*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW HARRIS, v. JOSEPH DEFENDANT-APPELLANT. Argued July October 1994 Decided 1995. *8 Blum,
Mordecai Garelick and Marcia Deputy Assistant Public Defenders, (Susan argued Reisner, appellant the cause for L. Defender, Public attorney). Connor, Jr.,
Joseph Prosecutor, argued Assistant the cause for (W. Jr., respondent Murphy, Prosecutor, Michael County Morris attorney). Bonpietro, Deputy General,
Robert E. Attorney argued the curiae, (Debo Attorney cause for amicus Jersey General of New Poritz, General, Attorney rah T. attorney). opinion
The of the Court was delivered O’HERN, J. County
A defendant, Harris, Morris convicted Joseph R.E., R.E., murder of against wife, and of other offenses his I.E., (Because daughters. and their two this case involves sexual juveniles, assault of we do not use actual names. N.J.S.A 2A:82- issues, 46a. To dehumanizing avoid we will use the assumed victims.) names of Ron and llene Ellison for the adult In a sentencing proceeding,' presence also found the of statuto- ry aggravating factors that death-eligibility. established After considering statutory factors, aggravating mitigating jury determined that defendant should be sentenced to death. non-capital convictions, For the imposed the court two consecutive life eighty years sentences and of consecutive sentences with a ninety-year period parole ineligibility. principal (1) claims raised in appeal defendant’s are: capital prosecution
selective of this case occurred after defendant rejected plea (2) non-capital sentence; offer with a the trial judge incorrectly charged on the form of murder that is death-eligible principles Gerald, under the of State v. (1988); (3) judge the trial failed to inform the
that it unanimously could guilty find defendant of murder even if it agree (intentional did not on the form of murder or serious- (SBI) bodily-injury (4) murder); judge incorrectly trial *9 charged jury that should not consider the diminished- it until after it capacity on mental disease defect defense based (5) insanity; rejected and the trial had defendant’s evidence of robbery judge improperly an affirmative defense to based denied possession of victim. right to in the the murder on claim funds not taint the trial. We find that those and other claimed errors did The affirmed. convictions are
I upon purposes appeal generally this we draw defendant’s For $10,000 Ron invested with statement of facts. defendant firm, specializing precious company an investment Ellison’s dividend checks for metals and coins. Defendant received however, monthly Eventually, thereafter. first few months finally compa- payments stopped. The checks became smaller and $10,000 ny out of in 1985. Defendant wanted his went business telephoned company He offices and investment back. visited times, his attempting the return of to talk Ellison about several avoiding obli- thought that Ellison was his money. Defendant gations to him. daughters, ages with two seven
Ellison and his wife lived their wrought frightful Harris his and nine. On November date, p.m. after when llene Ellison revenge. On that it was 8:00 night door of horror. front home from work to returned black, face opened by a his but was man dressed was locked it family by a He her and told her her mask. struck covered nobody if what he told her do upstairs was she did and get would hurt. daughters hand- her two
Upstairs she found her husband and blindfolded, cuffed, He handcuffed and seated on the bed. money. repeatedly asked Mrs. Ellison. Defendant
blindfolded ap- gave purse. He Mi's. him from her $700 Ellison raped and her two children. peased. Mrs. Ellison Defendant see managed loosen her blindfold could Mrs. Ellison a mask that he wore walking around. She observed *10 surgical gloves. money, and After continuous demands for more raped again he Mrs. and warned her the children that Ellison anything newspapers if he saw in the about what occurred he get would come back them. room,
After defendant left the Mrs. Ellison heard a sound like a defendant, gun being say loaded. She her “I’ll heard husband * * * you take I downstairs. have coins downstairs.” Mrs. gun floor, Ellison in saw a the bedroom on the master which she kicked under the bed. then her She heard outside husband screaming, going open “he’s to kill me.” Unable to the window handcuffs, because of her' Mrs. Ellison with broke window the neighbor walking back her hand. She to a dog screamed his neighbor police. outside. The the called Defendant returned upstairs way and tried to force his back -into the bedroom. dresser, Because Mrs. Ellison had barricaded the door with a he was unsuccessful.
Upon arrival, police body the backyard. found in Ellison’s lying He was face down on stomach. his He had blood on his neck A and shoulders. bullet from fell the wound when medical body. autopsy examiner report moved An showed that Ellison had died from a bullet that entered the back his neck the left on side, cutting spinal disconnecting cord and from brain body. pathologist rest his The State’s testified that the victim probably was shot while he was on ground. eyes
A black opening hood with an for the was found on the addition, pistol floor the den. that Mrs. Ellison had bedroom, kicked pistol under the bed in the master maga- two zines, ammunition, a flashlight, box of a syringe and its plastic later, wrapper days were also found. Two a .22-caliber yard bullet shell adjacent was found in the to the Ellisons’ backyard. years later,
In October almost three defendant was arrest- in killings postal ed connection with unrelated of four in workers Bergen County. His home was searched. That search disclosed flashlight handcuffs and a the one like found the Ellisons’ home. markings to the one Syringes found the search had similar newspaper on Ellison articles found at the Ellison house. Two attire, Ninja armed snapshots of ánd two homicide Ninja discov- throwing star and a sword were with martial-arts undated letters written defen- produced ered. The search two likely to calls a “warrior” dant. In both letters defendant himself note, fairly great “in honor.” which is die combat” and “with One Ellison, after postscript warning has a brief and concerns Ron *11 ghost.” in a In the “might he return as defendant died combat realistically deny that he not face of that evidence defendant could insanity and principal His were killed Ron Ellison. defenses capacity. diminished
(cid:127) in to an life troubled. He was born Defendant’s was Clinton, Jersey. in New He inmate Prison State Women’s to age given at months and was taken from his mother two with his hardly Defendant had contact his aunt and uncle. years until eleven old. did meet his father he was mother and in he he born began He to was cursed because believe parents. high rejected by graduate his He from prison and did Navy. He classes in the United States attended school and served community college. at a local for one semester childhood, had an began fantasize. He Dming his to swords, guns. At guillotines, and imaginary friend drew and an Chief. age began ten to hear the voice of Indian nine or he however, hear began to Eventually, the dominant voice defendant Ninja spirit, fierce whom defendant was that of a a warrior “Ninja” throughout describes him his life. believed had been with highly who Japanese warriors were a of a of feudal member class Hudgens, 400 in the art of stealth. Commomvealth trained (1990). 1352, Daimyos, the n. 9 Pa.Super. 582 A.2d lords, employed Ninjas spies Japanese frequently as feudal Ninja specialized training. Ibid. assassins because of their outfit, style but it in to a karate costume is black and similar 7. at n. Defendant a black Id. 582 A.2d includes hood. go to to fulfill Ninja spirit this him to Asia claimed that directed prophecy. Navy understanding in with his He enlisted serving years that he would in an be stationed Asia. After two on Navy, general aircraft a discharge carrier in the he received failure to attend to his duties. began post
In he November to work office Ridgewood, Jersey, May New and remained there until 1990. At job experience this he claimed discrimination as an African- himself, Believing American. that he needed to able to be defend up occasionally he took karate. Defendant arrived at work black, Ninja garb, military dressed in an imitation of a outfit, camouflage performed martial-arts maneuvers before employees. fellow His co-workers described his behavior “irra- as tional,” “odd,” and “weird.”
II 1. offering Was the decision to seek the death after prosecutor’s penalty plea resulting a life of discretion, sentence abuse in the wanton and cruel imposition rights? of the death violation of defendant’s constitutional penalty selection, April during jury prosecutor offered plea agreement pursuant to defendant prosecutor which the only would seek life sentence. Defendant claims that *12 prosecutor thereby penalty announced his view that the death was inappropriate up and excessive in his case. When defendant tore plea the executed in emotional outburst moments before he was plea, scheduled the to enter the State continued to trial awith capital subjected case. he Defendant contends that a to sentence imprisonment of death rather than life because he is mentally ill. claim Defense counsel does not the State’s capital initial prosecution decision to make this a was based on unsupported Instead, aggravating they factors. claim that an error in prosecute lies the reversal of to State’s its decision his non-capital solely mentally case as a case because the ill defendant plea negotiated. did not enter as the recognized potential We have the prosecuto- for arbitrariness in rial decisionmaking respect capital with to eases. In v. State
539 (1984), 132, 141, acknowledged McCrary, A we 478 .2d339 97 N.J. a to seek a consequences that from decision significant flow judicial persuaded “that some and found ourselves death sentence necessary.” scrutiny charging Our stated prosecutorial [was] of this area of only a minimal intrusion into goal was “to effect discretionary pow light in of the “broad prosecutorial discretion” prosecutors determining charges. in historically exercised ers” 225, Koedatich, 252, 142, 112 A .2d In Id. at 478 339. State 813, denied, 1017, (1988), 102 A .2d 488 U.S. 109 S.Ct. 548 939 cert. 153, (1989), Georgia, Gregg v. 428 U.S. noted that L.Ed.2d 803 we 2909, (1976), “the federal 49 859 holds that 96 S.Ct. L.Ed.2d prosecutorial discretion require limits on Constitution does in statute.” We beyond aggravating factors outlined however, that “the requirement, and found beyond that looked * * * consistency and reliabili Jersey mandates New Constitution 251, capital Id. at ty punishment.” in of the administration Ramseur, A.2d (citing A.2d 939 State v. (1987)).
As we have stated: assessing what are discretion is standards The critical prosecutorial question s' * death-eligible to status. move a case from death-possible to applied * * different cases a reasons a handles [T]here are of myriad why prosecutor strength guilty, willingness as the differently, plead such defendant against case a co- the State’s case, the State’s defendant’s cooperation mitigating weight aggravating factors, and of the defendant, the relative statutory witnesses, and the relative credibility availability persuasiveness S! ' ". office county resources of the prosecutor’s added).] (emphasis [Id. at 548 A.2d prosecution find that this principles, we do not applying those arbitrary punishment or type of and unusual cruel evokes Defendant’s concerns us. prosecutorial power that misuse of exposure to basis for his not serve as the impairments mental did decision, Rather, prosecutor’s original penalty. death case, capital continued trial the matter as proceed with the Obviously, plead. not to when chose appropriate be issue a contested capacity was to be mental defendant’s *13 catalog of revisiting the could avert Only guilty plea trial. family. (Ultimately, horrors suffered this the two minor testify children were not forced to at the trial because defendant stipulated they testify they sexually would had been assaulted.) addition, guilty pleas in County Morris could have aggravating subsequent become proceedings factors against Bergen County. defendant in say
We cannot prosecutor abused his discretion in continuing capital with the trial of this matter. This case is not Jackson, (1992), like State v. A 607 .2d 974 in which prosecutor changed course in midstream. In this case it was defendant change who caused the proceedings. the course of the Defendant incompetent had not been declared trial. stand claim insanity compel Defendant’s prosecutor did not aggravating Therefore, withdraw the notice of prose factors. pursue cutor’s decision to capital prosecution was not an abuse of discretion. refusing jurors
2. Did
trial
depriving
court err in
to dismiss
for cause, thereby
challenges?
defendant of his full allotment of peremptory
us,
Before
appeal
jurors,
focused his
on two
Arlene P. and Laura J. The
adopted
juror
test
we have
Ramseur,
disqualification in
supra,
255-56,
State v.
