State v. Harris

For Justice PORITZ and Justices affirmance —Chief POLLOCK, GARIBALDI, STEIN COLEMAN —5.

For reversal —Justices HANDLER and O’HERN —2.

716 A.2d 458 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. HARRIS, AMBROSE A. DEFENDANT-APPELLANT. Argued September July 1998. 1997 Decided 132 Thelander, Pugliese Deputies T. Assistant

Frank J. Donald (Ivelisse Defender, Torres, appellant argued Public for cause Defender, attorney). Public Hulett, General,

Nancy Deputy Attorney argued A. the cause (Peter Vemiero, Attorney respondent Jersey, of New General attorney). by opinion the Court was delivered

O’HERN, J. Allen, 132, 146,

In concurring opinion his State v. 73 N.J. 373 (1977), A .2d 377 Justice Pashman described a similar case as one involving interplay “the of our most basic between two constitu- also, guarantees speech tional fair are trial —which as —free noted, correctly Mr. Black ‘two of the most Justice cherished ” 146, policies (quoting of our civilization.’ Id. at 373 A.2d 377 252, 260, 190, 192, California; Bridges v. 314 U.S. S.Ct. 86 L. (1941)). Ed.

In capital this case a has defendant convicted Huggins murder of Kristin and recommended that he sen- be publicity tenced to death. con- Pervasive media surrounded the Maxwell, Sheppard duct trial. v. 384 U.S. 86 S.Ct. (1966), Supreme 16 L. Ed.2d Court held [d]ue free accused receive requires impartial process from outside influences. Given the modem communications and pervasiveness effacing prejudicial jurors, from the minds of the the trial difficulty publicity strong weighed courts must take measures to ensure that the balance is never against the accused. And tribunals have the to make an appellate duty indepen- dent evaluation of the circumstances. 86 S.Ct at L. Ed.2d at [Id. 620.] 362, 1522,16 Defendant contends that he was denied a fair trial because the strong court did not “take measures” to assure that trial his prejudicial free from the publicity. outside influence of Central (1) appeal issues raised his are whether the trial court should granted venue, is, change have defendant’s motion for a of whether it should have transferred the case for trial outside the (2) committed, county whether, where the crime was because recurring prejudicial trial, publicity during of the course of the questioned jurors individually should have concerning their exposure publicity. to such midtrial We find that the measures court, by taken jury composed the trial the selection of a of out-of- residents, county general questioning jurors during and its concerning any exposure the trial publicity sufficiently to trial ensured that trial defendant’s was free of extraneous influences. We find no other errors that tainted his trial. affirm the We convictions for murder and other crimes found and affirm the Proportionality sentence of death. place review will take in later proceedings. involving

Because in penalty cases the death a trial court’s responsibility under both the federal and state constitutions is to danger “minimize prejudice adjudicatory will infiltrate the Williams, (1983) State v. process,” 39, 63, 93 N.J. 459 641 (Williams I), we hold that when hereafter there is a reasonable capital likelihood that the trial of a ease will be surrounded (as presumptively prejudicial publicity phrase media is under law) stood in the the court should transfer the case to another devices, county. against Other such publication as restraints of concerning sequestration jurors, material the trial or the proven have either to be unavailable to counter the effects continuing prejudicial publicity produce contrary or to a effect may than desired. In some cases a court conclude that an initial inherently prejudicial publicity tide of will have subsided at time of 134 change if require selection

trial and mil not venue Koedatich, impartial jury. v. process yields E.g., State (1988), denied, 273-82, N.J. 548 A.2d 939 cert. 488 U.S. (Koedatich I). (1989) When, L. Ed.2d S.Ct. however, is that there a reasonable likelihood of a court satisfied capital presumptively continuing at a recurrence trial, might change of prejudicial publicity that infiltrate the required. venue is

I

FACTS 17, 1992, parents’ Huggins On Kristin left her home December County, paint Pennsylvania, to a mural at the Trenton Bucks Club, driving Toyota sports was a red in downtown Trenton. She According Huggins car. never home. to the State’s returned case, Dunn, Harris, raped the aid and Ambrose with of Gloria Huggins carjacking robbery. killed in the of a and course 18, 1992, Huggins’ car on were Police discovered December but stages investigation, unable locate her. In the later to police informed that defendant had been seen driv- witnesses plates ing Toyota Pennsylvania night Hug- a red with on witness, gins’ disappearance. Tariq Ayres, police One told the girl” that Harris said he had “knocked some off white “hijacked” reported that a the car. Another witness Harris had (automatic machine) containing an and a wallet ATM teller card picture An Huggins’- with on it. ATM video driver’s license attempting showed defendant to a cash withdrawal mаke $400 night. Huggins’ from account on that 18, 1993, February police Dunn On Gloria to the with her went sister, Williams, she police Eleanor and told knew where was, Huggins’ body claiming at first the two had found body following “psychic They by Williams’ about vision.” asked money. reward police Huggins’ badly decomposed body.

Dunn led the Kristin day, gave police That a same she statement about the murder. half, year provided police Over the and a Dunn next with containing several additional statements a inconsisten- number of greatest year cies and significance, additions. Of she a waited police having raped Hug- a half to inform the about defendant’s gins. rape, police When she did inform the about she lied about the circumstances. County a Jury

On June Mercer Grand defen- indicted conduct, purposeful knowing felony dant for or his murder own murder, assault, robbery, kidnapping, aggravated posses- sexual handgun purpose, sion of a for an unlawful and various theft aggravating offenses. The State served a notice of factors as a penalty, alleging basis for the that the commit- death murder was felony, ted in of a 2C:ll-3c(4)(g), the course N.J.S.A. and for the detection, 2C:ll~3c(4)(f). purpose escaping N.J.S.A. motions, pretrial

Defendant number of of which filed several appealed Appellate interlocutory were on Division an basis. motion, significant pretrial publicity A pretrial based massive area, or, alternative, change the Trenton was for a venue in the empanelment county aof from a other than The Mercer. change agreed court denied motion for a of venue but empanel County. parties sought from Hunterdon Both appeal. out-of-county jury leave State contended County unnecessary. argued was Defendant that Camden proper juror the source. Appellate granted appeal

The Division leave to and held that out-of-county jury defendant was entitled to an and the trial that makeup county court should consider the racial of the from which Harris, 409, 419, jurors drawn. N.J.Super. would be State v. (1995). basis, Appellate 660 A.2d 539 On that the Division held jurors choosing pool that the trial court had erred in of from County, minority population. Hunterdon which has a Id. at small 420, remand, request denying On after A.2d 539. defendant’s venue, change to motion trial reconsider the for a of court county Burlington County as the from which would selected selected, suggestion County rejecting Camden be defendant’s be used. trial, closure of for exclusion of also moved for

Defendant testify, separate guilt- if his to and for criminal record he were juries. phase penalty-phase The court denied those motions. and in photographs The did limit media of defendant order court appear. did not shackles 10, 1995, January

Jury and selection occurred between October (the during several voir dire 1996. Defendant made motions jurors), relating process questioning potential principally to of dire, attorney-conducted voir the court’s termination of the court’s prospective jurors, inquiry racial limitation on into the attitudes death-qualification. delay trial voir The court refused Division, Appellate dire further to consider these motions. The basis, taking interlocutory appeal emergency on an affirmed an refusal, appellate panel expressed one but member argument scope concern oral the voir on racial about dire questioned extensively bias. trial more The thereafter concerning racial bias. complete, dire was court denied

After voir defendant’s jury panel allegedly motions to dismiss the entire because faulty process, pretrial selection to reconsider various other issues raised, juror security protect jury and to increase in order to publicity, newspaper pervasive from which headlines included displayed prominently at courthouse newsstands. January 10, guilt phase began on 1996. The reached testimony provided February

its verdict on 1996. Dunn’s only linking direct evidence defendant to the crime. From the following evidence a could have found facts. Dunn and spoken defendant met several months before the murder and had give drugs several occasions thereafter. Harris offered her ex-boyfriend “pop” giving who her trouble. part late November defendant asked Dunn to take agreed holdup. participate at first but She hesitated return drugs part proceeds, buy for a which she intended to use to agreed for resale. The two to meet at 8:00 a.m. on December 17. bicycle. gun possession. Harris came on a He had a in his He “carjack” decided to someone that he and Dunn would not have so through they planned rain walk to the luncheonette rob. through two took a route downtown Trenton at time when many employees arriving were for work. going people

Dunn asked defendant what he was to do with the Dunn, carjacked. According car who were he defendant up they if said he would “tie them and leave them somewhere” they kill if were black. He said he would them were white.1 part Dunn claimed to want no of a murder but to have remained because she feared defendant. Street, passed they

As the two the Trenton Club on West State young Toyota parking saw a woman drive red into the lot. said, going get Harris “I’m that bitch.” He followed on his bicycle driveway, leaving to the rear of the Dunn in the front area. Dunn did not leave because she feared for herself and for the returned, driving Huggins woman. Defendant the car with passenger Huggins Dunn seat. was “relieved” that was then unhurt. get Huggins

Harris told Dunn to into the car. sat on Dunn’s lap. Huggins, Dunn tried to calm but defendant told Dunn to shut up. He drove to a deserted area under the Southard Street Bridge, Perry near Route 1 and in Trenton. Street He asked Huggins open how to the front trunk of the car. Harris forced Huggins image into the trunk because he feared that the of a riding in sports white woman a two-seated car with a black man suspicion. and woman would create 1The State did not disclose that defendant had made this statement until Dunn guilt testified at trial. After the the defense about the State's phase, complained (given implications). failure to disclose the evidence before voir dire its racial

The State that it had not known that Dunn had intended to make the responded statement until after voir dire was complete. trunk, Huggins in Harris End Avenue the drove to West

With parked. He back to the Club to recover and then walked Trenton bicycle. employees saw to the the Two club defendant walk rear bicycle. parking lot a.m. and return Harris of the at 9:15 with Huggins car back Street area. He had drove the to the Southard raped Huggins, ignoring get out of the trunk. then Defendant her mercy. Huggins rape, put the defendant back in cries for After kill opened the trunk but then her. He the trunk and decided she shot her the back of the head as climbed out of the trunk. body placed the a mattress located a short distance from He under the car. to get

Harris went to mother’s home a shovel. When he his returned, planned Huggins Dunn again. he to shoot asked him it, why doing Huggins already was he was since dead. Defendant sure, Huggins and he in the said he wanted make shot face. dug grave in which Dunn Defendant shallow he and buried body. Huggins’ thirty also testified took Dunn that defendant Huggins’ an Dunn ATM card from wallet. claimed dollars get any that she did not of the cash. looking” anyone

Harris for Dunn if told threatened to “come she prevent- what had Dunn claimed that his threats about occurred. going police immediately, from ed her to the as did her fear of being implicated Huggins’ crimes herself. the When news news, appeared disappearance on the Harris television called say, Dunn to “That is on the white bitch news.” pieces physical evidence Several linked defendant gun expert crimes. The that a linked to the ballistics later crime during from seized defendant unrelated arrest on Decem- 27,1992. nephew further ber Defendant’s connected defendant to nephew gun gun. bought protection his own gave nephew it to then defendant before murder. The also gun night testified defendant had of the murder. Finally, gun weapon. Dunn as the identified murder Because body Huggins’ badly decomposed, had so DNA and forensic regarding assault was evidence the sexual inconclusive. testify during Defendant did not the trial. He attacked the witnesses, credibility seeking to convince State’s witnesses, he, actually responsible those were for the Huggins they attempting murder of Kristin and that were consistent, Although entirely frame him. his defense was not his major goal was to cast doubt on Dunn’s version of defendant as principal accomplice. and Dunn as He thus came to admit- close crime, ting presence during pointing his while to Dunn as triggerperson. death-eligibility That distinction had conse- 2C:ll-3c, quences. According to N.J.S.A. one who kills his eligible. own conduct is death credibility, pointing

