea
161 death-possible (82.4 cases percent) were charged capital prosecutions.5 murder
Thus, according
data,
to this
there are 278 eases in which the
prosecutor
had factual
seeking
basis for
penalty
the death
but
declined
so.
suggests
to do
The Study
that one factor that
correlates with the
prosecute
decision to
is
policy
of the
prosecutor
county
of
prosecution
occur;
which
is to
policies
these
differ from county
county.
Another factor is
the race of various classes of victims and defendants.
See
discussion
at 168-164.
infra
Report
suggest
The
does
county prosecutors
have
adopted differing philosophies;
result,
aas
there are no uni-
form prosecutorial standards. The lack
prosecutorial
of
uni-
formity in the absence of uniform statewide standards should
surprising.
The issue
in State
length
was discussed at
Smith,
Willie E.
202 N.J.Super.
(Law
Div.1985),
in which
specifically
court
challenged
county prosecutor
to ex-
plain the
discretionary
basis on which
decisions were made to
prosecute capital
prosecutor’s
cases.
explanation
was less
satisfactory,
than
highlight
greater
serves to
the need for
control
prosecutorial
over
discretion.6
"death-eligible"
simply
cases
5A
cases could be
whether
reliable indicator
aggravating factors is
The Public
are like ones in which a notice of
served.
however,
“death-possible”
Study,
of a
has
characteristics
Defender’s
allowed
case,
given
essentially by
counsel in a
and the
case to be defined
the defense
Study
“death-possible”
charge that from
data to make the serious
uses these
1982-1986,
serving
basis existed for
a notice of
cases in which a factual
factors,
aggravating
prosecutors actually served such a notice on
validity
implication of this
odds are
statistic —that the
defendants. The
sought
great
some cases
death sentence was
that at least
in which the
penalty
factually indistinguishable
cases in which the
obtained are
from
dependent
sought,
system operating arbitrarily
not even
thus that the
—is
many death-possible
accuracy
cases existed.
on the
data on how
highly
passing
6The
of more than
interest. The
Smith case is
instructive and
(the
defendant,
charged
legislature's
juvenile
capital
amendment
with
murder
issue),
proscribing
juvenile
capital
later
see
execution
offenders
mooted
(I),
(1988), challenged
County
Bey
the Essex
State v.
C. *101 capital supporting the evidence nature of The borderline case, lack of standards as well as the in this prosecution murder troubling in discretion, more is even prosecutor’s to control provided requested none According information. to a brief filed case, responded in this the court in a letter: “The Court finds the statement flagrantly inadequate____ submitted displeased to be The Court is with what perceives response it part to be a cavalier on the of the Prosecutor’s indeed, attorneys Office— it is difficult to believe that the for the State legitimately anticipated cursory that so and deficient a statement would be acceptable to the Court." The Prosecutor’s Office followed with a more description procedures capital According detailed of its internal in cases. memorandum, prosecute given revised the decision whether to homi- death-penalty depends cide as a case on the Assistant Prosecutor’s assessment aggravating proven. that one or more factors can be homicides; explicit among comparison that no is made It is clear decisions case-by-case According arguments presented are made on a basis. to this Attorney capital appeals, Court on behalf of the General in recent murder there standards, is no commitment that office to the need for uniform nor is there any non-uniformity among prosecutors any sense that constitutes kind of a problem penalty in the provides administration of the death statute. This independent empirical support for the Public Defender’s thesis that there exists high probability arbitrary prosecution case-by-case county-by- aon basis, county stemming prosecutorial from an absence of uniform standards. I his victim that defendant black and white. light the fact any racial bias acknowledge there is no actual evidence Nevertheless, the sta- in this case. or discrimination invidious disregard indicates that we should tistical evidence potential for racial bias. Koedatich, supra, v. N.J. at 266-267 State in
As noted McCleskey v. (Handler, J., dissenting), Supreme Court (1987), 95 L.Ed.2d 279, 107 Kemp, S.Ct. U.S. claim, studies, that the petitioner’s based on statistical rejected equal protection punishment system violates Georgia capital appli by discriminating in guarantees eighth and the amendment Supreme The felt according to the race of the victim.7 Court cation no discrimination McCles the studies showed that because case, equal-protection his claim. key’s this foreclosed individual persuaded strongly disagree that should be influenced I we Koedatich, supra, State v. analysis. federal Court’s Constitution, J., (Handler, dissenting). Our State at 267 concern about the subtle light pronounced of our and consistent discrimination, scrupulous demands the most assess evils Rasmeur, supra, 106 N.J. at 426 State of such claims. ment (Handler, J., dissenting). race of the Study indicates that
The Public Defender’s prose- case is may significance in whether a victim be of some offense, involving a with cases white capital-murder cuted as a death-eligible progress to the class than likely victim more data, according involving Hispanic those victims.8 black designated Defender, suggests that cases are to the Public also person of a is more there indicated that a black murderer white 7The studies *102 person, likely and than a black murderer a black to be sentenced to death involving penalty prosecutors of the cases black seek the death 70% involving black defendants of the cases defendants and white victims 15% victims, 285, 107 Kemp, supra, McCleskey 481 U.S.at S.Ct. at and black L.Ed.2d at 275. 8According Study, involving comprise of all cases white victims 40.5% to the death-possible percentage cases but substantially increase their share to 53.1% by the race of the is influenced death-eligible in a manner victims, victim a black defendant/white with defendants death-eligible than a designated likely more to be homicide Indeed, the Interim homicide.9 defendant/white victim white of the concluded its discussion Report of the Public Defender as follows: racial statistics progression probabilities, point there is examination of case