Defense requested counsel juror that the court remove Arlene P. panel ground from the on the that she was an “automat- ic penalty” person. death sought Counsel also dismissal for cause juror’s based skepticism on the psychiatric about testimony. When if asked she could think of case in which the death penalty would not appropriate be for an individual convicted of murder, responded, Later, she “I can’t. response No.” questions posed by prosecutor rehabilitative asking if she were person kind who penalty would vote for the death automati- cally, replied, she “I weigh would have to and measure.”
541 forced argues that this kind of rehabilitation Defendant We encouraged juror the to shield her natural views. have colloquy prosecutor and the witness and reviewed the between correctly questions. We are satisfied that the court court’s substantially inter not have held that witness’ views would ability capital conclud with her to decide a case. court fered inability give example a case in which the ed that her to simply “she penalty inappropriate death occurred because was think of a situation at this time.” couldn’t jurors’ rigidly responses into a series of The court did not force voir “yes” gave great leeway It to in the or “no” answers. counsel posed hypotheticals various process. dire The court and counsel jurors’ to assess the attitudes. questions troubling answers to
More were Arlene P.’s opinion testimony. her of such psychiatric When asked about , “I fair. I—.” She testimony, she don’t think it’s said: I— testimony fair explained thought “[i]f of such was that she the use * * was “I honest The most that she said psychiatrist problem. probably be a guess it It’s an —it wouldn’t wouldn’t be make a problem.” The asked if she would be able to court her testimony automati particular witness’s determination “as to you asking cally.” as whether Defense characterizes that counsel flag, prosecu Even apple and motherhood. pie, believe “necessarily questions that the could not tor was concerned court’s raised,” the court counsel but [defense] cure all concerns of her candor Arlene P. for cause because refused dismiss skepticism evidence. expressing psychiatric about opportunity a full required permit We have that trial courts insanity toward prospective jurors about their attitudes ask 453-54, Moore, 122 N.J. State v. mental-health defenses. (1991). Moore, Here, concept disease as in mental A.2d moderately familiar “Anyone was critical to case. defendant’s juries acquit on public’s reaction where with criminal trials and insanity knows the charges by reason of defendant’s murder justice vulnerability of the concerns and the strength of these system to extreme erosion of Sociological confidence. studies S., 118, 139, confirm this.” In re Edward.
(1990) Hans, (citing Valerie P. Analysis An Public Attitudes Insanity Defense, (1986) Towards the 24 Crim. (89.2% polled insanity those believed guilty defense allowed free)). persons go *15 figures
Whether those are Many accurate is not the issue. people great have a difficulty deal of in accepting insanity as a Jasuilewicz, meritorious defense. See State v. N.J.Super. (App.Div.1985) 501 A.2d (requiring, in circumstances of case, “searching” judicial inquiry juror on attitudes toward insani ty defense), denied, (1986). certif. Through questionnaires, questions, its own and with the assistance counsel, a court juror should decide whether a can evaluate the testimony psychiatric by witnesses the same standard that he apply or she testimony would to the any other witness. approach That is the that was followed prosecutor here. The explained to Arlene P. put that “we want[ ] to in position be, less, of to more or a blank slate and then hear- all the evidence,” circumstances and and that court and counsel were willingness concerned about her to deal psychiatric with testimo- ny. responded: guess She “I I should have answered in a more way, direct which I didn’t. I’m I sure don’t guess have I —I could, know, you evaluate psychiatric [a case] with a evaluation.” added). (Emphasis balance, On the court assessing did not err in ability her to serve. The colloquy entire shows a frank exchange juror’s of the views and a willingness psychiatric to evaluate evidence. challenged juror, J.,
The other Laura was asked to describe her attitude penalty, toward the death responded: “[S]ometimes it would be advisable. Rather than somebody have prison rot in if they’re going never anything to make of themselves.” She ex- plained by her saying: answer “What I meant ifwas hope there’s no just rehabilitation or if simply going it’s not to any good do because the crime was too horrible the circumstances really horrible, they I I what are but could—I were too don’t know way.” go could either argues that should have been dismissed
Defendant she rotting in preferable is because the view that execution cause deciding no the fate of individual who prison place has argues counsel that Laura to live rather than die. Defense wishes altruistic, substantially position, though might it be would J.’s However, death-penalty impair application of the statute. her complete questioning. in the Im exchanges were isolated those first a death- mediately volunteering after her remarks about explained prisoner having jail, rot she that she sentenced in all a murderer should receive the did not feel that instances very is trial was that penalty. “[S]he death court’s reaction trying consider her answers before she thoughtful. She’s weigh aggravating responds.” agreed she would Laura J. mitigating circumstances. questions. psychiatric Arlene P.’s views on were close These troublesome, regarding were as was Laura J.’s view evidence jail. “rotting” in convicted murderers *16 seating jurors, in two Even if the trial court erred those peremptory challenges pro find of two we do not loss 154, 123, Bey, In 112 548 A.2d an unfair trial. State v. N.J. duced (1988), explained improper we that an denial of a for-cause 887 always require Among a new trial. the factors challenge does not jurors eventually removed are whether the were to be considered removed, they jury, stage at were the effect on from the which defendant, any apparent to the and strategy, unfairness counsel’s required. were Court peremptory challenges whether additional Defendant and were well aware of those standards. counsel granted requested challenges. The court defendant additional juror whom a challenge one as to peremptory remove additional about had denied. The State exercised challenge for cause been challenges. had peremptory its Defendant one-half of allotted jurors. and the Both defense counsel opportunity fair to select questions leeway in voir given great posing dire prosecutor were jurors. receptive to the The was court almost all of counsels’ requests framing in questions. fairly The was selected. failing court commit Gerald error the trial
3. Did
to define the difference
by
jury charge?
between intent-to-kill
and
in its
murder
SBI murder
Legislature
Jersey
amended the New
Criminal
Code of
Justice,
1979,
in
c.
purposeful
include two forms of
or
(2) (criminal
2C:ll-3a(l)
knowing murder. N.J.S.A.
homicide
constitutes murder
purposely
when
actor
or knowingly causes
death).
bodily injury resulting
death or serious
(Felony
in
murder
2C:ll-3a(3).)
is a third form of murder. N.J.S.A
As we ex
Gerald,
plained
77-78,
supra,
in State v.
at
A.2d
death penalty
superimposed
when the
on the
of Crimi
Code
nal
specific
Justice
no
reference was made to which form
knowing
purposeful
murder under N.J.S.A. 2C:ll-3 would
However,
death-eligible.
be
legislative history
of the act
helped us
only
determine that it was
killing
the intentional
subject
89-90,
penalty.
was to be
to the death
Id. at
A .2d792.
We thus
required
ruled Gerald that if
the evidence a
consider,
alternative,
must
in the
purposely
whether defendant
or
death,
knowingly
or purposely
knowingly
caused
caused serious
injury
bodily
Only
that resulted in death.
the former offense
death-eligible.
69-70,
renders
Id.
Defendant charge contends did meet charge joined those standards. The together the two forms of clearly murder without distinguishing them. For example, its charge the court said: *17 guilty is if Now, of murder he causes person death or serious purposely bodily
injury resulting knowingly injury in death or or causes death bodily serious, resulting guilty in death. for order to find you murder, the defendant of the following to State is each of the elements required a reasonable prove beyond injury that doubt, one, [Ron Ellison’s] the caused death defendant or serious bodily resulting Ellison’s] the did or [Ron and that defendant so two, purposely death knowingly. * s. s. does when it is the who causes another’s death so purposely pel-Son object injury resulting in to death. cause death or serious bodily conscious person’s knowingly the who so when is aware A causes another’s death does person person would it is certain that his conduct cause death or serious bodily that practically knowledge injury resulting which nature of the or with the in death. The purpose [Ron Ellison] fact for towards is a to you defendant acted question decide. knowledge separates and charge That the mental states Later, seriously injure. kill or purpose, not intents to the mental you jury: “If that has charged the court determine the State proven beyond purposely or a reasonable doubt that bodily injury resulting in knowingly death caused death or serious you guilty of murder.” must find the defendant issue, jury’s reviewing the court in of the Gerald
Conscious charge, explained that at the conclusion there verdict sheet “[Gjuilty for purposely of murder: of murder or were two verdicts guilty of murder knowingly causing death his own conduct or bodily injury resulting knowingly causing serious purposely or However, instruc- off one of those.” neither the death. Check only explained form of nor the sheet first tions verdict death-eligible. murder sheet, this reference to the verdict
Defendant contends that unaccompanied by a must so find reinstruction doubt, unanimously beyond a diluted the State’s reasonable that, entirety, in its proof. taken We are satisfied burden prove always charge emphasized the State’s burden court’s (that unanimously death-eligibility) trigger elements those proving beyond a It stated “the burden of reasonable doubt. beyond charged here guilty of the offenses the defendant never always is on the State and burden reasonable doubt choosing the murder its role shifts.” The understood general Among made in instructions the first comments verdict. jury panels were these: * * A death. defen- [U]nder our certain murders are law, only punishable by subject if he only convicted of murder is the death penalty purposely dant *18 knowingly caused the death of victim his own as an the conduct or by accomplice paying promising anything commission of the or to the offense of procured pay a value. pecuniary knowingly injury causing resulting A who is convicted of serious bodily subject not to a death is the death Stated defendant who penalty. differently, injury inflict and intended to serious death results is only bodily unintentionally guilty subject murder, but is not the death and, to penalty, similarly, person subject murder is not to a death convicted of felony penalty. Every juror concept was asked if he or she of a understood the presumption accepted of innocence and that the bore the State proof every charge. on burden of element the Defense counsel did trial court ask the to indicate its instructions that the purposeful knowing capital-murder or verdict murder was the could, however, point language verdict. Counsel to no Gerald prosecutor required agreed that that instruction. The that some might reference in the verdict sheet be warranted. The court might appear seemed to do so it the hesitant because thereby making although it was on penalty, decision the it recognized give it a cautionary could instruction. end, court was satisfied that “we would be to tell able from capital the verdict checks off whether it’s or non- capital.” point clearly could have been more stated in our Dixon decision. cases, required by
In future
whether
constitutional
not,
compulsion
explain
juries
or
courts should
the difference
between
forms of
(e.g.,
murder submitted for their verdict
appropriate,
principal
accomplice,
where
murder as
or as
accomplice
given
procure
killing),
has
who
value
that some
not,
capital
they
agree
are
and others are
and that
must
unani
mously
beyond a
doubt
and
reasonable
on those
of their
elements
trigger
eligibility.
principles
verdict that
death
Under the
(also
(1995)
Mejia, 141
State v.
In this returned causing intentionally guilty knowingly and found death, insanity or diminish- principal theme of the defense was that one who jury could have found capacity, and no rational ed not have in the back of the neck would victim shoots handcuffed Therefore, we that death would result. practically certain been find that fully failure to describe more the difference between intent-to-kill murder and SBI murder was harmless. Jersey
The New permit Constitution was amended in 1992 to capital punishment of a only defendant who intended serious bodily injury resulting in death offending prohibition without against punishment cruel and unusual contained in the New ¶ Jersey Constitution. N.J. Const art. 12. Legislature amended the Criminal Code to change. reflect N.J.S.A. 2C:ll-3i. place
Because this homicide took
before those constitu
statutory amendments,
tional and
applied
the Gerald distinction
capital
this trial. A
charge without distinction between the two
(intentional
SBI)
forms of murder under our statute
would not
Jersey
offend the New
Constitution. Courts and counsel formu
lating charges
juries
cases, however,
in future
clarify
should
required
that the mental
capital
state
for a
conviction based on
*20
SBI murder should be consonant with the federal constitutional
Arizona,
137,
mandate in
v.