Defendant attacked Dunn’s out the various testimony in police. inconsistencies Dunn’s and statements to the crimes, attempt in He stressed her involvement the her failure to escape help Huggins presented or to for seek when with the delay opportunity, long notifying police. and her in the Defendant charges in emphasized also the reduction that Dunn had received defendant,2 testimony exchange against allegedly for her the leading questioning by police gave Dunn nature of the the when 5, 1994, her statеment on October and the State’s failure to Dunn, defendant, fully investigate whether was the one who trigger. sought pulled the Defendant to introduce evidence of disposition in Dunn’s violent order to rebut her claim that she triggerperson. him to cast on his status as feared and doubt court, however, challenges excluded the evidence. Defendant that exclusion. $25,- specially emphasized get the

Defendant Dunn’s desire trial, money implicate At 000 reward as her motive to Harris. having obtaining Dunn denied ever been interested a reward defendant, leading body parts her authorities to the and to but of agreement, guilty kidnapping with a Under the Dunn and pled robbery, with fifteen maximum sentence of parole thirty years’ imprisonment years ineligibility. charge The murder was dismissed. Dunn received a eventually ineligibility. with ten sentence of years parole thirty years' imprisonment testimony

testimony police and the various officers demonstrat- inquired repeatedly that she her sister about the reward. ed explained inquiries strategy as to lead She her about the reward police body incriminating to the without herself. credibility young Defendant attacked men who also evidence, drugs, gave all of whom been with had either involved records, prosecutors, favor had criminal had motives to seek with police. presented testimony had that one or to the Defendant lied weapon to the gun of the men had shown off similar murder plans gun. had sometime in December and stated that he for the Huggins’ car driving Certain the witnesses had been seen Huggins’ without One had Blockbuster card. defendant. Video police compared testimony Defendant elicited that the had not also hair found in car with the hair of witnesses. guilt

At the phase, conclusion of the convicted defen- Huggins found had killed his dant all counts and that he own conduct.

During phase, presented penalty no new evidence State submitted, support aggravating factors that it had escape-detection felony-murder factors. the State Nor did mitigating beyond rebut defendant’s evidence cross-examination. jury, sought mitigating Defendant to submit 180 factors to the aspects all related to various of his childhood and the abuse period. during he had The trial suffered court consolidated supporting points. those one factor Defen- “factors” with 180 into challenges mitigating dant that “deflation” of his evidence. presented through experts his Defendant evidence three —a mitigation expert, psychologist, psychiatrist. a child and a The dysfunctional evidence that from a fami- revealed defendant came married, ly. by His had father mother been abused her and had pregnant, when she a did man became man whom she not love—a who her and their She raised she abandoned child. a child whom neglected. boyfriend did not she and want and whom She a new physically. exposed often Harris to sexual abused Defendant child, activity neglected A in the home. he was soon involved activity. hospitalized placed violent and sexual He was and (a elevator) Thorazine diagnosed mentally mood as retarded. began experiment drugs. He with expert expressed

A opinion defense that because defen- life, school, neglected problems dant’s and violent his his experience hospital, self-perception being at the mental and his as retarded, mentally “rage against he harbored women.” Harris age having should have been classified at thirteen as a “severe conduct disorder.” The witness said that defendant should not have dysfunctional been allowed to remain in his home and that he placed should have facility been a structured residential where get he psychiatric could intensive treatment for his mental illness. poor witness also testified that defendant’s treatment school problems. officials contributed to his Another defense expert concurred that defendant suffered from a conduct disorder stemming biological, psychological, from and social causes and that he should have “squalor” been removed from the of his home. He stated trying “[i]f I were write book about how not to during years, raise child those I parents] [have would do everything that was done to him.”

At penalty phase, the conclusion of the found the aggravating existence of both factors and the sole consolidated mitigating factor. It also aggravating concluded factors outweighed mitigating beyond factor a reasonable doubt that Harris should be sentenced to appeals death. Defendant 2:2-l(a)(3). right us as of under Rule

II PUBLICITY ISSUES

A. County Motion to Transfer Trial from Mercer 1. сhallenges ground Defendant his conviction on prejudi- pretrial cial publicity County and midtrial in Mercer undermined right guaranteed to jury, a by impartial a fair and right to trial

his constitutions. U.S. by the state and federal defendants criminal Const, ¶ I, 10; 14; supra, art. see Williams N.J. Const amend. concise 59-62, set forth a 459 A.2d 641. Justice Stein N.J. Bey, 112 in v. N.J. principles State account of the relevant I): (1988) (Bey A .2d 846 jury goes of a securing to the essence of an very “The and preservation impartial * * * * * * significance. right] [T]riers of fact [This is of fair trial. exceptional ” axiomatic will admit.’ “It is ‘as the lot of humanity must be as nearly impartial right that he be tried before a to a fair trial that a criminal defendant’s requires hearing prejudice.” to accord an accused a fair “[F]ailure tainted not by panel of due even the minimal standards process.” violates mandating significance “that the is that here aspect impartiality Of particular jury’s not from outside court, on evidence received verdict be based open is that the “[t]he of our Holmes, system As Justice theory sources.” expressed argument evidence and reached in a case will be induced only by conclusions to be talk or whether influence, public outside court, by any private of. open trial courts to both ... The Court has protect consistently required print.” illegitimate threaten to taint the from influences and their deliberations impinging judges out and outside factors [T]rial must "seek expose upon verdict. integrity.” jury’s and essential of action and its freedom impartiality (citations omitted).] 112N.J. at 548A.2d 846 I, [Bey supra, digress impor- to examine applying principles, these we

Before (1) concepts: publicity media in four related tant differences (2) presumed to inherently publicity that is prejudicial; is media (3) trial; reversing a state the federal standard for prejudice a fair (4) conviction, ordering change state standard for of venue. prejudicial

Obviously, publicity a crime is not all about may simply report charges accounts accused. Some news alleged in the and include an outline of facts have been made however, prejudi- are types publicity, of media indictment. Other rights publicity is cial to fair trial because prejudicial fall into this or Several types publicity inherently inflammatory. significant category. of a confession or of other [perfect example] report related are that is or otherwise inadmissible. Closely reports evidence suppressed seek to at trial. factual details that the defendant will actively dispute of important category charged [of editorials. This inherently Also included are emotionally prejudicial defendant’s prejudicial accounts further publicity] encompasses inaccurate. when such accounts are criminal history, particularly (Alaska Ct.App.1990).] [Newcomb v. State, 800 P.2d 939 935, publicity cases have “presumptively Our described such as I, 351, prejudicial.” supra, Koedatich 112 N.J. at 548 A.2d 939. preferable type It is publicity refer of such media “inherently prejudicial” publicity described in Newcomb as in distinguish publicity publicity “pre order to such from sumptively prejudicial” rights. concept to fair trial The latter publicity a torrent of setting describes that creates a carnival-like atmosphere corrupted by publicity in which “the trial is so prejudice may 13, presumed.” Biegenwald, be v. 106 State N.J. (1987) II). 33, Florida, (Biegenwald 524 A.2d In Murphy 130 v. 794, 2031, (1975), 44 L. Supreme U.S. S.Ct. Ed.2d 589 prejudice may presumed. Court described the cases in which be cases, In such large the influence of the news either in at in media, or community proceedings____ courtroom The trial in itself, [,for Estes pervaded example,] large had been conducted a circus due in to the intrusions of atmosphere, part which was allowed to sit within the bar of the court and to overrun it press,

with television arose from a trial infected not equipment. Similarly, Sheppard only background but also a courthouse by extremely inflammatory publicity by given proceedings over to accommodate the for carnival. The public appetite lacking these cases were in the and to which a entirely solemnity sobriety defendant is entitled in a notion of fairness subscribes and system any rejects the verdict of a mob. [Id. 594.] at L. Ed.2d at 799, 2035-36,44 S.Ct. presumed prejudice pretrial publicity

Cases of due to are “rela- tively rare and arise out of the most extreme circumstances.” I, supra, 112 v. Koedatich N.J. at 548 A.2d 939. Coleman (11th denied, Cir.1985), Kemp, 778 F.2d 1487 cert. 476 U.S. (1986) example 106 S.Ct. 90 L. Ed.2d 730 offers an analysis required “pre- that is to reach the conclusion that the Coleman, prejudice” may sumed invoked. standard be community inflammatory prejudicial had been saturated with and pretrial publicity and an insufficient effort had been made to root jurors exposed publicity. out to the arising “presumed prejudice”

The doctrine of from massive pervasive publicity currently prescribed by is one of two tests rights courts to that fair trial have been the federal demonstrate prejudice.” “actual infringed. The other is a test for jury, prejudicial If makes it to seat an then pretrial publicity impossible impartial grant change judge motion of venue. the trial must the defendant’s for a (1) finding prejudice; prejudice or be satisfied of: will requirement presumed (2) prejudice. actual Presumed, Prejudice 1. “Prejudice is when the record demonstrates that the where community presumed prejudicial trial was held was with media saturated inflammatory publicity prejudice crime.” find “saturation” about Courts because rarely presumed conditions found situations. defines in extreme only Prejudice 2. Actual prejudice Actual if the demonstrated actual or exists partiality hostility “[Jjurors ignorant laid not, that cannot be aside. need be however, totally and issues facts involved.” (9th Cir.1993) (citations omitted), Blodgett, v. 5 F.3d 1189 cert. 1180, [Jeffries (1994).] 1191, 510 U.S. L. Ed.2d denied, 114 S.Ct. 1294, 127 647 Circuit, grant According to the trial must Ninth courts a change motion in defendant’s for a venue if either test met. corpus Ibid. And federal habeas relief is warranted if a state trial Ibid. comply failed to The court has with the rule. federal of a state court not, standard for should reversal conviction however, granting the state for be confused with standard a Houlihan, F.Supp. of vénue. See States v. change 14, United 926 (D.Mass.1996) (observing “the [supervisory] 16 n. 3 threshold unacceptable prejudicial change in publicity triggering a venue standard”). may Jersey well be lower than the constitutional New Rule 3:14-2 change by foreign jury of venue authorizes a or trial impartial “if the court finds a fair and trial cannot otherwise change respecting be had.” Our law motions for a of venue in I, supra, considered Williams 93 N.J. in capital initially cases was II, Biegenwald 39, A.2d 641. developed 459 It further in I, supra, 130, 45, Bey supra, 106 N.J. N.J. and in 112 524 A.2d Biegenwald II the Court 548 A.2d 846. that under observed

145 Wise, 59, 73-74, State v. in 19 N.J. former test set forth (1955), required proof A.2d 62 and convincing which clear that an impartial jury county could be obtained where the place, indictment took few obtaining defendants succeeded in II, Biegenwald supra, change N.J. at of venue. A.2d I, Accordingly, Williams 130. the Court modified the defen- burden, conferring dant’s change on trial courts the discretion “necessary venue when it is likelihood overcome realistic I, supra, Williams prejudice pretrial publicity.” 93 N.J. at from 67 n. 641. A.2d