At this initial indication, then, comparative probabilities in the of differences some capital deeply Jersey case more into the New homicide defendants will move system processing of the defendant and the based on the race characteristics victim. I, Findings” Report [Study, Part “Research at 10.] Interim differences, indicating some correlation be- These statistical and the decision and defendant the race of victim tween aggravating factors in a death- a notice of prosecutor to serve case case, greater concern this because possible are of pronounced than County is more disparity in Atlantic statistical Supra at 163-64. Although the information is it is statewide. that all (100%) death-possible tentative, study reveals pattern became defendant/white victim involving a black cases involving a black only of those death-eligible, whereas 25% involving a of those homicides victim or defendant/black 20% Study, death-eligible. became defendant/white victim white death-eligible. contrasted with cases This increase is to be of the cases that are cases, victim, death-possible comprise involving all but 44.8% of a black which involving Hispanic Similarly, only death-eligible victims cases cases. 38.5% cases, death-eligible death-possible cases. comprise but 8.4% of 14.7% involving from victim would advance a white Because the odds that case substantially greater death-eligible than in cases involv- death-possible to were victims, disparity Study points racial in the ing Hispanic to some or black seeking penalty in prosecutorial the death plenary discretion over exercise of I, Study, Report CP2. death-eligible Part at TABLE cases. Interim being highest probability of had the victim cases 9Black defendant/white order, followed, decreasing (.85) white death-possible defendant/white (.52), Hispanic (.62), victim defendant/His- black victim defendant/black cases, (.50). regardless defendant of whether the panic White victim victim white, advancing highest probability to the death exhibited the was black or eligible stage. at TABLE CP3B. Id. *103 166 noted, I, As Report Part at TABLE CP11B. there are
Interim presented, particularly in that the difficulties with the data “death-possible” determination of whether a ease was critical dependent on information furnished defense counsel. heavily Nevertheless, light in of uncontrolled Supra at 161 n. 5. arguably prosecutorial discretion and the tentative nature of case, capital murder in the instant this supporting the evidence emphatic apprehension. must cause rather difference question prosecutorial it important, Most discretion as utterly potential for racial bias cannot be dis- relates to regarded Dissenting McCleskey Kemp, in or discounted. emphasis Blackmun stated that Court’s on
supra, Justice
“[t]he
procedural safeguards
system ignores
in the
the fact that
process leading
during
are none
the crucial
there
whatsoever
trial,”
366,
up
1805,
to
481
at
107
U.S.
S.Ct. at
D. Prosecutorial discretion in this case is troublesome not race, respect respect apparent with also with to the lack but proportionality dramatically differing evinced sen- *104 In tences received Gerald and his two co-defendants. setting, degree ordinary criminal we can countenance some of sentencing capital sentencing, In disparity. the context of however, system prosecutors leverage that affords to imprisonment possi- to choose force defendants between and a improvement prior death sentence is no over the unconstitu- ble system tional that forced defendants to choose between a non plea possible vult and a death sentence. v. Funicel- See State (1972). lo, supra, 60 N.J. Ramseur, expressed I the view that under state State capital
constitutional and fundamental doctrines our fairness guid- penalty provide statute did not sufficient murder-death genuine arbitrary capricious- ance to overcome the risk of and pointed global I that the applications. 106 at 405-06. out N.J. guilt statutory definition of murder and the fusion of the determinations, sentencing application with the simultaneous aggravating eligibili- death statutory factors to determine both sentence, of coherence and ty and the death robbed statute guided objectivity. emphasized I that the absence of Ibid. prosecutorial mandatory proportionality effective discretion I the risk of Ibid. reiterated review exacerbated arbitrariness. Koedatich, supra, these in at 264-271. views State v. urge guided prosecutorial I discretion is continue to integral penalty to a death scheme. As was noted valid Blackmun, Marshall, in in and Stevens dissent McCles- Justices guidelines Kemp, supra, “the establishment of key v. appropriate Attorneys Assistant District as to the basis for steps prose- in the exercising their discretion as to the various consistency. at cution” is needed the interests of U.S. (Blackmun, J., 325-26 95 L.Ed.2d at S.Ct. recasting dissenting). comprehensive In the absence of a defects, guided statute to overcome its current constitutional reduce, prosecutorial to if it discretion will serve at least even eliminate, dispropor- arbitrary application cannot the risk of sentencing. tionate
III. defendant’s conviction join I Court’s decision to reverse reasoning our I its that under and death sentence. endorse impermissible permit to it is an offender Constitution State sentenced to death without capital murder and be convicted agree that one state of intent kill. I therefore whose bodily injury proves fatal cause serious only mind I to the also concur exposed not be death sentence. should I requirement. interpretation the “own conduct” the Court’s would, moreover, expressly that under the State make certain kill, merely kill who intend to Constitution offenders acts, consequences fatal should knowledge of the their with exposed to the death sentence. capital *105 addition, should find the emphasize I that the Court statute because penalty murder-death unconstitutional prosecutorial discretion and guide lack of standards uniform complement in order develop the failure such standards sentencing. proportionality and assure part part. dissent Accordingly, I concur JJ., O’HERN, HANDLER, concurring GARIBALDI in the result. WILENTZ, Justice
For remandment —Chief reversal and POLLOCK, CLIFFORD, HANDLER, O’HERN, and Justices GARIBALDI and STEIN—7.
For affirmance —None.