1676,
Tison
481 U.S.
107 S.Ct.
95
(1987),
L.Ed.2d 127
that
recklessly
the actor be
indifferent
whether the result of the conduct would be death. State v.
Gerald, supra,
74-75,
113
at
N.J.
was divided on the
of whether
question
defendant’s intention was
kill
or
injure,
guilty
it could return a verdict of
murder on
non-capital
the basis of that
finding?
non-unanimous
point
This
is identical to one raised in
Mejia,
State v.
475,
supra,
141 N.J.
662 A.2d
today. Mejia,
also decided
In
486-87,
313-14,
at
at
following
A.2d
principles
set
Brown,
forth in
supra,
State v.
651 A.2d
explains
Court
jury
that a
need not be unanimous on the various
guilt
theories under which
may
Thus,
for murder
be established.
example,
may
one
guilty
jurors
be found
of murder even if
do
unanimously agree
not
whether
the actor’s role was that of
principal, accomplice,
Brown,
co-conspirator.
or
State v.
supra,
520-22,
So,
too,
N.J. at
If there were Brown/Mejia charge, we the omission of a verdict because of overwhelming capital conviction. Given would set aside evidence of an intent to kill and the absence evidence of injure, the omission of such merely to we are convinced that intent inexorable focus of this charge prejudice defendant. The did not opening In his was the troubled mental state of defendant. case .statement, lay, acknowledged where his focus defense counsel you acquit Joseph saying suggest “we do not for moment * * * the.jury explained to that’s not what we ask.” He Harris insanity not release defendant acquittal reason of would to the streets. judge] [the trial will advise you. It is in And There is procedure. place. 4 * 4 suggest not kill Hams did [W]e do not stand before you Joseph [Ron on that Harris killed [Ron Ellison]. It is clear from this moment Joseph But the issue is was That is not the issue. Ellison]. That is the question. And will that this offense was committed. you Harris insane the time Joseph will have to evaluate that testimony. from and you hear testimony psychiatrists, during as we did to that And we ask testimony. you, And we ask listen you that and to listen carefully. evaluate selection to fairly impartially process, fair. will a verdict is that, And if do return you you charge, we in connection with the Gerald
For the reasons stated *21 theories charge on the non-unanimous find that the failure harmless be- non-capital murder was finding guilty of defendant rational basis on which record there was no cause on this bodily injury. This is merely intent to cause serious could find an accomplice charge or a possible in which there was case Brown, supra, 138 N.J. charge. possible conspirator See State 522, (holding permitted at must be to find guilty principal accomplice). murder as either (albeit closing argument Defense counsel’s with one reference to [only put whether one who intended death “would bullet in one] neck”) person’s repeated original theme: lose “[N]ever is, sight Joseph of the issue which was Harris insane at the time he committed this offense.” Defense counsel’s final words to the impartial “Joseph asked for a “fair and verdict” on whether * * * night Harris insane or not insane on the this alleged offense occurred.”
The issue is whether there was a rational
which
basis on
only
could have concluded that defendant intended
serious
bodily injury
when he shot his victim the neck. The most
factually
194,
analogous
Coyle,
case is
A
State v.
574 .2d
(1990).
case,
In that
the defendant shot his victim in the back
emphasized
of the head
and received Gerald reversal. But we
there was a sufficient
on which to
basis
find
bodily injury
defendant had intended to cause serious
than
rather
209,
trying
to kill.
Id. at
5. Did the court’s rejected create an mental or defect until after it had defense insanity disease risk that would not consider whether defendant’s mental unacceptable forming for conviction of conditions him from the mental state required prevented charged? the offenses arises, part, tortuous manner in This issue from the treats the effect of mental which federal constitutional doctrine presence culpability criminal and the disease or defect on rea, In requisite intent to commit the offense. so-called mens 611, (1987), Breakiron, 591, we State though governing then the diminished ruled that even the statute proof a capacity imposed the burden of on defendant defense defense, imposed required a the burden establish or defect that is only show the existence of a mental disease offense, not that the disease or relevant to the mental state of the had negate a criminal mental state. The State still defect would 613, required for the offense. Id. at to establish the mens rea A .2d 199. pass mus interpretation, thought, we would constitutional
That
disprove an
imposed
burden on the defendant to
ter because it
no
Subsequently, in Human
charged.
crime
essential element of the
432,
denied,
812,
493 U.S.
110 S.Ct.
Beyer,
ik v.
871 F.2d
cert.
(1989),
imposing
the Third Circuit ruled
The knows of an actor who may be seen the case or defect disease god a that the voice of killing mother but believes that he is his killing that he is person a knows him to do it. Such has directed contrast, person with a diminished kill. and intends to might the floor not drops a small child to capacity of mind who or practically certain to cause death the action was know that resulting in Those are difficult dis- bodily injury death. serious jury. present tinctions to case, insanity, claiming of presented the defense
In this Harris act reality” the criminal by “his own to commit that he was driven wrong.. He doing was know that what he was and that he did not If insanity an affirmative defense. proving of as had the burden established, entirely exculpate him from it have served to would mental presented evidence of charge. Defendant also the murder state of negated have the mental or defect that could disease 631, 646, Galloway, knowledge purpose. or See State (1993) for mental (stressing permissive definitions A.2d 735 628 impenetrable difficulty showing that “an disease or defect affecting cognitive facilities a mental disease line exists between emotions”). affecting impulse control and one of not to consider lesser-included frequently are told Jurors guilty greater they until first find the- defendant fenses 951; see at 574 A.2d Coyle, supra, 119 N.J. offense. State v.
553 Boettcher, 83, 505 N.E.2d N.Y.2d 513 N.Y.S.2d People v. (1987) juries permitted to consider (holding that should not be they unanimously until after find defen a lesser-included offense offense). premise The is “that it is guilty greater of the dant not on duty compromise reach verdicts based of the not to holdouts, appease but to render sympathy for the defendant or to it finds to the law it is just applying verdict the facts 85-86, at 505 N.E.2d 597. charged.” Id. 513 N.Y.S.2d prob poses verdicts concept sequential resolution of available fashioning sequential emphasized that in lems. We have therefore thought charges must taken to avoid the stratification “care be returning proper from available that would deter a (1988), Zola, 384, 406, verdict.” State v. (1989). denied, 1022, 109 103 L.Ed.2d205 S.Ct. cert. U.S. *24 Here, of the question the is there was such stratification whether proper jury returning the jury’s to deter the from deliberations available verdict. We think not. a great lengths to to fashion fair
The trial court went assuring that the charge in the face of the difficult task correct shifting by constitutionally-driven burden jury not be confused the burden) (the and diminished insanity defendant bears the between burden). (the with The court capacity State bears reviewed to the without charge that it submitted counsel written portions of the oral complains of exception. Defendant now charge. insanity follow- charge on prefaced trial court its with
ing: charged guilty of the crimes maintains that he is not Now the defendant find that the State has failed prove beyond If you
reason insanity. or the defendant’s partic- element of the offense reasonable doubt essential any guilty need not and you must find the defendant offense, you ipation has If find that the State to the defendant’s insanity. you consider the evidence as and the of the offense doubt each essential element a reasonable beyond proved as to consider the evidence in the must then offense, you defendant’s participation the defendant’s insanity. should have time the court argues that at the same Defendant capacity in consider evidence of diminished instructed respect determining had met its burden with whether State charged. elements of the offenses the essential defense, Next, insanity on the the trial court instructed the prove insanity by a noting that defendant had the burden to jury, preponderance of the evidence. It also informed the howev- er, although respect the burden with to the defendant bore defense, insanity proving the of the the overall burden of elements always charged offense remained with the State. capacity:
It then on diminished instructed if has not been Now, determine the defense you insanity proven by * * will or not from defendant, consider whether the defendant suffers you diminished There has been evidence that defendant suffers capacity. produced determining from mental or You must consider such evidence in disease defect. whether or not the has a reasonable doubt that the defendant State proved beyond knowingly. or acted purposely ':s * * If the evidence of mental disease or defect or other evidence or lack of carrying proving evidence the State from its burden of a reason beyond prevents knowingly, able doubt that the defendant acted or then must purposely you acquit the defendant offense. appropriate If, however find that the State has reasonable doubt that you beyond proved knowingly, together with all the defendant acted the other elements of purposely Again then must convict the defendant of the I offense, offense. you applicable would reiterate consider diminished the event find you only you capacity the defendant has not carried his burden as to the defense of insanity. objected portion charge Defendant to the last of the above. He suggested charge internally contradictory that the and effect- agreed ed a subtle “burden switch.” The trial court to reinstruct capacity insanity. on diminished without reference to Defense *25 objection recharge. counsel had no to the deliberations, day jury requested On the second of rein- burglary, robbery, struction on the and theft counts. Defense requested regarding counsel that the court also reinstruct dimin- jury capacity. ished The trial court declined to do so because the requested capacity. had not reinstruction on diminished It however, agreed, jury to remind the that it must consider evidence capacity determining of diminished when whether the had State proof charged all of the offenses. met its burden of on elements robbery recharge, judge At the conclusion of the included this language: conjunction with [diminished however, This would also be considered capacity], words, defense of In other first consider the you’ll defendant’s insanity. gowill If find that that’s not then you defense of insanity. you appropriate, and make a decision to that. defense of diminished as capacity considering guilt charge Again, in the innocence or of the defendant on this as on charges, of ra-
all of the have to consider whether or not the defense insanity you is Even if the State has each the defense diminished capacity applicable. proven if is here, and element find the defense diminished you capacity applicable every finding guilty. would be not then the object, complains Although trial defendant now counsel did not judge improperly repeated sequential that the trial instruction capacity as a “defense.” Defendant and referred to diminished jury charge the likelihood that contends that fostered conscientiously simply consider whether the evidence did capacity negated purposeful rea element of diminished the mens weary knowing Defendant claims that the conduct. which, considering the prior without from its deliberations defect, it that the had effect of mental disease or found State crimes, then found that defendant proven the elements of the insanity. preponderance of the evidence of produced a had not on disagree. The trial court’s reinstruction diminished We to the that it must consider capacity perfectly made it clear capacity to the State’s burden diminished evidence relation fleeting of the crime. The references prove the essential elements and the “defense” sequential to the order of deliberation burgla- respect recharge to the on capacity, given with diminished jury. likely confused the ry robbery, were not to have capacity, and it requested reinstruction on diminished had not provided to them in written correct instruction had the court’s contain given to the do not form. The written instructions present judge’s in the oral claims to be the errors defendant instructions.
556
sequential
do not contain the
errors
instructions
reversible
(1991)
Erazo,
112,
v.