2. accompanied by There can be no doubt that this case was widespread, inherently prejudicial pretrial coverage. media Strong “necessary measures were to overcome the realistic likeli- 67-68, Id. prejudice pretrial publicity.” hood of from 459 A.2d Trentonian, source, 641. The trial court found that media one County newspaper, a Mercer “vengeance seeking had conducted a against published crusade” defendant. It had a “stream of invec- “constant,” “prolonged,” tive” had been and “sensationalized.” court, According to was a there “reasonable likelihood of permeating its taint the trial.” many front-page, newspaper ran invective-filled headlines: Punk,” Suspect “Huggins Suspect

“Ex-Inmate: is a Loudmouthed ” Heartbeat,’ Kill a Would You in “Profile of a The Monster: Man Huggins Rape Who Killed Kristin Committed His First as a Teenager,” Boy Beast,” “Huggins Slayer “From Terrorizes Prison,” Disguise.” in Other “He’s Satan news accounts discussed prior the defendant’s criminal record as well as other crimes he suspected committing. predicted An of editorialist that death by injection society pieces lethal would rid of of biggest “one the of blight sample human trash A ever Trenton streets.” of the accounts is attached as Schedule A. newspaper coverage paper’s

Based on of the content the and the stance, editorial the trial court concluded that Ambrose Harris longer subject story, “was target no the of a but the news rather 146 pre- the newspaper’s court concluded that crusade.” The publicity “presumed of prejudice.”

trial met the federal standard importation foreign jurors affirming of the In its the decision coverage continued that such had Appellate Division observed interlocutory unabated, during argument of the even the oral full-page generated That a headline: “Justice appeal. event Harris, N.J.Super. supra, v. State Delayed at Again.” Kristin 415, 660A.2d 539. is do not reverse defendant’s conviction that reason that we agreed that there was a realistic

the trial court with defendant prejudice prejudicial publicity from trial and used one likelihood of approved management techniques specifically to ensure of the trial impartial compromised. right a is not defendant’s Biegenwald We said II: various trial In criminal cases attended inflammatory publicity, widespread right

management can to assure that the defendant’s to an be employed techniques change is not One available venue. impartial compromised. option protecting rights the of Other of the defendant’s constitutional include use means jurors” augment searching impaneling “foreign voir dire of the examinations, adjournment jurors eligible vicinage, in the of trial and restraints date, of pool in the comments trial. public by participants added).] (emphasis [Biegenwald at II, 106 N.J. 524 A.2d 130 supra, fact, foreign jurors first empanelment In of was the I that Williams management technique suggested to combat the preexisting prejudicial pretrial publicity. The effects of Court feasibility explore augmenting of said: “The should eligible jurors pool vicinage, in the and should consider the practicability using beyond particular vicinage from citizens jurors, jurors.’ potential ‘foreign as of so-called to serve use Similarly, may change help of trial venue to overcome the risk I, supra, Williams 93 N.J. prejudice.” A.2d added). (emphasis I the Williams Court observed opinion, the footnote to its change as

that “a of venue has same benefits drawbacks impanelling foreign jury utilize of a since both methods Id. at 67 may publicity from communities where be less intense.” empanelment n. A .2d 641. In to “facilitate” the order

147 foreign juries, held peremptory court the number of challenges foreign jury if by should not be reduced a was chosen 12, in the exercise of its sound Id. at n. discretion. short, every In A.2d 641. of our intendment law was that the empanelment jury foreign adequate response a be subjected realistic likelihood that the would be to adverse publicity. trial

3. Hence, we find error in no the trial court’s decision to empanel foreign When, a rather than to transfer venue. however, capital by accompanied public a a case is stream of case, invective such as this it surrounded occasions us to reconsid precedent. er our analyzing press

In this conflict between free and fair trial rights, guidance take we from Justice Jackson. He wrote: right right The free but so one, have a is a vital is the have people press right, a calm and fair trial free from outside and influences. other pressures Every right judicial

including get itself, a free a press may depend ability hearing as as men the weakness inherent will dispassionate impartial permit. 1263, 91 L. [Craig 367, v. 331 U.S. 394-95, 1249, 1546, 1561 S.Ct. Ed. Harney, (1947) (Jackson, dissenting).] J., In press rights an ideal world a free would to foster fair seek inherently prejudicial during circulating publicity least Elliott, Friendly time of trial. See Fred & J.H. W. Martha (1984). Constitution: That Balance 148 If be Delicate this cannot so, guarantee preservation rights courts must of fair trial any press. without restraint of the editorial freedom of the We long ago speech is the made choice that “free national curren- 176, cy.” Jersey Monthly, v. New N.J. 445 A.2d Maressa denied, 211, 74 cert. 459 U.S. 103 S.Ct. L. Ed.2d 169 (1982). capital change future cases court should the venue of a

capital presumptively trial when there is a realistic likelihood that prejudicial publicity during will continue the conduct of a trial. prejudicial recognized barrage Presumptively publicity is as a may include of the inflammatory reporting that but need not all trial, inadmissible at the editori following: that would be evidence innocence, pronouncements on opinions guilt al and media on or respect that this the of a defendant. We realize death-worthiness imposes expense on press an added and inconvenience a free alternatives, sequestra of the and the victims crime. State unaccepta gag press, proven have tion or orders the of Allen, generally supra, 73 N.J. 373 A.2d 377. ble. See

B. County Jury Burlington Selection of venue, change for a of Harris asked the In his initial motion County place for court select as the trial because Camden County, minimum county’s proximity to Mercer the of the relative containing publicity, newspapers prejudicial and circulation of (its makeup county’s population demo- because the racial of the nearly County. Initially, as Mercer the graphics) was same rejected County a transfer or source for a court Camden as site contiguous it was one the counties to Mercer because not of authority County legal requiring no and because there was in makeup рool of court to consider the racial the alternate its contiguous The court considered two counties of decision. Burlington. It chose Hunterdon because the two Hunterdon and Trentonian) had a (the Times and the newspapers Trenton 20,000, Burlington County approximately circulation of combined split fairly evenly the two. The circulation of two between 3,000 newspapers County daily, Trenton in Hunterdon was about 1,200 Trentonian. of of which some were Appellate demograph- racial After the Division determined that by trial court had ies should be considered County merely refusing because it erred consider Camden County, again urged contiguous to Mercer Harris County upon publicity and the demo- selection Camden based County, County, graphic considerations. Camden like Mercer rural with a consisted an urban center surrounded areas most, percent population. sixteen copies African-American At Trentonicm circulated in Camden contrast, of the County. Burlington County largely consisted of rural with Afri- areas population percent. only can-American fourteen The trial court demographics concluded that the racial virtually counties were identical and that the circulation newspapers County Burlington large enough Trenton was not prejudice Relying upon prox- defendant. the considerations of efficiency, imity Burlington County it chose as the source for jury. selection of the paradox although relatively

Defendant finds it to be a that the large papers local circulation of the Trenton had motivated the (Hun- reject Burlington court County in the first instance 3,000 having preferable Burlington’s terdon’s circulation of been 22,000), circulation of the required Appellate when Division to reconsider, Burlington County the court chose over even Camden though figures the widely disparate: circulation were more Bur- 22,000 lington’s copies compared with Camden’s 250. The trial coverage Burlington County court held that the extent of news should not be decisive if because even the case were tried “on the Antarctica], [in Ross Ice Shelf generate publicity. it would There way is no to avoid that.” argues goal

Defendant that because the is to “minimize the danger prejudice pretrial publicity] [from extensive infil- will I, supra, adjudicatory process,” Koedatich N.J. at trate the I, supra, Williams 93 N.J. (quoting 548 A.2d 939 641), minimizing A most potential .2d effective method of the jury county was to select a from a of which was outside range newspapers. circulation of the Trenton prevail steps Defendant would if the court had taken no other danger prejudice minimize adjudicato- would infiltrate the ry process. steps The took firm to ensure that none those (the newspaper households that received the Trentonian contain- material) ing inflammatory jury. the most A would be on this specifically questionnaire inquired potential juror whether had juror Any regularly read the newspapers. who read the Trenton cause in the effectively subject to elimination for Trentonian was addition, during the court ensured jury process. selection jurors Burling- most were assembled at of the trial the course directly transported to the Mercer County and ton Court House exposure attempts to minimize the County with Court House hawking papers to the court house. en route jurors Burlington empaneled the from Coun- Although the court significantly if not than ty, the effect was different net noted, demograph- County. As the racial had been from Camden similar, although substantially Cam- ics of the two counties were jury panel finally composed, it urban. was den more When systematically minority The court exclud- included members. two (The jurors. Trentonian panel from the ed readers of jurors eventually sixty quali- goal to select court’s initial forty-nine jurors day on the before trial was to commence fied 1996.) January 3, in this principal risk contamination county the home counties of the case arose in Mercer were from jurors. made little difference whether It Burlington or Camden counties.

C. Publicity Midtrial assuming it was not an abuse of Defendant contends that that out-of-county employ jury, the refusal to discretion to court’s individually concerning jurors any possible exposure to question inherently publicity deprived defendant of a prejudicial midtrial challenges specially penalty-phase por- the fair trial. Defendant returned, guilt the verdict was defense tion of the trial. After jury and that the court sequestration counsel for of the moved voir argued jurors, dire. Counsel conduct an individual seven, may to juror exposed preju- been particularly number have jurors might to publicity the have been reluctant dicial setting. group in a discuss

Dramatically prejudicial guilt- headlines were to attendant read, phase deliberations. The Trentonicm headlines “One Juror Verdict,” “Battling Jury Stalls Harris Public A Draws Fire.” story quoted expressing opinion feature a Trenton resident as people figure think, that “[m]ost would We’ll have lunch county, squirt on the and we’ll him —this afternoon.’” Similar publicity during phase. penalty continued A as headline such Eyed Slay.” “Ambrose An ’67 editorial recommended death for verdict, day guilt Harris. The after returned its a front- page photograph caption read, of Harris ran a over which “So why’s smiling? juror this killer crying, Because he’s seen No. 7 go and he thinks she’ll for death penalty.” never acknowledge they counsel requested Defense that whenever jurors any court question concerning prejudicial headlines and accounts, jurors acknowledge did ask the a show they any hands if had or read seen news accounts the trial and response. that on each of these occasions it received no But argues inherently prejudicial defendant that because of the nature articles, particularly singled these out specific those a juror, granted the court request should have defense counsel’s (In an in camera individual voir dire of the jurors. camera individual voir dire means one-on-one interviews between the judge juror, public and each without press present.) or the I,

Bey supra, 112 N.J. presented A.2d a similar charged issue. In that ease the defendant had been almost simultaneously county. with in the two murders same Because murder, the defendant had not .of been convicted either evidence guilt-phase murder other was inadmissible the first trial. dire, jurors voir During questioned concerning exposure the court any pretrial publicity prospective admonished newspaper protective read accounts of the ease. These instruc repeated frequently tions were at trial. After the commencement trial, printed newspaper circulating county in the articles published strongly concerning the other murder and also worded overly murder as commentary criticizing sentences in other cases 79-80, Id. at 548 A.2d 846. lenient. requested a the articles and mistrial produced counsel