126
murder. This instruction is backwards. homicide would otherwise be Only knowing manslaughter a or murder be reduced to purposeful may by presence of passion/provocation. N.J. at [126 232.] 125-26, 594 A.2d case, charge. In have a this we do not backward The court did jury ignore not tell the it could evidence of diminished essence, capacity convicting jury In defendant of murder. ignore capacity was told that it could evidence of diminished if it addition, acquitted by insanity. defendant of murder reason of In by whatever error or confusion existed was corrected jury subsequent curative instruction. That later instruction “un damage charge.” did much of the caused the earlier v. State (1994). 318, 323, Heslop, 135 N.J.
These, then, contradictory charges were not and inconsistent juror that “create reasonable likelihood that a understood the Franklin, instructions in an unconstitutional manner.” v. Francis 8, 1965, 8, 344, 471 n. U.S. 323 105 S.Ct. 1975 n. 85 L.Ed.2d (1985), Moore, quoted n. supra, 8 in State v. 122 N.J. 864; 529-30, Oglesby, 585 A .2d accord State (1991) (holding improperly A.2d 916 instruction misled jury to believe that proving defendant had burden of his diminish capacity). way Oglesby, ed both Moore and there was no determine whether the had followed the incorrect instruction prove by preponder that the defendant mental disease defect ance of the evidence. worst, given they
This correct instructions. At easy were not to follow. Defendant thus asserts that the instruc- give “plain tion falls short of the that the standard court exposition explains clear of the issues” that to the “in an legal understandable fashion its relation to the issues function *27 Green, 281, 287-88, involved.” State v. 86 (1981). easy simplify shifting It is no task to the burden case, requires. federal doctrine In this the court clarified its addition, charge requested. when In it It did what few courts do: gave jury explained: the correct written instructions. The court greatest jury. intelligence I faith in of I think have the the this they’re jury, paying throughout have been close attention the
extremely competent they trial. jury being with concern is the able to recall the of the My only complexities charge dealing with diminished I dare insanity capacity. Quite frankly, say and/or legal a minds, we could assemble courtroom full of the finest but those that knowledge have had no contact with no of and the diminished absolutely capacity charge defense or defense and I can read them that and send them out insanity squabbling and have them over what I and what I for on said meant or weeks days nothing intelligence jury. end. I think it has to do with the of the I’m inclined to charge allow to a it them have as relates to and diminished insanity copy nothing I see that would it capacity. preclude quite frankly. whole, especially light subsequent a When considered as instructions, charge instructions and the correct written cor- rectly stated the law. jury charged right 6. Should the court have that defendant’s claim of charges?
recover his invested funds was a defense to the robbery 2C:20-2c(2) N.J.S.A. right” establishes “claim of as an affirma- provides: tive defense to theft. The statute right. e. It is an for that the Claim affirmative defense theft prosecution actor: [*] [*] [*] [*] [*] [*] [*] [*] (2) right Acted under an honest claim of to the or service involved or property ’ n * right that he had a of it as he *. did; acquire dispose Defendant, robbery.
Theft is an essential element of therefore, charged contends the court should have right if it found that he had an honest claim of to recover his Ellison, money provide a from such claim would a defense to instruction, contends, robbery. The absence of such an he under reliability concerning robbery felony mines the of the verdicts and murder. problem penalty phase
He claims that this also infected the proceedings charge failed to instruct because felony robbery, predicate to the crime of properly on defense by the Those factors proffered factors State. aggravating both for the commission of an killing to avoid detection included committing felony. offense, another killing in the course of 2C:ll-3c(4)(f) accepted the de- (g). Had the N.J.S.A. penalty phase right, have entered claim of it would fense of aggravating underlying of those each with one fewer offense (Of course, right claim of to the he defendant had no $700 factors. Ellison.) that, addition, defendant contends from llene took minimum, that the the court should have instructed weight of right claim of could affect the pertaining to the evidence robbery by differentiating this from aggravating factors both *28 completely right of was absent. robberies in which claim other plain error and we must point arises as a matter of The capacity charge had the clear to whether the failure to determine really aspects unjust two to this bring result. There are about (1) recovery claim-of-right to of of the defense issue: the extension (2) force; meaning through and the of the property the use of specific tangi- items of “property.” “property” Is limited to word right unliquidated it claims of or property or does include ble debt? 490-91, at Mejia, supra, 141 662 A.2d
In
v.
State
right
315-16,
statutory
of claim of
holds that the
defense
the Court
limited,
robbery.
and does not
to
The defense is
is not a defense
money
liquidation
in
of an
apply
taking of
or valuables
to the
That
with the histori
obligation or a debt.
is consistent
uncertain
way
the
in
concept
at common law and
development
cal
of
applied.
Legislature intended it to be
that our
which we believe
involving
strong
the use of force
are
reasons why self-help,
There
public policy
against
For that reason most courts have
should not be condoned.
person,
right
circumstances.
have
claim of
under those
Courts
tended to
strictly
apply
attempting to
not
unless
defendant was
the defense does
apply
held
right;
subject of a
claim of
chattel
that was the
prior
retrieve
specific
value.
not
to take money
property
equivalent
defendant may
attempt
(1992) (citing
A.2d
417
Thomas v.
State,
635,
412,
328 Md
616
State.
v.
[Jupiter
(Fla.
(Fla.Dist.Ct.App.),
dismissed,
cause
The defendant lost a sum of to the victim which caused mental money and/or [sic] of his distress, emotional and caused loss dispare by apparent aspirations * * of home ownership. frustrated victim’s and unethical evasive, uncivil, defendant further behavior their business relationship. Hence, prejudice no in connection with the we see right claim issue. guilt prosecuting
7.
Did the
state
attorney unfairly
penalty phases
the trial that it was a fact that defendant had removed his hood and the blindfold
killing?
victim
from the
before the
prosecutorial miscon
The determination of whether
tenor of the trial and the
duct exists must take into account the
impro
degree
responsiveness of both counsel and the court to
expected make a
prieties.
prosecutor
A
in a criminal case is
*29
closing argument
jury.
the
As
vigorous and forceful
to
Justice
DiPaglia,
in
Clifford observed
his dissent
State
(1974):
305,
expected appropriate jury, graphic long to be forceful and in his summation to the so as he entitled to confínes himself fair comments on the evidence presented. [Citations omitted.] Prosecuting attorneys leeway if are afforded considerable their reasonably scope comments are related to the of the evidence jury. before the house, wore a At the Ellisons’ was the evidence:
This eyes. opening at the The his face with an hood that covered black ground-floor No Ellisons’ den.. police found the hood the had been removed. Harris testimony when the hood disclosed family. of the handcuffed each member blindfolded and body found in the that Ellison’s was witnesses testified State’s testimony behind him. No backyard, his hands still secured or that his was blindfolded when found suggested that Ellison backyard. guilt phase, In lying in the was the house blindfold argued: prosecutor just given had all that time in the house the fact that Harris spent And Joseph given unmasked, fact that now he is was purposeful with the victim and thinking telling just that he’s the other don’t shot and in the same line people, [Ron Ellison] is issue, concerned about that that’s this, why tell about he’s anybody n *4 4. dead argued: penalty phase, prosecutor In running running from the house and from the defendant. He was shot away away off, from the facts are that the hood was And what we know clearly [Ron Ellison] was shot in the head the defendant blindfold was off and moment before he fled from the scene of the crime. at the last backyard however, blindfolding that the ample testimony, There was Mrs. Ellison was able to see haphazardly, and that at least done “Ninja” body wearing his hood. The victim’s defendant who was theory have without a blindfold. The defense would was found outside, living then return to the room to defendant kill the victim beginning escape. No one knows for deposit his hood before his defendant’s hood was removed. It is at least certain when or how one) only permissible (though inference not the that defendant’s prior killing. to the hood was taken off or fell off summation, prefaced com- guilt-phase prosecutor his his ments in this manner: suggest but what I events,
And we’ll never know the next exactly sequence it because Hams took off and off, is the hood came you perhaps Joseph happened victim and victim understood then he was never revealed himself clearly get going out of the house. to leave the scene alive and he tried desperately *30 just house given all that time in the And the fact that Harris had spent Joseph given unmasked, that now he is that was a with the victim and the fact purposeful shot added.] [Emphasis prosecutor clearly tells the part argument, In the first of theory regarding happened. The jury that his what this is facts, possible reading of the prosecutor commenting on jury. contingency reasonably clear to the he made that penalty phase, prosecutor did make bolder At the clearly from the facts troubling statement. know “[W]e * * more * * * simply It not clear from that the hood was off is Nevertheless, jury had been the facts that the hood was off. summations of counsel were thoroughly instructed were probability, knew that both sides evidence. all what it interpretation of what the evidence was and offering their specifically Finally, counsel did not meant. the fact that defense (although he did object prosecutorial miseharacterizations to those others) they were understood to the sense that contributes of an adversarial summation. the context verdict on the non-unanimous, instructions allow for a patchwork 8. Did the finding underlying murder and the that sustained the verdict felony felony c(4)(g), aggravating factor in the sentence? factor the felony capital robbery, kidnap burglary, Defendant was convicted predicate offenses for All of those are ping, and sexual assaults. 2C:ll-3a(3). The also convicted felony murder. N.J.S.A. However, knowing purposeful or murder. defendant of did not predicate of the offenses argues that the mere conviction jury had to felony murder. The conviction of mandate defendant’s commis during caused defendant’s if Ellison’s death was decide assault, during kidnapping, burglary, robbery, or sexual sion Defendant contends than one of them. the commission of more agree charged it had to have been should in the predicate which resulted “unanimously on the offenses victim’s death.” unanimous. cases must be
All verdicts
criminal
only “that the victim’s
prove
must
charged that the State
court
*31
by
during
it
death was caused
the defendant and was caused
flight
committing
after
one of these enumerated
commission
charge
the court’s
defendant could have been
crimes.” Under
if,
jurors
felony
example, eight
for
found that
convicted of
murder
kidnapping,
as a result of
two found the
murder occurred
assault,
for the sexual
murder would not have occurred but
robbery.
two decided Ellison’s death was a direct result of the
general
require
“It is assumed that a
instruction on the
unanimity
jury
they
ment of
suffices to instruct the
that
must be
specifications they
predicate
unanimous on whatever
find to be the
Natelli,
311,
guilty
F.
of the
verdict.*” United States v.
527 2d
325
(2d
denied,
934,
Cir.1975),
1663,
cert.
425 U.S.
96 S.Ct.
48 L.Ed.2d
(1976). Thus,
support
when there
two
175
is sufficient evidence to
theories,
felony
jury
designate
or more alternative
a
need not
felony theory
felony
which
it relies on to convict one of
murder so
long
felony.
as there is sufficient evidence to sustain each
State v.
Garcia,
(1988)
662,
585,
(citing
243 Kan.
763 P.2d
591
v.
State
Guffie,
(Colo.Ct.App.1987) (holding
We
considered the issue of
verdicts”
Parker,
denied,
628,
(1991),
124
State v.
592A.2d 228
cert.
503
(1992).
1483,
U.S.
That is so example, evidence, on different of these theories rely acts and at least two based on different juror will that a reasonable demonstrate a [when] possibility the circumstances jurors will not that all of the but and the other proven find one theory proven agree same on the theory.” (quoting Melendez, 224 Cal.App.3d [Id. at People (1990)).] 599, 608 Cal.Rptr. appears required when “it unanimity is instruction specific A or that jury confusion exists possibility of genuine *32 concluding that jurors a of different may occur as result conviction 641, at 592 conceptually distinct acts.” Id. a committed defendant in case existed this Theoretically, possibility A.2d 228. aggrava the alleged predicates for felonies as each of the because If, in a acts. as felony involved distinct murder ting factor or 266, 223, Dixon, the 593 A .2d supra, 125 N.J. v. such as State case felonies, predicate one of the the defendant of jury acquitted had unanimity specific lack of a the be concern about there could possibil the might have about we concerns Whatever instruction. jury’s light in of the vanish in this case ity patchwork a verdict of in felonies and predicate the guilt of each of findings of unanimous unanimity charge. specific a request absence of light of the could have established fact, to facts that stipulated In dissenting member agree with our We guilt two felonies. his jury moral dimension “recognize[d] the have that our cases doubt, have no 578, We A.2d at 360. at 662 verdicts.” Post predicate the conscientiously however, reevaluated the sentencing phase. in the felonies counting” the “multiple counting” or avoid “double
To felony), we (killing in course of the c(4)(g) aggravating factor factors, even multiple aggravating juries find have not allowed finding evidentiary bases for multiple might be though there 176, at supra, Bey, v. factor. State aggravating of that game.” State a numbers sentencing is not “Capital A.2d 887. do Moore, “[W]e A .2d 864. supra, 122 N.J. aggravating up allow factors to be totalled as bean-counters would do, Therefore, causing tip numbers scale.” Ibid. even felonies, multiple underlying only when there are there would be single c(4)(g) aggravating factor. Ibid. byproduct
We are certain that an unintended of this effort counting” may to avoid “double is that a defendant not wish to juries up multiple underlying might have total felonies that single felony-murder sustain the factor. future cases it will charge suffice if courts that to find the existence of the aggravating c(4)(g), felony-murder factor found in factor capital-death sentencing, must be unanimous as to the underlying felony support that it aggravating finds of the factor. example might charge: you For a court “If c(4)(g) were to find the aggravating predicated upon underly factor the commission of an assault, ing you unanimously agree sexual then must evidentiary sexual you assault was one of the bases that found for aggravating existence of the factor.” Sometimes, Dixon, supra, as State v. 593 A.2d potentially when aggravating there are two factors —sexual robbery possibility assault patchwork might of a verdict —the (In Dixon, genuinely guilty exist. found defendant not robbery, aggravated and the court did not submit the sexual *33 factor.) case, assault an underlying may as In such a counsel wish require separate to underlying verdicts on the existence of the Here, felony. jury unanimously the every found the existence of felony underlying felony-murder the factor. charged disregard 9. Should the court have the that it could not a statutory
mitigating factor for which there was reliable a evidence either as factor statutory jury’s rejection or as a catch-all and did factor, of such evidence violate right defendant’s to a fan- trial? Among statutory mitigating factors under N.J.S.A. 2C:11- 3e(5) are these: (a) The defendant was under of influence extreme mental or emotional
disturbance insufficient to constitute a to defense prosecution; (cl) wrongfulness or to of conduct to his The defendant’s appreciate capacity significantly as the law was impaired his to the of requirements conform conduct degree not to a sufficient of or defect or but intoxication, result mental disease ** 4. a to constitute defense prosecution; emphasizes he extensive evidence
Defendant
offered
in
impairment. A
a minimal burden
of
defendant has
mental
establishing
mitigating
factor. “The defendant
the existence
producing
evidence of
existence
shall have the burden
* * *
with
shall not have
burden
mitigating factors
but
2C:11-
regard
mitigating
of a
factor.”
to the establishment
3c(2)(a).
Smith,
F.Supp.
v.
Magwood
relies on
Defendant
Cir.1986), cert.
(11th
(M.D.Ala.1985), aff'd,
denied, which 107 L.Ed.2d 493 U.S. 110 S.Ct. mitigating do not where find that factors exist “[t]o stated us clearly returns to the state mitigating circumstances exist such Supreme by the Court in Furman of affairs which were found by the Constitution.” Georgia prohibited to be provided evidence that defen- psychiatric witness Defendant’s (he voices); he was auditory heard dant had hallucinations delusional; reality; and that own that he believed his vision schizophrenic. The witness believed paranoid he a chronic was disease; legally was insane from mental that defendant suffered offense; criminally responsible not and was at the time doing he was know that what was because he did not conduct doing right. he was was wrong that what but believed experienced psychiatrist found that defendant also The State’s legally not insane auditory delusions. He believed defendant personality He disorder. from a schizoid but instead suffered severe, one personality disorder is acknowledged that if a schizoid function, agreed, go He also to work.” “will not be able to will who is questioning, that someone counsel’s response defense manner in might be at work described not able function work- him. Those employees described defendant’s fellow which odd, erratic, irrational, argumentative, as ers described defendant *34 566 “wacko,”
weird, excessively They strange, germs. and afraid of dances, performed also said that he martial arts emitted a death chant, displayed “outer-space” prosecutor and Even behavior. acknowledged that defendant’s state of mind at the time of this or at other time not normal. But “not incident was normal” may qualifying of mitiga- meet the statute’s definition mental tion. Magwood, supra, this
The difference between case is case, there was evidence. uncontested evidence of the Magwood, at the time of defendant’s mental illness occurrence. (“[F]our supra, experts Mag- at F.2d ascertained wood suffered from some form of seriotis mental on the disorder murder [the] [he] date of and none testified that was free from date.”) added). c(5)(a) (Emphasis mental illness on The c(5)(d) mitigating require factors to evaluate whether the emotional disturbance was “extreme” or whether the defendant’s Martini, “significantly impaired.” faculties were State 176, 303, (1993). ample There was conflict between experts regarding degree severity of defendant’s mental illness. psychiatrist’s
The theories of defendant’s motivation included: dignity against his to “take a encircling desire stand” for his discrimination, against goal going which had be measured his back; get money society to the home victim’s his his with war him, for its racist treatment of which had to be reconciled with the black; fact that his inability victims were and his to know that doing wrong, what he was against which had to be measured description his wrong wrong.” his action as “a for Those might inconsistencies weight jurors have counterbalanced the might given otherwise psychiatrist’s have theories.
Except record,” prior factors as “no such we have consistently jury’s held that “[t]he determination of whether mat mitigating ters evidence constitute factors is result Zola, qualitative judgment.” supra, State v.
A concepts .2d 1022. one’s “extreme mental or emotional
567 capacity appreciate wrongful- or whether one’s disturbance” impaired as of “significantly the result ness of the conduct were qualitative judg- inescapably involve a mental disease defect” Martini, 287, supra, 131 N.J. at A.2d ment. State 1208. jury a instructed that it therefore do not believe should be We must find a statutory for which is mitigating factor there reliable jury certainly A should consider all reliable evidence evidence. weight assessing present factor is and determine the whether a factor But whether the evidence meets the which the is entitled. statutory requires qualitative mitigating of this factor definition judgment.
Finally, argues his trial counsel defendant should jury find the court to that it could mental have asked instruct 3c(5)(h), impairments under N.J.S.A. 2C: factor. the catch-all 11— Martini, 205-07, supra, In State v. N.J. 619 A.2d February this commenced—we 1993—before trial decided on c(5)(h) enough be held that instructions on the factor should broad mitigation under less to allow the to consider mental-health c(5)(a) c(5)(d). stringent prescribed than that and standards argues counsel that because ineffective assistance of Defendant Martini. charge in deprived was of a accordance with he fully trial instructed the on the disagree. The court We c(5)(h) factor, jurors single It it was but factor. told the pre- all the required rather them consider evidence one life, concerning char- That included evidence defendant’s sented. record, acter, The trial court potential for rehabilitation. and by jurors factor “an invitation that the catch-all instructed judgment compassion and to fashion legislature” their to use Also, very careful verdict reflects a mitigating factors. and credit the deficient searching analysis of the evidence of the defendant. character traits test,
However, Strickland/Fritz we satisfied that under are counsel, evaluating of ineffective assistance test for claims capacity a clear to affect did not have trial counsel’s omission Fritz, State v. result this case.
(1987). Although specific find the did not existence factors, following mitigating mitigating it found the catch-all fac tors: large sum of victim lost a to the which mental money caused and/or emotional caused distress, [sic] loss of his dispare apparent aspirations * * home ownership. The defendant was frustrated victim’s evasive, *36 further the and unethical by uncivil, in their
behavior business relationship. negatively knowledge defendant’s the The life was affected of the circumstances by regarding his birth and his mother’s relationships. distress,” “despair,” “frustration],” To have found “emotional factors, “negative” among mitigating life effects on the the have all of must considered the evidence mental or disease defect. 10. Did the court’s instruction that defendant’s extreme emotional disturbance must have influenced him commit add a the murder condition not required by statute? the provides mitigation the statute if the
.Recall suffering defendant was from “extreme mental or emotional dis 2C:ll-3c(5)(a). turbance” at the time of the homicide. N.J.S.A. that, effect, argues Defendant the court’s to the instruction c(5)(a) was that to find the factor must it find that the homicide product charged was the of the mental disturbance. The court the jury that shoving suffering [t]his [factor] is established evidence the defendant was an
from extreme mental emotional disturbance and that such disturbance influenced him to the commit murder. ** * mitigating In short, to find the presence this factor must determine you suffering that the defendant was from an mental or extreme emotional disturbance that such influenced him disturbance to commit murder. charge require The seems to a causal connection between the mental the requirement, disturbance and homicide. That defen- contends, dant significantly is not in the statute and amends the statute. unfairly charge deprive defendant the benefit did not
The c(5)(a) to a factor refers statutory mitigating factor. the mental or emo being the influence of extreme “under prosecu a defense to insufficient to constitute tional disturbance usually production related to tion.” The word “influence” is . Dictionary 1160 Third New International effect Webster’s (1971). extremely 'upset he if an were because example, For actor lover, be recently jilted by a we doubt that would c(5)(a) killing. in a gun if he mob mitigating factor were hired hand, have other if he were to just no There is connection. On jealous might be considered. rage, killed lover in a the factor his Martini, we supra, 619 A.2d State required emotion the extreme tacitly approved an instruction to commit [the defendant] al to have “influenced disturbance objection charge. The no to the In this case there was murder.” charge incorrectly the law and did not have state did bring unjust result. capacity to about an offenses 11. trial to consider incorrectly felony Did the court permit aggravation against homicide? of the of the the female members Ellison family motion, Defendant, limit pretrial in a asked the court to against the murder c(4)(g) factor committed offenses *37 kidnapping, burglary. Alter robbery, victim. Those included empanel separate sentenc natively, asked the court to defendant killing the of Ellison question is whether ing jury. The essential his rape of the of it occurred in the course was worse because them. robbery of one of family and the three other members of a obviously to the commission c(4)(g) is not limited factor The (For convenience, familiar we use the against victim. felony the of to instead certain “felony,” although our Code refers word Moore, fenses.) supra, 122 at in example, For State applied felony factor to to e(4)(g) the be 585 A.2d we allowed words, killing In other the killings mother and child. the of both was an killing of the child in the course of the of the mother explained: We killing in of the mother. aggravating factor the determine of the murders to [T]he does on the sequence statute not rely temporal to committed aggravating factor murders of that applies factor. application during, or the commission of a so that before, felony, the time of the sequence after [c(4)(g) is not ] murders this factor’s dispositive application. Thus, the or of the first of two murder victims would be robbery admissible rape determining eligibility in death the murder the second victim. Would it not illogical to allow be the consider first victim robbery of the but rape determining it not allow to consider first victim murder in death eligibility for the of the second? murder
[Ibid.]
reasoning applies
Killing
That
as
here well.
a father
raping
aggravating
the course of
his
be an
child could
factor in
of the
killing.
case
father’s
Defendant
on
relies
State v.