Defense alternative, concerning any or, jury polled in that the be the question respect to to the with exposure. The court declined articles, relying presump on any exposure newspaper to the jurors faithfully to the court’s instruction. would adhere tion that 80, Id. at 846. 548 A.2d general presumption jurors in

Notwithstanding that act instructions, we held good comply to with a court’s faith seek warnings publicity inadequate general not to read trial are inherently published during information has prejudicial when been likely jurors may have it is that one or more been a 81, Id. publicity. at 846. If a court is exposed 548 A.2d to capacity prejudice a published information has satisfied that defendant, if a realistic the court should first “determine there is may or that such information have reached one more possibility exists, Id. “possibility jurors.” A.2d 846. If such a at a voir dire to determine whether any the court should conduct footnote, exposure has occurred.” Ibid. the Court wrote that “[tjhough questioning is the form and content this initial better discretion, the trial court’s sound we note that left within camera, jurors individually, in likely to be practice polling is any uncovering exposure questioning in than is more effective banc, Id. en in n. 846. open court.” at 86 548 A.2d Justice prescribed further Stein extra-judicial knowledge of [i]f indication of such or informa- there any exposure in should those order to determine tion, the court question individually fulfilling are what was learned and establish whether they

precisely capable judge in their the facts an and unbiased based manner, strictly duty impartial the evidence court. presented [Id. 846.] A.2d 86-87, at Bey I the court refused reversed the conviction because We jurors in with defense counsel’s re question accordance “[sjuch inquiry might quest. have revealed observed We occurred at all.” Id. publicity exposure that no had 153 548 A.2d 846. That scenario did not in occur this case. Harris’ jurors questioned generally inquiry were and that revealed that no exposure had occurred. (5th Bermea, Cir.1994),

United States v. 30 F.3d 1539 cert. States, Rodriguez 1156, denied sub nom. v. United 513 U.S. 115 1113, 130 (1995), S.Ct. L. 1077 Ed.2d is similar. After instances of possible exposure prejudicial inherently publicity to had been attention, brought to its the court conducted collective voir dire. negative response The received each occasion disclosed that jury exposure suppоrted did not occur and the court’s discretion- ary decision that unnecessary. individual voir dire was Bermea nothing court wrote: “We found our have ‍​‌​‌‌​​‌​‌​‌‌​​‌​‌‌​​​​​​​​​​‌​‌​​​​​‌‌​​​‌​​‌​‌‍in cases to support publicity a rule that requires midtrial individual dire voir after judge even the district inquiry has made a collective to the jury response.” 1560; and positive received no Id. at see also Tolliver, (5th (hold- Cir.1995) v. United States 1204 F.3d ing two-step inquiry necessary that a is to assess individ- whether voir necessary ualized dire is publicity, because of midtrial con- cerning coverage prominence). nature of the media and its I,Bey pains

In point respect court was at to out that “with to poll court’s failure to about exposure to media reports, gone we have no adopt approach further than to by majority accepted of states that have considered the matter capital I, for noncapital Bey and cases alike.” supra, N.J. at 92, 548 A.2d we go prevailing 846. Had intended to further than practice question exposure on the publicity, to midtrial we I, explicitly. having Bey should have done so Not so in done denial of individual voir dire should not form the basis for reversing a conviction when there is exposure. no evidence of Bermea, Bey jurors in

Unlike I and in which the were exposed in to newspapers their homes television accounts material, inherently prejudicial jurors in case this were whether, exposed publicity question in their homes. The in by county trips their travels bus in and out of the and in their lunch, they read promi- would have and been influenced In newspaper involved.

nently displayed headlines the tabloid circumstances, acceptable. the collective voir dire was such may A we should reconvene question arise whether individually any whether individual poll the members determine was, fact, publicity. exposed prejudicial midtrial juror I, sought supra, 112 A .2d defendant N.J. Koedatich newspaper on a article question jurors after his trial. He relied having knowledge of jurors as his involvement quoted some questioning after a trial murder. held that a second We only extraordinary be invoked when procedure” “an should have strong representation may that a defendant been there is a 288, (quoting by juror Id. at 548 A.2d 939 harmed misconduct. Athorn, denied, 247, 250, 369, A.2d cert. 384 v. 46 N.J. 216 State (1966)). 1589, 962, L. not wish 16 Ed.2d 674 We did U.S. 86 S.Ct. litigants en- “disappointed would be to create a situation where jurors employ couraged them and to tamper to with to harass repudiate to their decisions.” practices fraudulent effort Ibid, 369). Athorn, 250, (quoting supra, 46 at 216 A.2d Nor N.J. any open disgruntled ... did wish to extend “an invitation to we juror might destroy juror] to [the who choose to a verdict which Ibid, Athorn, N.J. previously (quoting supra, had assented.” 369). 250, Privacy secrecy must attach to the at 216 A .2d and finality only promote jury verdicts but also process, not to the of itself, juror process allowing the each the to aid deliberative thoughts. the or her Ibid. For same freedom to discuss his us “strong policy reasons” that led to the decision not interro- Koedatich, 288-90, jury, supra, 112 gate the Koedatich N.J. ought jury A .2d we not reconvene convicted sentenced defendant.

D. Jury Sequester Refusal to 22, 1996, February prior to the commencement of the On sequester jury. The penalty phase, counsel moved to defense impetus publicity for this motion was a “new direction” February 21, had taken. The of the Trentonian edition headline, type “Guilty,” contained in bold the bold over picture of caption, why’s Mr. Harris with a smiling? “So this killer Because juror crying, he’s No. 7 seen thinks go he she’ll never for the penalty.” days before, death Several while the was deliberat- ing said, guilt, page defendant’s a cover headline “One Juror Stalls by Verdict.” Defendant describes as a attempt this clear and, jury, media seek influence or intimidate this more intimidate, specifically, by attack, personal single juror who happened to black be a female. context, sequestration jurors

In this means that would day not return to their homes at the of a end of trial and would be court, meals, housed take all and receive outside informa- supervision tion under court officers. See Marcy Strauss, (1996). Sequestration, 24 Am. L. J.Crim. This to be witnesses, sequestration confused with the practice of not allowing prospective testimony witnesses to hear the of other witnesses, theory being might shape that the witnesses their testimony they to that which have heard. emphasizes prior death-penalty

Defendant that under our prac- tice, sequestration required capital at all times Pontery, cases. State v. 457, 479, (1955) 19 N.J. 117 A.2d 473 (Heher, J., concurring). 5, 1972, September It was until not judges permitted disperse were jury during to a criminal delibera- Rules, Pressler, Current N.J. Court comment 3 on R. 1:8-6 tions. (1998). Jury The Sub-Committee on of Deliberations this Court’s Committee, Criminal Procedure which recommended 1972 the rule sequestration change, suggested that after commencement of de- discretionary liberations be a decision for the court based on ease, identity such factors as the of the nature the of the defen- dant, trial, length public of the the of and kind interest day on the and begin. evidenced the hour when deliberations importantly, More pre- the Committee recommended that sumption against sequestration, applies during which the course of trial, carry Ibid. phase. over to the deliberations sequestration was considered the acknowledge that once

We cases, the need during jury criminal where norm deliberations pretrial jurors publicity from the influences of protect outside to Allen, supra, 73 N.J. at 373 A.2d 377 awas constant. Yet, (Pashman, J., sequestration originate concurring). did not as juror impartiality. preserving a means of deliberating jurors being keeping the from than to the defendant by Kather protect sources, or from outside it influenced contacts with communication improperly keeping jurors of the ancient common law of practice appears purpose light or heat and until without food drink and sometimes without they locked up agree. a force have reached verdict them simply Am. J.Crim. L. at 70-71.] [Strauss, supra, generally day, this lasted less than ancient Because trials then practice may on requirement appear onerous in than was “less glance.” The “trend seems to first Id. at 71. of modern decisions constantly tapering off from the ancient idea that confine- be prerequisite to in a criminal case is a insure ment at uninfluenced verdict.” Id. 72. principal sequestration is the

The reason the decline system jurors imposes judicial on themselves. burden it on the glorified Sequestration prison,” been “a where has described as censored,” “[ejvery world is and where contact the outside reads, hears, “[ejverything sequestered jury and sees is moni- Lassiter, Question, Is tored.” TV or Not TV—That Christo (1996). Criminology can 86 J.Crim. L. & Such conditions jurors jurors feuding among can their cause motivate rush deliberations. Id. 985-86. addition, sequestration will reduce number even short jurors prospect sequestration deter potential because the will serving.

many potential jurors highly from Id. at 985. In one case, nearly publicized ninety-five percent potential prohibitive sequestration impose a hard- said that would Hansen, Used, ship. Sequestration: Mark Little Little Liked: Jury Symptom be Simpson Could Record Tensions Confine- (Oct.1995). ment, 16,17 81 A.B.A.J. Sequestration remedy has thus been viewed as a “drastic Simon, lightly.” [that] cannot be recommended United States v. F.Supp. (S.D.N.Y.1987), Applica sub nom. In re aff'd Co., (2d Cir.), tion Dow Jones & 842 F.2d 603 cert. denied sub Simon, nom. Dow Jones & Co. v. 488 U.S. 109 S.Ct. (1988).

L. Although Ed.2d 365 jurors the trial court did alert the during they might sequestered orientation that days be for several deliberations, during understandably the court was reluctant sequester on the contemporaneous publicity basis of the reported in the Trentonian. As near as can be determined from record, prejudicial this publicity appeared no any of the tele jurors vised news broadcasts to might which the have been homes, exposed in any their newspapers nor of the other circulating in jurors the State. The chosen tended not to read the overnight Trentonian. Because the activities of the did not pose a threat of taint any and because there is no indication of exposure hours, actual during jurors’ lunch it was not neces sary sequester jury.

Ill PRETRIAL ISSUES

A. Empanel Separate Penalty-Phase Motion to Guilt- and Juries trial, requested Before defendant that the court bar the introducing State from prior evidence of defendant’s criminal or, alternative, record empanel separate guilt- that the court phase penalty-phase juries. The trial court denied defen dant’s motion. possessed The court found that defendant impeach “extensive criminal record which could him in be used to testify during guilt the event he elects to phase of the trial.” possession Defendant had property, been convicted of of stolen larceny, burglary, robbery, attempt robbery, to commit and unlaw possession ful weapon of a purposes. for unlawful The court prejudice use of defendant’s criminal record would not found

158 phase. penalty at The court relied on two consider- defendant the First, “sanitizing” the court found that defendant’s crimi- ations. Brunson, record, 377, State v. 132 N.J. by required as 625 nal (1993), possibility prejudice 1085 lessen the consid- A.2d would Erazo, (1991) in State v. and State 126 N.J. 594 A.2d 232 ered Monturi, (Law Div.1984). N.J.Super. v. A.2d 1266 Brunson, supra, may prosеcutor impeach a a Under defendant’s credibility by introducing prior evidence criminal convictions. However, 132 N.J. past at A.2d if are 1085. the crimes only charge, prosecutor may the similar to instant the inform the jury degree prior and of the of the crimes the dates of conviction. Ibid. Counsel Ibid. specify may the nature of the offenses. The trial court found that the Brunson decision obviated the need Second, separate guilt-phase penalty-phase juries. for the foreign jury court found that selection of a the “reduce[ ] would possibility jurors that will the be aware of the exact nature of by pretrial publicity.” defendant’s crimes virtue of Despite testify regard expressed his to the desire without for issues, testify court’s decisions these defendant did not guilt argues during phase. Defendant trial court’s ruling prevented testifying, him from him denying his Sixth rights trial, a fair present Amendment because he was unable to fully trigger his Dunn contention Gloria fact the causing Huggins’ Kristin person death. Defendant contends that impeachment purposes, use of his criminal record for while trial, during proper guilt phase jury of the would have led the improper during penalty consideration of that evidence dire, phase. Dining ultimately voir six of the who went on expressed opinion deliberate that defendant’s criminal during sentencing. record would a relevant De- be consideration limiting no fendant contends that instruction would have been effective. empanel separate guilt-phase