523, 569-70,
(1990),
McDougald, 120 N.J.
in which
“carefully
trial
Court cautioned the
court
to instruct the
necessary relationship
pursuant
on the
e(4)(g)
that must exist
murder,”
felony
suggesting
between
and the
if the
defendant had intended to
three
very
commit
murders
beginning, then the two consummated murders
would
have
“in
attempted
been committed
course of’
murder and
qualify
would not
aggravation
as an
under c(4)(g). The State
suggests that
McDougald
the real issue in
burglary
was whether a
(unlawful
crime)
entry
intent
with
to commit a
should be the
predicate felony
always
when the actor
kill
intended to
the two
agree
c(4)(g)
murder victims.
requires
We
more than a
showing
committing
at roughly
another crime
the same time
However,
place
as the
very
murder.
the statute is
broad.
McDougald,
agreed
we
that a
would decide at the retrial
whether the
had
the murder
engaged
committed
while
committing
felony.
other
Id.
12. Did other errors the trial? taint
Trial request counsel failed to the court to instruct the jury specifically military that defendant’s be service could found as mitigating factor. The court agree give did that it should simply but instruction failed to do We do so. not believe that this clear capacity bring unjust had the about an result. *38 agree
Nor do we with that cooperation his with State, by agreeing stipulation the to a unnecessary that made it jury required that daughters testify, Mr. to the be for Ellison’s mitigation charged stipulation relevant that the be as considered c(5)(h), properly read the the catch-all factor. The court under e(5)(h) (any to statutory language the other factor relevant defendant), adding jury the the that should consider character of potential the for rehabilita- all evidence and evaluate defendant’s stipulation agreement as tion. court characterized the The also argues jury the the between counsel and court. Defendant decision to have been instructed it was should defendant’s The stipulate daughters’ testimony, the not counsels’ decision. stipulation the contends that mischaracterization the defense jury significance to the mitigating unable to ascribe rendered the stipulation. it all the could consider the
The court’s instruction to
position that the
undermines
defendant’s
presented
(cid:127)evidence
the
stipulation.
significance
was unable to ascribe
Additionally,
evidence that defendant’s
because there is little
trait,
positive
stipulation
reflected a
character
agreement to
stipulation
fact
potentially
irrelevant
excludable.
not,
itself,
stipulation is
“relevant
entered into a
that defendant
trial
not to
it was error
court
to his character” such that
potentially
that such an action was
have instructed the
Ohio,
U.S.
98 S.Ct.
mitigating evidence. See Lockett
(1978)
may not exclude
(holding that courts
(2) opportunity the reasonable defendant would not have had to (3) provocation slaying; provo “cool off’ between the the the and (4) defendant; actually impassioned the cation and the defendant Mauricio, 402, actually 411, not off. had cooled State v. 117 N.J. (1990). Defendant on a ill relies “course of treat Guido, theory. 191, 211, ment” In State 40 N.J. A.2d 191 45 (1963), “acknowledge[d] we capacity the undoubted of events to * * detonating accumulate force argues long-standing
Defendant that the his ill course of treat- money, ment —the loss of the the victim’s refusal to it with discuss defendant, receiving and frustration in money his not all of the family holding captive stage after the for defendant’s —set view, rage. act of final In defendant’s those facts establish a rational to passion/provocation sufficient basis have warranted a instruction.
Although
acknowledge
we
away
and
embrace
“trend
from
practice
placing
‘the usual
types
provocatory
the various
”
Mauricio,
pigeon-holes,’
into
supra,
conduct
State v.
Moreover, typical physical “course illof treatment” involves Guido, In supra, abuse. State v. 191 A.2d it prolonged physical was the abuse of the defendant her husband required manslaughter jury. issue be sent to Mauricio, 414-17, supra, State v. 117N.J. at 568 A.2d when a engaged physical bouncer two confrontations minutes, approximately twenty within subsequent shooting roughly the bouncer a half hour later entitled the defendant to an on passion/provocation manslaughter. instruction passion/provocation charge Defendant is not entitled to a anything that as a attempts occurred result of his hold the He family money from captive and recover them. victim his provocation and passion his own created the circumstance of refusing court not err in from it. trial did should benefit passion/provo- charge jury on offense of the lesser-included manslaughter. eation *40 prove beyond to issue whether the State failed Another is
[411 is, c(4)(f), that whether aggravating a factor reasonable doubt Recall escape to detection for another offense. defendant killed his face and a that concealed evidence. Defendant wore hood years. for more than three Ellison had not defendant head. seen he and left the hood behind when Defendant blindfolded Ellison truthfully, psychia- spoken the State’s departed. Defendant had recog- said, thought had he that he Ellison not trist when stated clearly that him. do not believe the evidence established nized We warning report to thought the victims not defendant a to test, against to ensure detection. incident was sufficient to the light in most favorable which views the evidence any of fact could have found prosecution, whether rational trier is guilt beyond a reasonable of the defendant’s the essential elements (1967). 454, 459, We Reyes, doubt. State v. 50 N.J. proof jury to have found was for the there sufficient are satisfied c(4)(f). in the factor set forth of
Finally, argument raised the issue at oral defendant (at disclosing ineffective in not least whether trial counsel was of other penalty had been accused four phase) defendant police apartment. to his Bergen County that had led murders Presumably strengthen the mental-disease defenses. this would not appeal. issue in this We would to consider that We decline however, would any post-conviction proceeding relief expect, poor strategic have a counsel to been find such decision trial choice.
Ill not in this case did claimed errors The cumulative effect of record, completeness of deny the fair trial. For 574 challenge proportionality
we note and reserve defendant’s to the his death of sentence and his claims excessive viola sentences Yarbough, 627, principles tive of the v. N.J. State 100 498 A.2d (1985), denied, 1014, 1193, cert. 475 U.S. 89 L.Ed.2d. S.Ct. (1986). review, Following proportionality we shall resolve questions. respect those With to defendant’s claim that certain non-capital consecutively, run sentences were it clear is from the record that the court intended those sentences to be It Yarbough, supra, consecutive. referred to State v.
627, 1239, explained 498 A required. .2d deviation respect constitutionality With challenge defendant’s to the statute, death-penalty we adhere our decision State Ramseur, supra, 106 rejecting argu 524 A.2d death-penalty ments that the Eighth statute violated the Amend ment of the United States Constitution or paragraph Article Jersey New Constitution. We affirm defendant’s We convictions. also affirm his sentence *41 of death.
HANDLER, J., dissenting in part concurring and in part. appeal This is a direct from a conviction capital and murder Defendant, Harris, a sentence of death. Joseph by was convicted County jury knowing a Morris purposeful for the murder deny Ron Ellison. Harris killings; did that he committed the rather, he on psychiatric insanity relied two defenses: and dimin- capacity. ished
The Court affirms defendant’s murder conviction and death sentence. I believe defendant did not have the benefit of a correct charge jury to c(4)(g) aggravating the on the existence the Further, on, properly factor. the was not instructed and so incorrectly understood, mitigating significance the of defendant’s problems. severe mental and emotional For I those reasons I, conclude improperly that defendant was sentenced death. therefore, from dissent the Court’s affirmance defendant’s death sentence.
I trial, penalty the that at the Defendant observes if c(4)(g) factor it aggravating that it could find the instructed during course of a murder was committed the that the determined instruction, That robbery, burglary, kidnapping or sexual assault. thoroughly fragmented argues, a would allow defendant tong- aggravating factor so felony the murder nevertheless find a juror predicate felonies warranted every as that one of found Thus, people jury with three aggravating factor. a finding of assault, during three a sexual convinced that the murder occurred during a during kidnapping, a three during robbery, a three under the instructions aggravating could factor burglary, find contends, result, is unconsti- given by That the court. tutional. by averted the use a fragmented can be determination
Such charge that it specific unanimity charge, a that instructs only is a unanimous factor if there aggravating can find underly felony that constitutes finding specific on the offense concludes that no e(4)(gj aggravating factor. The Court ing the re required, or if one is unanimity is specific such instruction request failing quired, waived the instruction that defendant harmless, finding Finally, error it. the Court holds charged jurors all of the convicted defendant of because the felonies, unanimously in they agreed have underlying must 562-67, 662 each Ante at penalty phase the existence of one. on specific unanimi of a A I conclude that absence .2dat 352-54. felony respect to the ty penalty phase with instruction c(4)(g) aggravating factor is unconstitutional. predicate is to the would, therefore, death sentence. I reverse the at which the overemphasized penalty trial be
It cannot *42 or another c(4)(g) aggravating factor prove State seeks factor, c(4)(f), predicate on a as which is based such aggravating predicate possible offense, more than one there is where sentence, may offense, jurors, determining appropriate example, the differently. For predicate felonies weigh different 576
c(4)(g) aggravating may factor weigh strongly more for death when the underlying felony is sexual assault than when it is burglary. jurors And because aggravating must find factors unanimously, it they agree is essential that unanimously about the underlying felony supports that c(4)(g) factor. The absence of specific unanimity instruction jury means that the could have agree unanimously failed to on particular the existence of a predicate felony, but nevertheless c(4)(g) have found the aggrava- ting not, event, factor. It should possible that be for the determine that the factor has been established.
The trial court here failed to advise the that it agree must unanimously on the underlying felony existence of an in order to find c(4)(g) factor. The court stated: aggravating Now far as as the factor that’s listed as B on verdict your sheet [c(4)(g) aggravating ] for to find this you factor to be must be present, you satisfied committing fleeing- the defendant committing or was after the crime of burglary, kidnapping. sexual robbery, assault, or The crimes must have occurred at times and which aggravating places were not for this substantially separate
factor to be present.
Parker,
628,
State v.
633,
(1991)
Schad,
(quoting
Arizona,
624,
v.
631-33,
501
2491,
U.S.
111 S.Ct.
2497,
555,
(1991)),
115 L.Ed.2d
the Court observed that “there
general
is no
requirement
that the
agreement
reach
on the
preliminary factual issues which underlie the verdict.” The Court
recognized, though,
specific
that a
unanimity instruction will be
required
single
when “a
proven
crime can
be
different theories
”
based on different
...
acts and
on different evidence....
Id. at
635, 592 A
(citing
Melendez,
.2d 228
quoting People
Cal.App.3d 1420, 1433-34,
(1990)).
Cal.Rptr. 599,
Citing
Parker, supra,
577 was each other and whether there marginally related to Parker, supra, 124 N.J. at tangible of confusion.” indication 1010, Ryan, United States (citing 828 F.2d A.2d 228 592 (3d Cir.1987)). in Presumably, the finds this case that Court predicates c(4)(g) aggravating the factor serving the as offenses contradictory only marginally to one nor related neither were another. that in affirming today, the Court notes
In the death sentence future, jurors penalty phase instruct of judges in the the should predicate felony necessity unanimously specific on a agree the aggravating factor. Ante at A .2d at in to find an order give tacitly failing recognizes the error 352. The Court thus felony the unanimity charge the or felonies constitute a on finds, nonetheless, that in c(4)(g) aggravating factor. The Court unanimity instruction is not reversible error the lack of a this case predicate of all of the convicted defendant because Ante A at 352 phase. in the .2d guilt . felonies simplistic in the but analysis is too facile. Its flaw lies an Such guilt phase of finding in the assumption that the fact false penalty finding of that fact in the equates with a perfectly trial believe, necessarily former, phase. the Court seems to leads The to the latter. view, felony guilt phase, even my conviction of a felony unequivocally suggests that the all the evidence
when murder, does not lead automatical- committed the course felony. finding aggravating predicated factor on that ly to a quality of in the deliberative fundamental difference There exists pur- encompasses the distinct findings. The difference the two juries serve. two poses guilt- penalty-phase similar, though, at least in this: must deliberations are felony of the agree unanimously in order to convict a defendant unanimously felony agree on the guilt phase, again and must Therefore, factor. finding aggravating of the that underlies a can that it find penalty phase jury specifically must be instructed aggravating only upon agreement factor unanimous on the underlying felony. *44 Brown, 481, (1994) 576-86,
In State v.
138
A .2d
N.J.
651
19
(Handler, J., concurring
dissenting), I
principles
and
reviewed the
that,
believe, require
giving
specific unanimity
I
of a
the
instruc
that,
this,
tion in the circumstances of
and of
case. We have
juries
recognized
reaching
that
perform
ultimate verdicts
a
function far more embracive and nuanced than that of mere fact-
finding.
special quality
jury’s
That
of
function constitutes a
part
by
fundamental
of
right
jury,
right
a trial
a
which
place”
holds “a hallowed
in the firmament of American law. State
Collier,
117,
(1982).
122,
v.
N.J.
jury
90
579 Montana, See, right by jury. e.g., to a trial Sandstrom tional 5, 39, 5, 2450, n. n. 61 L.Ed.2d 46 n. 2455 442 U.S. 516 99 S.Ct. (1979) (holding bars directed verdicts that federal constitution 5 regardless of strength criminal against defendants in cases (1990) evidence); A.2d 951 Coyle, N.J. 574 State v. state’s charge improper crimes was (ruling sequential successive fully considering charge); each prevent jury from because it can Collier, (invalidating rape at 447 A.2d supra, N.J. charge of trial directed verdict on lesser conviction where court minor; delinquency noting of a that direction contributing to imping[e] charge might “improperly on verdict on lesser Simon, deliberation”); supra, 79 sensitive area instructions, 199-200, (ruling special piecemeal A .2d 861 interrogatories, fragmented deliberations can result “subtle may jury’s capacity ulti undermine to determine coercion” *45 innocence). guilt or mate criminal statute, right by to
By has the Legislature the extended trial 2C:ll-3c(l). All N.J.S.A. jury capital-sentencing proceedings. to jury govern a duty the of and its principles the that define of then, sentencing deliberations, phase in full to apply measure the jury, jury, sentencing guilt A like a bears of this trial. defendant’s 2C:ll-3e(3). responsibility of N.J.S.A. the ultimate decision. guilt quality a the criminal There is in determination of may add simply of the facts measured as the sum cannot be reason, every guilt must be up guilt. to For that determination guilt of and independent of other determination singular and it. only that bears on the evidence must be based on to jury is on make ordinary in which a called run of cases jury to guilt, require the consider of we successive determinations supporting a vantage of point guilt the evidence from a fresh previously though that same evidence conviction even criminal proceeding- jury prior criminal by that same considered another, supra, related, 105 Ragland, crime. adjudicating albeit 195, (holding safeguard A that to defendant’s at 519 .2d 1361 N.J. jury charge, [must] be on a second “the presumption of innocence 580
instructed no uncertain terms to consider anew the evidence verdict”); previously disregard completely to' prior admitted but its 209, (same). Ingenito, supra, 87 at It N.J. is even imperative capital- more reconsideration be in a such ensured sentencing trial. vastly to a to
The decision sentence death exceeds in difficulty intellectual and moral determination ultimate Purnell, guilt. 518, 553, criminal State v. A .2d 601 175 (1992) (Handler, J., concurring dissenting). The and extraordi nary severity irreversibility penalty and height command a degree application principles ened care in the of the of our law. See, Ohio, 605, 2954, e.g., 586, 2965, Lockett v. 438 U.S. 98 S.Ct. 57 973, Ramseur, (1978); 123, 316, L.Ed.2d 990 State v. (1987). Thus, right A.2d trial capital to sentencing protections greater necessary invokes even than those preserve right by jury to to trial guilt. on the issue require
If scrupulously we a anew deliberate separates evidence in case in a reconsider a which bifurcation two guilt arising evidence, e.g., determinations out of Rag common land, 1361; supra, 105 Ingenito, supra, N.J. at 519 A.2d surely N.J. at 432 A we .2d must insist that the separates reconsider evidence when a guilt bifurcation from a case, capital-sentencing determination. In the former again capacity particu considers evidence for its to establish latter, lar element as it on guilt, bears criminal but in the case, instant, wholly the decision on that element exists new Now, larger deliberative universe. deliberation not aim does innocence, *46 guilt establish criminal but judge rather whether the defendant shall live or die. fully
We cannot or divine dynamics fathom the deliberative of a jury’s put on decision whether to a defendant to death. For that reason, even within framework of substantive ex- standards instructions, plained by deny clear we cannot a the decisional flexibility and freedom of conscience to examine anew the evidence previously considered and to resolve the facts to be found from
581
power to re-examine
significance of this
that evidence. The
by
part
in
in the
previously
inheres
considered
evidence
may
arisen.during
jury’s
have
earlier
nature of
doubts
therefore,
in
jury,
A
be allowed
a successive
must
deliberation.
any lingering
give
and to
those
to revisit
doubts
deliberation
spare
See
weight sufficient to
the life of
defendant.
doubts
McCree,
1758, 1769,
162, 181, 106
90
v.
476 U.S.
S.Ct.
Lockhart
137,
Balkcom,
573,
(1986);
153
v.
660 F.2d
580-81
L.Ed.2d
Smith
882,
(5th Cir.1981)
law),
Georgia
denied
(applying
cert.
459 U.S.
181,
(1982). Many
recognize
courts
its
Collins,
612,
See, e.g.,
21 F. 3d
Andrews v.
life-or-death decision.
(5th Cir.1994)
Jackson,
(Texas);
623,
F.2d
Stringer
21
v.
862
n.
(5th Cir.1988)
1108,
arguing
(approving
strategy of
1116
counsel’s
Stringer
jury),
grounds
rev’d on
sub nom.
doubt to
other
residual
(1992),
Black,
222, 112
1130,
Aggravating unanimously. must Bey, factors be found State v. (1988) II). (Bey A .2d finding After factors, aggravating existence of mitigating jury must weigh against predicate those factors one another. If a crime is factor, jurors, weigh element of aggravating obviously, may is, possible predicate one or differently. more of the crimes It therefore, critically important jury be unanimous with respect underlying felony to the supporting aggravating fac Otherwise, may here, tor. jurors as have been the case who possible convicted the defendant of all four underlying felonies may i.e., tempted weigh be cumulatively it give factor extraordinary weight they because are mindful that four felonies fall within its ambit. Court, applying doctrine,
The plain-error conventional under- an independent takes purports examination of the record and properly jury know what a instructed would have To done. presume knowledge, to have such must Court assume that juries in the of determining context a life-or-death sentence under- That, merely fact-finding however, take function. is not the case. jury anew,
Even if properly we assume that the did deliberate we acknowledge whether, must way knowing we have no in deliberations, those unanimously possi- found of the predicate ble every juror We individually felonies. know that found predicate felony, the existence some because as whole aggravating found the factor. But because the was not necessity instructed agreement on the specific unanimous on a predicate felony, cannot we know whether fact the did thus unanimously agree. therefore, majority,
The guilt looks vain to the verdicts for guidance support concerning penalty of the events deliber ation. There is none that it simply enables to use those verdicts ratify Court, noted, death defendant’s sentence. The as ac knowledges give that it error specific unanimity is not to charge these circumstances. A Ante at .2d at 352. *48 error, guilt fact of the relying on the finding plain of no Court’s verdicts, is not defensible.
II
to show that
presented in this case
was
evidence
Substantial
however,
jury,
The
problems.
mental
serious
defendant suffered
that
statutory mitigating circumstances
failed to find either of
circum
find certain catch-all
evidence.
It did
implicate such
but, contrary to the
impairment evidence
involving mental
stances
Court,
directly reflect his mental
not
suggestion of the
those did
569-70,
Defendant attributes
Defense He time of the crimes. actions at the responsible for his schizophrenic. Dr. paranoid diagnosed as a chronic defendant society would although knew Apolito testified they “right.” wrong, felt were to be he judge his actions Eshkenazi, as diagnosed defendant expert, Dr. Azariah State’s the careful He noted personality disorder. having a schizoid crimes, attempts into defendant’s planning that went identity, defendant made to conceal his as evidence of defendant’s knowledge consequences of the of his actions.
Uncontested and abundant evidence established defendant’s deep instability quite emotional and disturbance. Defendant was literally prison born to mother then incarcerated at the New newborn, Jersey facility correctional As a he Clinton. given arrangement to an over aunt and uncle to raise. When that failed, uprooted defendant was and sent to live with his mother’s aunt and her husband. mother, although
Defendant never had much contact with his was, nearby apparently, she lived in He Paterson. ashamed of his mother, fathers, who bore thirteen other children five different *49 discouraged having any relationship and defendant was from with her, family. as she was considered an outcast the Defendant years did not meet his father until he eleven was old. began early.