Trial are courts authorized N.J.S.A. penalty-phase juries in capital murder cases. 2C:11- 3e(1) provides, part: jury, proceeding

Where defendant has been tried shall by be [penalty] judge jury conducted who the trial and before the presided which guilt, good determined the defendant’s for that, cause, the court except may discharge proceeding and conduct the before a for the empaneled proceeding. purpose Thus, although single jury preferable, Biegenwald, State v. 1, 44, (1991) IV), {Biegenwald 126 N.J. 594 A.2d 172 a trial court may, cause, good empanel juries. two That decision rests in judge. the sound discretion of Long, the trial State v. 119 N.J. 439, 475, (1990). 575A.2d 435 purposes system

“One of the of the bifurcated-trial by Jersey established Penalty prevent the New Death Act is to jury’s death-eligibility determination of being from influenced only adjudgement evidence appropriate relevant to of the IV, Biegenwald supra, 44, sentence.” 126 at N.J. 594 A.2d 172. Evidence of capacity prejudice penal other crimes has the to Erazo, ty-phase proceedings capital supra, of a murder case. 126 132, 232; Moore, 239, 276-77, N.J. at 594 A.2d State v. 113 N.J. (1988). 550 A.2d 117 high, possibility ‘With the stakes so of prejudice penalty phase persists on the continuing as a cause for Erazo, 132, supra, concern.” 126 N.J. at 594 A.2d 232. The use juries of two guilt-phase “commends itself when evidence is so prejudicial fairly phases that the same could not sit on both 133, Monturi, (citing supra, the trial.” Id. at 594 A.2d 232 195 1266). N.J.Super. 478 A.2d One instance in which the Court required separate juries aggrava has is when the on State relies c(4)(a), ting Biegenwald factor conviction of another murder. See IV, 43-44, supra, 126 (recognizing N.J. at 594 A.2d 172 “that our finding that potential jurors defendant is entitled to voir dire e(4)(a) possible blinding impact likely of the factor most will require two-jury system capital a for all in cases which the State factor”). prove seeks to that (in

Except specific category for that of cases which it is spillover inevitable that a guilt phase reverse will taint the of a trial), capital separate guilt- juries a motion for penalty-phase should at guilt phase be decided the close of the of a criminal

160 contemplates procedure. It is then proceeding. The statute may prejudicial properly trial court assess whether evidence Monturi, supra, Judge jury. presented has Stern been to the empanel pre-trial separate to addressed a defendant’s motion 321-23, N.J.Super. guilt- penalty-phase juries. at A .2d 1266. The defendant was accused of two murders and two conspiracy commit as well as number counts of to murder unrelated, “post-murder” crimes. court found that some necessary prove guilt “post-murder” offenses evidence Id. during penalty phase. would be at inadmissible “Nevertheless, prejudge A.2d and order 1266. evidence pre-trial separate juries the case be tried would be Id. at imprudent.” 478 A .2d 1266. The court withheld juries, separate suggesting decision on the issue of that a court guilt phase until of the if the should wait the end decide presented prejudicial evidence fact or would be admissible Id. way during penalty phase proceеding. some 329-30, potential A.2d Harris’ 1266. The introduction of pose prior grave prejudice did not a risk sanitized convictions so empanelment juries. as to warrant before trial the of two speculate prevent- We will whether trial court’s decision testifying. many ed from influ- defendant There are factors that testify regard- ence that decision. stated Defendant that he would less empanel of the court’s decision to admit his criminal record or only be, then, jury. may It one that some other consideration prevented testifying. defendant from failing trial to

The court did not abuse its discretion in empanel juries guilt-phase jury’s trial. a two before Whether exposure to a version a criminal “Brunsonized” defendant’s prior to “good record of convictions rises the level of cause” 2C:11-3e(1), required under N.J.S.A. must remain in the sound can discretion of court. We envision circumstances which convictions, of other as evidence “unsanitized” such child sexual abuse, impermissible spillover might pose potential a into the

161 Erazo, phase juries. penalty requiring supra, thus two See 126 132-33, 594 A.2d 232. N.J.

B. Jury Selection Process court, justifi- proper Defendant contends that the trial without cation, participation jury excluded defense counsel from direct and, remaining participation selection insensitive to counsel selection, throughout jury proceeded entirely an conduct value- voir dire. voir less He contends that dire was so inadequate right that he denied his a fair trial jury. impartial Although argument his a states broad-based dire, challenge to the trial conduct court’s of voir there are (1) aspects challenge: distinct whether trial court dire; (2) improperly attorney-conducted terminated voir whether quality overall of the voir dire was insufficient to enable peremptory challenges respect counsel to exercise with to issues innocence, presumption publicity, such as the exposure (3) part; and awareness of other crimes on the defendant’s explore jurors; potential whether the court failed to racial bias of (4) jurors and whether failed to the court excuse for cause whose substantially ability to views interfered with their be fair and impartial. process death-qualification and selection delicate,

“important, complex,” requires “thorough and and searching jurors’ inquiry” opinions biases. into State v. (Williams Williams, (1988) II). N.J. A.2d 1172 capital our single-jury system, jury Under selection must duty double as a time to qualify” serve both “death and a time to enable to exercise counsel the valuable constitutional jury. prerogative selecting impartial a fair and The two Zola, purposes inquiry overlap. tend to State v. See 384, 398, (1988), 548 A.2d 1022 cert. sub nom. Zola N.J. denied v. 1022, 109 (1989). Jersey, 1146, 103 New S.Ct. L. Ed.2d 205 U.S. views, the Significant jurors’ feelings, and attitudes on inquiry into capital required in a case in penalty death and relevant issues is questioning. voir dire. We encouraged open-ended therefore have strongly disapproved questions predet- that We have closed-ended Williams yes-or-no responses. ermine answers or elicit narrow II, supra, encouraged A.2d 1172. have N.J. at We provide insight questions the additional that will formulation of controversy. Obviously, a juror’s subject into on a in a views examination, dire doing in court must control voir but so it must proselytize, it neutral. The court must not and must remain “wrong” any “right” to way indicate in its views of the or answers extensive, voir dire voir dire questioning. probing, The should be voir dire is the fair, predicate and balanced. Such essential jury securing strong necessary the of fairness in a with sense capital prosecution. repeatedly have stressed that the need We impartiality heightened in cases jury for in which defendant I, supra, 93 N.J. at faces death. Williams 459 A.2d 641. We capital in repeatedly therefore held that cases trial courts have attorneys to especially permitting should be sensitive to conduct a II, Biegenwald supra, of voir dire. 106 N.J. portion against It is these that must A.2d 130. standards we assess voir dire in this conduct of case.

1. Court Conducted Voir Dire selection, jury parties agreed Prior to the commencement of begin jurors questioning that the court and allow would opportunity follow-up questions. each side an to ask the course jurors days, sixty potential of the first several were dealt with overwhelming majority this manner. The were excused for vari- hardships. fully questioned quali- ous were and four Seven were selection, day fied for service. On the fourth the court counsel had asked questions reached belief defense jurors, designed potential citing confuse exhaust questioning particular. of two excused court con- using procedure shop cluded counsel argues pursuant to the favorable defense. Defendant IV, Biegenwald supra, 1, 172, 126 N.J. nothing A.2d there is wrong shopping jurors with for and that his questioning of these jurors appropriate. was attorney-conducted The voir dire result- ed in jurors, excusáis for cause of each of disputed having one philosophy eye subscribed to the eye” of “an for an and another life, stating, you give your “You take a life.” Both beliefs consti- tuted excluding jurors. Hence, sound bases for defendant argues that it inappropriate to curtail attorney participation. by

The basic issue was resolved our Biegen decision in II, supra, 13, wald 106 N.J. 524 A.2d 130. We there held applicable capital to cases the rule of Manley, State v. 54 N.J. (1969), l:8-3a, 255 A.2d 193 as well as Rule which states that purposes determining challenge whether a should be inter posed, interrogate “the court shall prospective juror.” Bieg II, supra, 28-29, enwald 106 N.J. at may 524 A.2d 130. It be unwise it is but not unconstitutional exclusively for a court conduct voir in capital dire cases. by Whether conducted court or counsel, itself, voir dire is not an end in but rather a means.to impartial jury. select an Long, supra, 119 N.J. at 575 A.2d question whether, 435. despite counsel, The excluding the court provided “thorough searching inquiry” jurors’ into the general attitudes arid biases. The tenor voir dire in this case court, counsel, was that the in consultation with first reviewed a questionnaire that it jurors. had submitted to all question naire covered issues such as exposure racial attitudes and pretrial publicity. questionnaire Submission followed a general jurors orientation of in which the court outlined the case, were, contours of the long what the issues and how it would jurors take. As the individually, were called the court addressed general questions concerning to them ability their to follow the penalty death concerning specific law and issues raised their questionnaire. During answers question the course of the ing, many jurors candidly they biased, admitted that were had exposed been pretrial publicity, opinions guilt. or had formed noted, initially dire with counsel

As commenced voir court to curtail coun- asking follow-up questions. The court’s decision contretemps. as produced curious Even sel’s role roles, debating proper prospective their were were counsel contemporaneous reporting in the Trentonian reading accounts approval that court had cut down the role with editorial attorney zealously attorneys, implying that who Harris’ defense rights pursues Amendment is an obstructionist. his client’s Sixth preferred permitted have the court have direct We would by process. in the court participation counsel voir dire posing hypothetical questions to the reasoned that counsel were jurors capital sentencing that were inconsistent scheme with potential jurors. to than designed and that were confuse Rather questioning, cut all could have such off court controlled questioning. any great not so was We are certain there savings through of time a court-conducted voir dire. There were frequent following questioning, court’s side-bar conferences times, objection resulting, at in ten or fifteen minutes of to the questioning. might spent The time better have been court’s questions allowing counsel seven to ten minutes of direct of their own.

Nonetheless, the was court-conducted voir dire sufficient ly probing discharged to meet constitutional standards. The every juror responded questionnaire who on the “unsure” concern ing whether race of defendant and victim would affect his judgment. regular every or her Almost reader of the Trentonian they was either had informa excused learned extraneous because concerning opinion tion the defendant or had formed an as to his first, guilt. questions At the court asked closed-ended about jurors’ concerning they attitudes whether be able to consid would mitigating accompanied er in the of a factors context murder rape, robbery, kidnapping. up frequently The court followed attitudes, open-ended questioning with sufficient draw out their occasion, explaining just trying one “The court understand your feelings.” requests The court was not insensitive counsel’s on, inquiry. Very early agreed for further the court to ask more open-ended questions concerning jurors’ understanding of the meaning presumption example, of innocence. For one juror asked, prospective you pre- was “What do understand the sumption questioning type of innocence to mean?” This fur- good jurors’ insight understanding nished counsel with a into the concepts. of such

Concerning death-qualification, the issue of there can be no questioning sufficiently doubt that probing the court’s provide impartial jury. a fair began question- The court ing juror open-ended questions general of each with about their concerning penalty. attitudes the death The court then went through specific pattern penalty, inquiring of the death if the way could follow the law. this the court was able to root many jurors “pretty out mitigating who found it difficult” to assess factors or did not “want to hear” about a defendant’s troubled life. expressed philosophies punishment Jurors who such as “the fits crime,” they if stay thirty years prison,” “it’s worse had to “I go background” or would with death no matter what the were excused. bias, potential many jurors candidly

On racial expressed on questionnaires they their initial that were unsure whether race jurors immediately would affect their determinations. These were questioning excused the court. The court’s own on race was closed-ended, initially usually asking whether the fact that ability victim was white and the defendant black would affect their impartial. strongly protested to be fair and Defense counsel such questioning, describing “every closed-ended the case as suburban nightmare, housewife’s ... nth worst an interracial crime to the degree.” Defense counsel are sometimes criticized for their advo- cacy in roles the conduct of criminal trials. Had defense counsel obstructive, in they this ease could have sat back and let the been jurors proceed voir dire on racial attitudes of with built-in error likely guaranteed that would most have a new trial for the Rosales-Lopez defendant had the verdict been unfavorable. See 166 States, 182, 191, 1629, 1635, L. 451 101 S.Ct. 68

v. United U.S. Ross, 22, (1981); 589, 597, 424 Ed.2d Ristaino U.S. 96 S.Ct. 30 v. 1017, 258, (1976); Ramseur, 1021, v. L. Ed.2d State 106 123, 246, (1987); post also 716 A.2d N.J. 524 A.2d 188 see (Handler, J., dissenting). Knowing obligation that as at 507 their attorneys to insure a trial was fair to both the defendant was that State, sought appeal and to defense counsel leave to Although bias. ruling questioning court’s on on cross-racial Appellate appeal, grant Division did not leave the doubts expressed by panel the pendency one member that of an single-justice application for to this Court relief occasioned agree questions of ten State defense a series would explored have The court did not better cross-racial attitudes. accept questions, although agreed-upon agree it to ask the ten did (On questions, questions. several of choice of defendant disputed jurors asking they white if had the value court’s discrimination, experienced feelings asking rhetorically ever people whether it could be that black would have let whites fact, neighborhoods. move into some of their the white discrimination.) report experiences signifi- did of felt The most question repeated cant asked was whether or not the defendant’s Huggins potential reference to as a bitch” would “white affect jurors’ question frequently phrased deliberations. was as fact, alone, standing whether that would affect their deliberations. appealed again open-ended be Defendant the court to more questioning. appeared by doing its The court concerned it so inject would into the case issue of racism it did not perceive present may in the court to be case. The have sensed that to describe the case as crime would a bias have crossed (1982). Carter, line in State v. defined 91 N.J. A.2d 1280 In that prosecution attributing case the criticized for a racial was “[tjhere bias a crime when one not exist. We is no did said place labelling.” group the courtroom for ... Id. at A.2d 1280.

Still, questioning sufficiently probing enable gain jurors’ perception and counsel to a As the attitudes. continued, questioning jurors open-ended questions, more ask- deliberations, ing weigh how the issue of race would in their produced open-ended responses. more The court excused one juror lingering feeling who “left race.” [the with] about later, initially qualified who had

Jurors been without the more questioning question- extensive on race were recalled for further reservations, ing. expressed saying “I if I wonder could be Some fair;” factor, certainly try;” might “I “it would be somewhat of a all things.” juror expressed those [racial] One the view that Harris racist, taking anger “was a bit of a his out on her because she was something.” Fortunately, jurors during white or all were asked questioning fairly open-ended questions concerning initial atti- trial, they might Simpson tudes have had about the O.J. highly-publicized celebrity aof athlete accused of a cross- deeply responsеs racial murder and a case that stirred emotional polarized attitudes between whites and blacks. The combina- questioning Simpson open- tion of on the ease and the later more questioning produced ended a voir dire that was sufficient to jurors’ noted, probe many jurors racial attitudes and biases. As extraordinarily expressing were candid in their hesitation about impartiality in a case of cross-racial sexual attack. It strikes us may that the court have relied too much on its intuitions about the Still, potential jurors observing fairness after their demeanor. juror answering questions to observe a is an asset. invaluable prosecutor seeing juror “biting lips” observed that one her “breathing very during questioning hard” left those impressions perceived reading courtroom with that cannot be cold record. balance, sufficiently

On the voir dire insured that counsel were peremptory challenges informed to their and that a exercise properly-qualified, impartial jury fair and was selected. The court rulings. many ways, was consistent in its In defendant was his sessions, enemy. During own worst least two orientation making gesture judge. observed defendant to the obscene selection, thirty-nine days there was not one bitter 168

exchange Although and counsel between court counsel. court and law, disagreed strenuously understanding of on their to, consider, if patiently never to even it not accede failed did had requests. counsel’s Counsel have been better served would they sharply requests follow-up questions more focused for their presented to a preprinted than have court with series follow-up questions. many On occasions when counsel focused questions. specific the court did more area followwith

2. Jurors Excluded for Cause have of two We considered whether exclusion Proctor, jurors, prospective Harry Margaret and black Corbett rights. violated defendant’s constitutional Under the Adams /Witt adopted, right impartial test3 that this Court jurors prohibits capital cause in unless the exclusion for cases opposition penalty prevent or their stated the death would performance jurors. substantially impair the of their as duties objection, Over defense the trial court because excused Corbett capital punishment. complains of his that the views on Defendant premature they court’s were without actions because were taken fully explaining obligations first the law duties of a or the and juror. capital disagree juror it was premature

We have excused questioned court had Corbett. The Corbett for several minutes preceding before the arose. had questions, concern In the he proof been asked about the and he would be standard whether upon proof able to the case decide based standard of which answered, beyond a “I imagine reasonable doubt. He I would.” 3 2521, New 448 U.S. 65 Texas, 38, has Adams v. 100 S.Ct. Jersey adopted (1980), Wainwright Witt, 844, L. Ed.2d 581 U.S. L. 412, v. 469 105 S.Ct. 83 (1985), excluding Ed.2d 841 v. test for cause. See State prospective (1987). Ramseur, 256, 123, 106 N.J. 524 188 the test involves A.2d Basically, juror’s whether, discretion, the trial court’s would beliefs or attitudes 225, his or Koedatich, interfere with her duties. State v. 112 N.J. substantially (1988), 548 A.2d 939 cert. 102 L. Ed.2d denied, U.S. S.Ct. (1989). you any The court continued: “Do your have doubt in mind about your ability answered, to do so?” Corbett “I believe I'd be able judge guilt this case for or I innocence but do have reservations asked, about life or death.” your The court ‘What are reserva- answered, tions about life or death?” “Historically, Corbett penalty disproportionately death has applied against been minori- ty poor people. That’s the reservations that I have.” acknowledged

The court his was a concern “shared many people.” Nonetheless, asked, the court ‘Will those concerns disproportionality] your ability [about affect to decide this case on repeating its own merit?” willingness After his to come to a innocence, guilt “reasonable conclusion” as to or there was a pause. juror The court asked the if he proven found the State had prove sentence,” “whatever it has to “your obtain a death would disproportionate concerns about application this of the death penalty preclude you following from your you what mind tells proper replied, “Truthfully, verdict?” Corbett honestly, I can’t I guess just answer that. I don’t know this time.” intelligent juror. Corbett was an cannot fault We the court for concluding honestly that these substantially held convictions would juror’s obligations interfere with the apply the law. The question disproportionality sentencing is one that this Court ultimately will have to decide.

Margaret prospective juror Proctor was another whom the trial objections excused over defense because of her views on capital punishment. Although stated, “I Proctor believe in the penalty,” death the court excused her because she believed that all capable being criminals were except rehabilitated those who kill again. challenges over and over prema- Defendant the excusal as ture. give Defense counsel explanation asked the court to further legal of definition of murder but the court dismissed Proctor because of what defendant describes as “her conscientious scru- ples regarding capital punishment.” colloquy sustains the court’s explaining decision. After her rehabilitation, views on the court asked under what circumstances penalty. you do impose the death it under Proctor would ‘Would Question: any personally circumstances?” Answer: “I wouldn’t.” your right. put Then want words in mouth. “All I don’t Can you any you impose the think of circumstances under which would person, “I if if penalty?” Answer: think a [has] death ^someone know, you probably again, and over I committed murder over probably penalty think death best for him.” that the would be Continuing, person if a she stated that it were first murder committed, rape, robbery accompanied by kidnapping, even if a or impose penalty. it “kind hard” to the death would be The court asked, juror’s “Am inquiry right its into the views and I continued somebody wrong say previous or I when that unless committed murder, you unwilling apply penalty, be the death would right say right.” am I wrong I or when that?” Answer: “You’re Again, juror very intelligent Mrs. Proctor was who was clear her views. We believe the record sustains the determination that substantially her those views would have interfered with duties as juror.

IV GUILT PHASE ISSUES A. Mug Evidence to Other-Crime and Reference Shot improperly that trial court Defendant contends admitted testimony Specifically, challenges from two witnesses. defendant testimony Anthony kill Gloria Dunn’s that defendant offered children, Boone, testimony the father of one her and the Borm, Club, employee of the Trenton that he Edward identi- photo array. “mug fied defendant out of a shot” We find no prejudice testimony. material to defendant from the present Prior to trial that it did intend to the State indicated 404(b). N.J.R.E. under other-crime evidence trial court representation. accepted this beginning

At testimony, sought Dunn’s the State establish Dunn acquainted. how and defendant came to be Dunn testified that she met in September defendant 1992 at the Trenton approached Welfare Office. Dunn defendant because a friend mistook defendant for defendant’s brother whom she knew. De- name, fendant asked Dunn for phone her address and number brother, presumably time, so that his who was incarcerated at that could call Dunn.