Defendant’s abnormal behavior School teachers suspected problems, that defendant had severe emotional and evaluation, although they repeatedly suggested psychiatric none By grade, was ever done. the fifth defendant had invented an imaginary began friend. He soon to the hear voice of an Indian accompanied by spirit “Ninja Chief. also Defendant was the of a required great secrecy Warrior” who him act to with in all his “Ninja” Asia, dealings. spirit That go directed defendant to to assignment performed by joining the United States Navy requesting Philippines. to serve the Defendant was granted general discharge, although his service record describes “complete him provisional diagnosis as a misfit” with a of a schizoid disorder. eventually job Ridgewood post
Defendant landed a in the office subject where he discipline. often to Postal Service He that, became being singled persecution convinced he was out for deliberately because of his race. He believed that his co-workers spread germs attempt him him near in an to make sick. He took up occasionally fatigues karate and would come to work combat poses job. supervisors and break into karate on the His at the counseling. He psychiatric suggested that he seek post office he was arrested post office when working at the refused. He was County in Bergen 1991. murders in for c(5)(h) mitigating “catch-all” clearly relates to This evidence following on that instruction court delivered factor. The factor: [sic] mitigating verdict sheet says any factor is listed as D on your fourth or or record to to the defendant’s character which is relevant
other factor offense. circumstances of the all single consider rather it factor, you is not requires This really his character, his life, to or concerns the defendant’s received as it relates evidence of the crime as the circumstances record and the totality characteristics or his for rehabilitation. [as] the defendant’s well potential mitigating listed be may other than those This list is non-inclusive factors mitigating on find are listed or not the factors you and considered whether found page for I on this you You will note that have left space verdict form. mitigating find to exist. you may list other any factors ijs [*] i¡í [*] [*] v [*] [*] mitigating factor, find to be a any other which you Now list any you may factor his character conduct, to the defendant’s which believe is relevant other you factor offense or other circumstances of the or his record or rather factor [sic] restricted sheet, been listed on the verdict you’re which has not added). (Emphasis those verdicts. bound by ob argument with the today defendant’s dismisses The Court all it could consider that the trial court told servation c(5)(h) 567, 662 Ante assessing the factor. of the evidence expressly time, ever though, did the court At no A .2d at 354-55. consider, purposes jury thát it could inform the *50 found and factor, previously considered it had catch-all evidence establish purpose the unpersuasive for or otherwise insufficient charge explicit An statutory mitigating factors. ing one of the consider mental jury that it should informs the specifically that c(5)(h) required otherwise is because under impairment evidence to the in relation rejecting the evidence jurors may that assume e(5)(d) relevance c(5)(a) the they have exhausted factors and were Thus, instructions although the trial court’s that evidence. tendency jury’s correct, the could not alleviate they did not and impairment the mental already considered that it had assume Thus, defendant, by “any although phrase evidence. as noted the factor,” used, repeatedly jury other the could understand that any you phrase only already to mean other factor that have not rejected. considered indirectly acknowledged significance
This the of concerns Court statutory interplay about the between the catch-all factor and the Martini, 176, mitigating mental state factors in State v. (1993). 300-08, There, rejected the Court the judge’s argument emphasizing qualify- that a trial instruction the e(5)(a) (“extreme”) c(5)(d) ing language (“signifi- in factors cant”) impermissible weighing created barrier to the of rele- mitigating impairments. the vant evidence of defendant’s mental However, charge given significantly enough the in Martini differs charge given the from here to warrant different result. The charge given by explicitly trial court Martini more directs anything, including perhaps already consider evidence Thus, statutory apparent considered under a factor. it is that the jury there that understood it could reconsider evidence. The charge following part Martini included the as trial court’s e(5)(h) charge on the factor: mitigating during All evidence is to be considered whether it you, by appears first of the trial from witnesses called the State or the and from defense, part during or it this of the trial from evidence, the evidence physical appears phase mitigating side, either see produced by you present. factor added). (emphasis phrase
Id. at
619A.2d 1208.
That
“or
last
any mitigating
you
present”
factor
see
indicates to the
that it
bearing
mitigating
part
can use evidence
on other
factors as
of its
catch-all consideration. Defense counsel in Martini also informed
you
slightest
during
if
“[e]ven
had the
little doubt
your
you
course of
on the first trial
can
deliberations
take into
consideration and utilize those
Ibid.
[factors].”
determined in
Court
Martini
there was “no reasonable
applied
challenged
likelihood that
had
instruction
way
prevents
constitutionally
the consideration of
relevant
(quoting Boyde California,
evidence.” Id. at
619A.2d 1208
370, 380,
1190, 1198,
494 U.S.
110 S.Ct.
108 L.Ed.2d
*51
(1990)).
part
fact that
on the
The Court’s determination rested
factor,
instructed that it
respect to the catch-all
with
at
from
of the trial
their
understand,
jurors
without
would
is reason to doubt
there
instruction,
mental
they
evidence of
explicit
could reconsider
to a level
they previously concluded did not rise
impairment that
It
statutory mitigating factor.
assumes
to establish a
sufficient
instruction,
explicit
suggest
jury,
without
much to
too
finding that
between
to fathom the differences
would be able
mitigation under
impairments
mental
constituted
defendant’s
c(5)(a)
c(5)(d)
evidence
finding mitigation on
same
c(5)(h).
under
(9th Cir.1992),
Lewis,
the court
considered situation consider such direct the trial court failed to noted that the not meet the statu impairment that did psychological evidence non-statutory “significant impairment” as tory requirement of court ruled at 1078. The mitigating circumstance. Id. “[bjecause in this case was mitigating evidence a risk that there is *52 considered, fully
not Jeffers’ sentence of death cannot stand.” Id. court, McCormick, 1153, citing F. 2d at 1084. The Smith 914 (9th Cir.1990) (holding mitigating evidence of mental 1166 impairment penalty phase capital from could be excluded sufficiently simply trial because it was not substantial to meet permitted statutory requirement), noted that it is “not state factfinder, presume that because evidence was admitted before the necessarily given (quoting at it was consideration.” Id. 1166). Smith, supra, at 914 F.2d net, safety catch-all factor as a and in order for it to
“The
acts
Martini,
properly, specific
required.”
function
instructions are
J.,
357,
(Handler,
supra,
dissenting).
at
131 N.J.
L.Ed.2d at case, above, charge arguments and in issue this as noted repeatedly potentially confusing “any used the reference to other passage portion factor.” A from a of the trial court’s instruction to the is illustrative: legislature good [T]his ... in factor is fact an invitation to use by you your
judgment, to determine whether there are one your openness your compassion or more factors that are not asseiied or listed specifically by by legislature mitigating as factors this case. present The tenor of that instruction is to focus the on issues and by already evidence not addressed the statute or defendant. statute, impairment explicitly by Because mental is addressed impression analyzed only the issue is to be connection statutory quite plausible. with the factors is shortcoming inadequate That kind of instruction— —an cannot, my opinion, arguments be overcome or rectified See, Marshall, closing e.g., supra, statements of counsel. (1991)
1, 246, (Handler, J., event, dissenting). any 586 A .2d were, totally unavailing. counsel’s efforts Defense counsel’s sum psychiatric mation testimony. included reference to the He jury’s focused the attention on the “defendant’s emotional and determining mental state in whether there was evidence that defendant suffered a mental or emotional disturbance or had capacity diminished due to mental disease or Defense defect.’’ c(5)(a) language tightly language counsel’s tied to the of the (“extreme disturbance”) e(5)(d) (significant impair emotional ment) mitigating factors.
Finally, jury: defense counsel advised the mitigating there I are, And there be that haven’t even dismissed that may factors jurors as feel are you may appropriate. [Wjrite mitigating ... down factor that feel is that feel any you you appropriate, something background there’s Hams’ which allows to find a Joseph you mitigating though though it, even I didn’t discuss even it’s mentioned factor, not evidence, having jury psychiatric But thus directed the to the request counsel failed to that defense be instructed explicitly give mitigating weight that it could under evidence c(5)(h) Here, factor. was instructed to consider addressed, issues that were not but was not directed to reconsider already evidence examined. overemphasized point conveyed
It cannot be that the to be complex. though The it is must understand has rejected impairment the mental evidence as it considered e(5)(a) e(5)(d) factors, relates to the it is nonetheless free to c(5)(h) reconsider evidence under the factor.
Finally, jury, one cannot fail to be troubled the fact that this c(5)(h) factor, considering any mitigation when did not find resulting problems. from this defendant’s obvious mental The 354-55, 567-68, proposes, at Court ante at 662A.2d certain c(5)(h) psychiatric found under do reflect the circumstances may legally disagree. I Defendant not have been evidence. emotional distur- may an “extreme He not have suffered insane. capacity conform his His time of his crime. bance” was, But he “significantly impaired.” may have been conduct seriously individual. indisputably, a disturbed reversible give specific instruction constitutes failure to The mental weight of the evidence of one considers the error when may mitigating factor jury’s to find impairment. The failure jury likely not understand fact that the did attributed to the be constitute a non- of mental illness to that it could find the evidence if find that evidence statutory mitigating factor even it did not statutory factor. sufficient to establish capital related to a defendant’s importance of evidence recognized that itself has is obvious. This Court mental condition many troubling characteristic of mental illness is a recurrent and Zola, 112 Jersey. defendants in New State death-sentenced (1988). 384, 437, study notes an One statistical 548A.2d 1022 Jersey’s capital among New alarming prevalence of mental illness Bienen, Reimposition Capital Leigh B. et al. The defendants. Jersey: The Role Prosecutorial Discre Punishment in New (1988). tion, Shapiro, Andrew L. An Rutgers L.Rev. 1 See also Execution, 11, 1995, Times, May (reporting- N.Y. at A29 Insane Alabama). capital of insane imminent execution- impairment importance of mental underscores the Martini itself Moreover, bearing direct on deathworthiness. evidence and its *54 jurors have with already the difficulties this has noted Court Moore, 420, 453-54, psychiatric evidence. State v. (1991). A.2d 864 case, in this concerns about the
As is clear from the voir dire psychiatric testimony were jurors’ willingness accept legitimate to jury ques- critical throughout the This faced four evident case. (1) testimony: defendant’s involving psychiatric whether tions (2) defense; insanity requirements of the mental condition met the requirements of diminished condition met the whether his mental (3) require- capacity; whether his mental condition satisfied (4) e(5)(a) c(5)(d); whether there was ments and/or mitigation to be found at all in mental defendant’s condition under e(5)(h). four, getting question jury Before to this could well have my felt that it was done with defendant’s mental condition. opinion, jury explicit explained needed instruction that impairment Capital fourth use for mental evidence under the Act. Murder replete
The evidence is with indications of defendant’s mental instability, yet jury impairment mitigation. found no mental explicitly charge jury regarding obligation The failure its c(5)(h) impairment reconsider the mental evidence under could reasonably have affected the outcome of this case.
Ill argues jury Defendant that the should have been instructed that exists, statutory mitigating if a credible evidence of factor then the circumstances, jury agree. must find that factor. Under the I disposes by referring The Court of this claim to N.J.S.A. 2C:11- 3e(2)(a), provides which that the defendant bears burden of production, proof, respect mitigating but not of with to the factors. A at Ante .2d 353. (such mitigating
The existence of at least some factors as history) referring prior implicate to a lack of criminal do not must, qualitative judgment jury. of the I believe that a court in a case, proper jury instruct the that it must find such a factor when the evidence of its existence uncontested. The existence of is factors, though, may jury qualitative other demand of the judgment, may and thus a court not instruct the to find these. exists, mitigating go Once a has found that a factor it must on weight to evaluate the relative of that factor the ultimate may to the determination. court never instruct the as factor, believe, weight may, of a but it I instruct a incontestably factor exists and should be found when the evidence underlying establishes the facts the factor.
Concededly, among according there is distinction factors Thus, youth degree to which their existence is obvious. *55 history altar-boy of an 18-year the lack of a-criminal old or extreme emotional distur- in a sense that
defendant is obvious usually only with fact that we can rarely But the bance is. disturbance exists difficulty an extreme emotional decide whether case, existence, any appropriate in an not make the fact of its does disturbance, words, I extreme emotional less sure. other youth, finding submit, just objectively such that the can exist as as does not involve of extreme emotional disturbance of the existence finding age than does a about “qualitative” judgment more difficulty findings only in the history. The are distinct or criminal objective fact. discovery of the of the a trial court could never disagree I with the Court that thus can factor. There to find the emotional disturbance direct direct the so obvious that a court should be a case of disturbance finding.
IV expressed, I conclude that defendant’s death For the reasons invalid, and, therefore, I dissent from Court’s sentence is affirming sentence. judgment defendant’s death Justice Justices For WILENTZ affirmance —Chief O’HERN, GARIBALDI, POLLOCK, and STEIN —5. part; part For reversal in affirmance —Justice HANDLER —1.