Dunn that day began said defendant called her later variety personal to ask questions her a about her children and boyfriend. whether she was During married or had a this conver- sation, Dunn told defendant living that her children were not with her having problems because she was domestic with Boone. The prosecutor asked Dunn what else she and defendant talked about during following colloquy that conversation. The ensued: having

A. That we was [Boone] that busted windows out of problems, my my [defendant] and stuff. And apartment [Boone] asked me did hurt I me, what doing wanted to be done about him that to because I should me, have kids with my nothing. asking me. And I him told He me. kept He said when was the last I time seen them and stuff. And I told him I seen them. [defendant] And he asked me did I want [Boone] to take care of and I told him no. me, [the defendant] Did tell what he Q. meant when he asked if wanted you you you him to take care of Boone for Anthony you? [defendant] A. He asked me did I want [Boone]. pop What does that mean to Q. you? A. To him kill hurt or him. Did want that to Boone? Q. you happen Anthony A. no. I No, [defendant] [Boone], didn’t want to hurt I him never asked until he talking about it. kept object testimony Defendant did not request to this nor did he limiting cross, instruction. Defense counsel did raise the issue on noting given police, all of her statements to the Dunn had never mentioned argues this conversation. Defendant now testimony machine,” portrayed killing this him “as a thus eliminat- ing possibility that he would receive a fair trial. 404(b) prohibits crimes,

N.J.R.E. the use of evidence of other wrongs, purpose showing or acts for the of that a criminal

172 Cofield, v. predisposed to commit a crime. State

defendant is (1992); Stevens, 289, 328, v. 115 N.J. State N.J. A.2d (1989); Weeks, v. 107 N.J. 526 A.2d 1077 A.2d 833 State (1987). However, may be admitted for limited such evidence intent, motive, opportunity, prepara- purposes proof “such of as tion, identity or accident plan, knowledge, or absence of mistake dispute.” relevаnt to a material issue when such matters are 404(b). N.J.R.E. justify of the evidence to show

The State seeks to admission why during Huggins’ rightfully Dunn was afraid of defendant proffered Had to the trial court that basis abduction. the State evidence, highly unlikely that it is admission IV, position. have See Part Sec. court would sustained State’s hereof, post discussing at of C 716 A.2d balance 404(b) probative prejudicial evidence. value versus effects of stage was a material issue at that of Dunn’s fear defendant not testifying challenge Dunn the case. without on direct exami- testimony sought explain nation. Dunn’s that her fear prevented helping Huggins her from when had the defendant she immediately notifying police and from of the crime. chance slight compared probative The value relevant to that issue was Moreover, prejudicial Huggins Dunn’s assist effect. failure to crimes did little establish whether defendant committed the charged. with he which was

Although may not the evidence admissible under be 404(b), jury against The N.J.R.E. it did not turn the defendant. case, testimony again to this in its State never referred direct rebuttal or admission this evidence was summation. unjust warranting clearly capable producing result reversal. Next, argues testimony regarding defendant Borm’s defen- ability “mug impaired trial. dant’s shot” his to receive fair During testimony, relayed his Borm the course of manner which Police into with him. The the Trenton came contact prosecutor continued: photographs? ever to view Were asked

Q. you

173 A. Yes. Where did do that for the first time?

Q. you A. At the station. police photographs And tell kind were asked to view. us the and number Q. you looking mug A. I was at black and white shots, pictures mostly pictures. There were a few and were a of file cabinet drawers filled to the color, they couple go through. that I had to top January photo place Borm stated that this identification took object testimony 1993. Defendant did not to this nor did he request a curative instruction. mug impermissible

Reference to shots constitutes an reference Cribb, N.J.Super. to a defendant’s criminal record. State v. 281 156, 161-62, Although (App.Div.1995). 656 A.2d 1279 references error, mug solitary, fleeting shots have been found to be generally references will not constitute reversible error. See Porambo, 416, 425-26, N.J.Super. v. State 544 A.2d 870 Miller, 552, 562, (App.Div.1988); N.J.Super. v. State 388 A.2d (App.Div.1978). mug fleeting The reference to the shot was and came testimony after that defendant had been arrested in December Therefore, jury mug 1992. was aware that of defendant shots Despite existed. the lack of a court to the instruction statement, regarding Borm’s there nowas harm.

B. Dunn’s Outburst Gloria ges Defendant contends that several extra-testimonial comments, place during testimony, tures which took Dunn’s that, him denied a fair trial. We find when the comments were made, impact limit that the the court took immediate action to Further, jury’s might jury. comments have had on the response questions posed by to the the court indicated that the exchanges. was not aware of the worst of the

During testimony, following place Dunn’s took out- sidebar presence jury: side the brought Judge, sidebar, attention that while we were been to my Mr. it’s Scully: transcribing occurred at that which busy

while the court obviously reporter co- client my Dunn made a statement my presence that Miss sidebar, threatening her ... I think that should in nature. you question which was counsel, that’s of the record. said. So part as to what she specifically I over and told remember when walked what did Dunn, you say, The Court: Miss what did comments, say? to make no you were you you kill He heard me. I said I his ass. I said murderer, hope they The Witness: her. You killed any The against Dunn further outbursts. court admonished The exchange on the record. placed the full court then admission ... Miss her own Dunn, on the record that also, by The will Court, place or ass,” I kill your and “Murderer. said, hope they turned to the defendant something does not reflect is what the to that effect. the record Deputy What during and recess, to the Court the of the Miss has revealed Court, Diaz, Clerk something that defendant, Dunn said to the that is that when the Miss witness, little of an “Bitch.” So that we have a bit mouthed back the word defendant ongoing colloquy. courtroom, immediately jury’s in the the court Upon the arrival they Dunn’s comments directed at if had heard asked its members they jurors responded that had. majority The defendant. ignore jury to the comments. The court instructed ignored. are to be that does Now, instructs that those comments The Court you has and as the Court mind, not mean that can them out your obviously, you put that not to the comment and remember before, you’re remember you explained in this case. it in determinations. are determinations you consider your They argumentative. arе not for the witness. are They improper are They They disregarded. should be later, requested that the court ask days defense counsel Several defendant’s jury any of its members had heard whether and, affirmatively, any responded if response to Dunn’s outburst jurors individually to whether each of the determine to interview fairly deciding they prevent them from the case. what heard would jury question agreed question trial court but refused The that individually the court reasoned its members because enough to overcome the “overwhelm- significant outburst was they jurors heard defendant’s ing indicated evidence.” No response. on Dunn’s outburst. The moved for a mistrial based

Defendant motion, finding comments that Dunn’s court denied defendant’s nearly ‍​‌​‌‌​​‌​‌​‌‌​​‌​‌‌​​​​​​​​​​‌​‌​​​​​‌‌​​​‌​​‌​‌‍poorly were inaudible and reflected on her rather than damaging defendant’s case.

Additionally, during jury charge guilt at the end of the phase, again ignore any improper the court warned the remarks from the witnesses.

There was no error. The court’s immediate curative action coupled jurors fact that with the did not see or hear defen- response prejudice dant’s to Dunn’s comments limited the Additionally, defendant could have suffered here. Dunn’s state- ments, improper inappropriate, while were accord with the testimony giving. that she was 295, 363, (1996), Loftin,

In State v. A.2d N.J. by gallery Court addressed an outburst a member of the directed jurors at one of the who was moved to tears the defendant’s prompted allocution. This outburst to inform the trial judge they safety. feared for their Ibid. immedi- ately any informed that it that it was to share concerns safety performance had about or the of its duties with the court. 363-64, Acceding request Id. at 680A. 2d 677. to defense counsel’s jurors individually question not to about the outburst for fear it, drawing simply trial a limited attention court asked any anything question whether of them had seen or heard that impact ability discharge would their their duties. Id. at jurors responded negative. A.2d All of in the Ibid. 677. rejected Refusing second-guess strategy, defense Court argument appeal the defendant’s the trial court should engaged provided in have more extensive voir dire and a more 364-65, There, specific jury instruction. Id. at 680 A .2d 677. we taking not in found the trial did abuse its discretion brief, curative action that it did because the outburst had been information, contained no factual and did constitute victim impact jury poll jury that the was evidence because the revealed 366-67, by episode. not affected Id. at 680A.2d 677. a Dunn was facts here are different. recognize that the

We subject of her concerned the testifying whose outburst witness at defendant and were were directed testimony. Her comments however, find, should jury. that the same result audible to the We obtain. polled sufficient. The court court’s curative action was

The trial that, jury did hear Dunn’s although the and found Furthermore, outburst, response. it not hear defendant’s did that defendant already had testified that Dunn court concluded were comments directed at defendant a murderer. Her was appro- testimony. was brief and her Dunn’s outburst accord with limited; judge. The comments were priately handled response swift. the trial court’s was

C. Testimony Anthony Boone’s Exclusion of Anthony testimony Boone sought to introduce the Defendant that she had a nonviolent relation- to contradict Dunn’s assertion Boone, fully credibility and challenge Dunn’s ship order with find that Dunn grounds on which it could provide the with Huggins. killed cross-examination, any- Dunn testified that neither she nor

On Boone. She said that she acting one for her had ever threatened relationship. and Boone did not have violent testify that Boone concern- represented Defense counsel would Dunn, relationship that she had threatened him ing past his with him, wielding a knife on one occasion. physically assaulted participation in had made the extent of Dunn’s Because the State issue, argued testimony critical counsel that Boone’s the murder a allows, 404(b), admissible in certain under N.J.R.E. which circumstances, wrongs part of a crimes or on the evidence of other fact, testimony would rebut material witness. Boone’s only afraid of because she was participated Dunn in the event essentially prisoner. prosecutor respond- The Harris and his was

177 ed, arguing participation that the of extent Dunn’s was irrelevant prosecution to the current and that this evidence should be its excluded because of tenuous connection to the ease. gave three reasons for its decision to exclude Boone’s First, 404(b) (other-

testimony. the court found that N.J.R.E. evidence) (method inapplicable crime was 405 because N.J.R.E. of character) proving qualifies byit requiring conviction of if crime evidence of a character trait is It at issue. also found N.J.R.E. (allowing 608 and 609 character for evidence truthfulness and crime) impeachment by a inapplicable evidence conviction of because the character not evidence did relate to “truthfulness.” Second, I, supra, the court found that under Koedatich N.J. (excluding suspicious 548 A .2d939 car reference at scene crime), testimony sufficiently Boone’s was connected an admissibility. Finally, issue to warrant the court found that the was, thus, had evidence little other relevance to the case and produce excludable under N.J.R.E. 403 because it would confusion delay. or

A defendant a criminal trial has Sixth Amendment right any guilt to offer or evidence refutes bolsters a claim of 445, 452-53, Garfole, innocence. State v. 76 N.J. 388 A.2d 587 (1978) 404(b) (allowing leeway greater to a defendant to offer wrongs” part or evidence of “other crimes on the of a witness case). inquiries when relevant issue In all such evidence, admissibility concerning the focus must be on the fact is sought proven thereby. evidence and the to be What prior in this evidence case? It was evidence of a violent relationship between Boone and Dunn. evidence is often Such parties admissible show one of the to the would violence have reason to fear imminent harm from the other. v. State Burgess, N.J.Super. (App.Div.1976); 357 A.2d 62 see also Nance, (1997) (holding v. State N.J. 689 A.2d evidencing jealousy admissible bad acts defendant as motive another). killing But purpose such was not the of the evidence (1) purpose of here. The the evidence was to show that Dunn was 178 prone woman, likely be Harris and to intimidated

a violent (2) Huggins, and of Kristin commit the vicious act of murder to liar. that Dunn was an out-and-out prove that that evidence was offered to To extent woman, proba violence-prone had little Dunn a the evidence was on this occasion. tive value to show that Dunn had been violent 404(a). proba To evidence had See N.J.R.E. the extent did) (which liar, agree Dunn was a we tive it to show that value excludable under N.J.R.E. 403. If Boone had testified that it was right relationship, have the to a would the State then violent hold, testimony? present further evidence to rebut Boone’s We however, testimony properly this under trial court barred “if N.J.R.E. 403. This permits rule a court to exclude evidence its substantially outweighed by the of ... probative value risk issues, misleading jury----” prejudice, of or undue confusion balancing in test applying A court has re broad discretion Sands, 127, 144, v. quired under this rule. State N.J. 76 386 A.2d (1978). judge’s only A on a decision will be overturned Koeda judgment.” showing that has a “clear error in there been I, supra, tich N.J. 548A.2d 939. judgment. ruling in

The court’s did not constitute clear error relationship with Boone far afield from the main Dunn’s therefore, and, probative minimal issues in this case was of value. relationship years place Huggins’ The took abduction and before ' type misconceptions had about of murder. no what person relationship violent Dunn was. Evidence domestic bearing jury’s on would have had little consideration her testimony degree participation in in or on its belief her only crime. The divert attention from the true evidence would in this issues case.

D. Testimony Accomplice Instruction plea against pursuant Dunn to a Gloria testified defendant bargain. against exchange charges for the dismissal of murder her, agreed plead guilty kidnapping robbing Dunn Huggins testify against Kristin defendant. was a There significant danger receiving that Dunn’s interest a lenient testimony sentence her own offenses her influence would Begyn, See v. prosecution. State 34 N.J. defendant’s (1961) (“This special by A.2d 161 interest comes about reason of hope, bargain, prosecution or even for favor in later treatment of in convicting the witness’ own criminal conduct return aid in for Spruill, v. defendant.”); 78, State 16 N.J. 73, the 106 A.2d 278 (1954) they (“Accomplices,tainted as are with confessed criminali- ty, testimony by strong are often in influenced their the motive of hope pardon.”). of favor or “consistently recognized

This Court has the of a that status an accomplice special witness as or codefendant invites consider- Gross, respect State v. credibility. ation” with witness’s 1, 16, (1990). 121 N.J. 577 A.2d 806 As of such enabling a means special consideration, held in Spruill we that “there cannot be an arbitrary jury specific refusal in to instruct the terms that the accomplice of carefully evidence be scrutinized and of special proceeding.” assessed in the context his interest in the Spruill, supra, 80, vein, at N.J. 16 106 A.2d278. In the same the Jersey’s Jury 1976 of edition New Model Instructions the included following charge: model given [an

The law that the of be careful requires testimony accomplice] scrutiny. (his/her) (he/she) weighing consider whether has testimony, therefore, you may (his/her) interest in the outcome of the case and whether was testimony special reward, influenced the or favorable or or by any treatment hope expectation by feelings revenge or any reprisal. (1976) Charges (citing § [New Model Criminal 4.100 Jersey Jury Spruill, supra, 161).] Begyn, at 16 106 34 54, N.J. A.2d N.J. 167 A.2d supra, conference, During charge requested the defense counsel “charge jury respect credibility, with that the presence plea agreement the State and Gloria Dunn between may evaluating credibility be considered Ms. that,” calling The Dunn.” trial court to do it “a matter “decline[d] argument.” this not argues that decision on matter did the court’s State accomplice charge, in arbitrary of an violation constitute an denial decision, request not Spruill defense counsel’s was of our because sought notify sufficiently specific to the court defendant urges charge “accomplice rule.” The State that defendant on the charge. right accomplice-credibility his to the thus waived “speak with discrimination of an Although one need not States, 452, 476, don,” Davis v. United U.S. S.Ct. Oxford (1994) (Souter, J., 2350, 2364, 129 concurring), in L. Ed.2d instruction, proper preserve right to a defense order to request in his included the version of counsel would better have charge formerly appeared at accomplice section 4.100 of Jury Charges, perhaps cited cases that our Criminal or Model charge. gave whether rise to that model We need debate request, way phrased, it was defense counsel’s because object for are a failure to we satisfied the circum- constituted not have misunderstood that Dunn’s stances that the could testimony suspect. especially reversal,

To establish that the error warrants defendant prove a as must that the error was “of such nature to have been clearly capable producing unjust E. of result.” 2:10-2. Be credibility during thoroughly Dunn’s so cause defendant attacked trial, than the course and because witnesses other Dunn implicate provided ample to the actual evidence defendant as shooter, give accomplice charge the failure to was not revers ible error. credibility every stage Dunn’s at almost

Defendant undermined statements, guilt-phase During opening trial. defense can’t, said, won’t, you you counsel ‘You must not believe Gloria simply simply Dunn unbelievable. She has no because she credibility, you right explaining I submit to at the outset.” After $25,000 reward, police in that Dunn went to the order to collect a 25,000 bucks, continued, got got counsel “She she a never but reward, yourselves, precious much think to more because ladies gentlemen, every day your and each and life is worth. what got king’s for ... providing She a ransom the information to the opportunist: State.” He characterized Dunn anas nothing She’s a fortune she’s cheater and she’s a liar. does unless seeker, She gets big she off for it. she time not because here, paid prosecutor probably go but [the wants to because that’s the ..., to has made prosecutor] only way made a deal with has deal with the devil herself to execute him. devil, cross-examination, On defense counsel Dunn’s attacked credibil- ity effectively. emphasized testifying even more He that she deal,” to in “keep[][her] exchange fifteen-year end parole eligibility guilty robbery. pleas kidnapping on her to and felony He had Dunn admit that she had been indicted for murder accomplice rape, charges and as an which were dismissed when pleaded guilty kidnapping robbery. she and She admitted yet charges. she had to receive sentences those Counsel participation alluded to Dunn’s continued kidnapping spite alleged of defendant’s statement that he would kill their carjacking victim if happened that victim to be white. He stressed advantage opportunities that Dunn failed to take several from the criminal withdraw endeavor. Counsel showed several testimony inconsistencies between her trial and her statements police, gleaning from Dunn admissions that she had lied to the police repeated police as well as claims from Dunn had inaccurately. her recorded statements He also elicited admissions previously pleaded that Dunn had guilty to welfare fraud had both and sold narcotics. used credibility lack of

Dunn’s was the refrain of defense counsel’s jury, Over over summation. counsel warned the ‘You can’t wrong.” something trust her. You can’t believe her. There’s repeatedly plea bargain referred Counsel to Dunn’s and to point, motivation for it. He said at one heck “She’s made herself a deal____ prosecutor’s of a You know what the deal is. The you told was. on ... [Dunn’s] candid. She what deal Based performance, significantly ... would a she receive lesser sen- jury following: And final tence.” counsel’s words to the were the you willing rely willing you “Are to on Gloria? Are to trust using the card. Convict for the sin of MAC [defendant]

Gloria? him, liar.” don’t condemn him on the word a Convict but Dunn It was impeachment of Gloria was extensive. Defendant’s testimony any juror Dunn obvious to that was witness whose scrutiny. The absence the benefit to defen- called careful argument imprimatur through on his dant court’s capable pro- accomplice-credibility clearly instruction not unjust ducing an result.

E. Hearsay Instruction on Statements inculpatory, Trial testified to several out-of-court re- witnesses by example, marks For Dunn testified that defendant. Gloria carjacking kill their if or she defendant said he would victim he white; to Huggins raping that he told in the course of her were off, bitch”; had your that said he to shoot “take clothes defendant dead; Huggins a time to make sure that second she was defendant crime; looking” reported to for Dunn if their threatened “come she “pop” ex-boyfriend. Tariq that to Dunn’s defendant offered Ayres “knock[ing] bragged testified that defendant to him about girl.” off some white challenges jury court’s failure to instruct the to

Defendant testimony considering use caution in such of out-of-court state- argues by He ments. also that the trial court erred instruct- ing that the could not consider out-of-court statements as beyond it doubt evidence unless found a reasonable statements were credible.

Criminal are defendants entitled an instruction evaluating testimony concerning use caution in out-of-court Kociolek, 400, 421, v. statements. State N.J. A.2d (1957). Further, prosecution when the seeks introduce defendant, judge a criminal the trial statement made statement, admissibility required determine the disregard judge must instruct statement if it finds

183 250, 271-72, Hampton, it is not credible. State v. 61 294 A.2d N.J. (1972) (codified 104(e)). recently rejected at N.J.R.E. We argument now advanced defendant that not should be testimony being able to consider such without convinced its Chew, credibility beyond 30, doubt. v. reasonable State 150 N.J. (1997). 82-83, .2d 695A request Hampton

Defendant did not and Kociolek However, request instructions trial. a defendant need not preserve right those instructions in order to them. In State Jordan, (1997), 409, v. 147 N.J. A.2d 97 we held that Hampton charge required, requested not, “[w]hether or when statements, admissions, ever a defendant’s oral or written or 425, confessions are introduced evidence.” Id. at 688 A.2d 97. Hampton charge, charge given “Like the the Kociolek should be 428, requested However, whether or not.” Id. at 129 A.2d 417. we held in Jordan request that if a defendant fails to either the instruction, Hampton judge’s give or Kociolek a trial failure applicable charge per 425, is not se reversible error. Id. at Rather, 129 A.2d 417. Jordan held that the omission of the when, Hampton “only instruction reversal warrants in the context case, ‘clearly capable the entire the omission is of producing an ” unjust 2:10-2). (citing result.’ Id. at 688 A.2d 97 R. applies unrequested same standard to the omission of an Kociolek charge. id. at See 129A.2d417. Hampton charges,

The omission of the Kociolek and against defendant, of the context State’s entire case was clearly capable producing unjust principal result. The value charge skeptical eye cast a Kociolek is to on the sources of inculpatory statements attributed to a defendant. The devastat ing Tariq Ayres accomplished cross-examination of Dunn and addition, Hampton end. the Kociolek and would instructions nothing eyewitness have done to affect the force of Gloria Dunn’s testimony Ayres’ Tariq possessed or evidence that defendant weapon. murder

F. Jury Deadlock it argues that the trial court erred when refused Defendant rape jury’s that it deadlocked on the accept the indication Defendant con- charge and ordered further deliberation. instead the of coerced a verdict on count tends that the court’s instruction jurors, by forcing minority of who assault the aggravated sexual voting guilty, accept position majority. the to the of were not hours the jury approximately deliberated for six over The had days. guilt six phase of The took weeks. course three very Additionally, jury’s “split the the note stated that [was] way a present seem to deep,” but concluded that “there doesn’t at it,” stating conditionally. deadlock resolve thus the language of the period

Given this limited deliberation and note, jury’s requiring jury of did not in to court err yet point deliberating. jury not a at continue had reached Ordering agreement impossible. was further deliberation which Ramseur, supra, See 106 N.J. 524 unreasonable. deadlock). (addressing penalty-phase A.2d 188 jurors minority did trial court coerce the of into Nor majority’s jury to the -to accepting position. The instruction jurors change clearly instructed the not to continue deliberations jurors to opinions simply agree to with the other or “surren their Further, honestly jury court der a view held.” informed the that, opinion morning at the of the should its remain same end day deliberation, accept the court its session of the next would Consequently, not confronted with the verdict. were deliberation, might possibility lengthy possibility have which change juror his or her verdict in order to end the caused simply jury requested spend The trial that the deliberation. morning more in This was not an unreasonable one deliberation. holding our request. The court’s instruction was accord with (1980). Czachor, 593 State v. 82 N.J. 413 A.2d V PENALTY PHASE ISSUES

A. Mitigating Presentation of Evidence 1. Mitigating Factors phase, At the guilt conclusion defense counsel informed they mitigating factors, the court that submit intended to all 2C:ll-3c(5)(h) falling under relating N.J.S.A. and all to defen- replied, dant’s childhood. The court “I have to believe that most probably mitigating factors, of these boil down to five or six which the balance would be subsections.” Defense counsel did not agree reduce the In an number of factors. effort have the factors, separately argued vote each counsel present opportunity “the defendant has an to the as 2C:ll-3c(5)(h) many mitigating [N.J.S.A ] factors under as he pleases.” phase February 26, penalty began

When the on the court one, said it would the 180 into condense factors which was “that abused, tortured, the defendant as a or deprived suffered child.” jury It it “inform weighing process stated would the that the is qualitative, quantitative,” “single mitigating not and that the factor may outweigh aggravating escape-detection both factors and [the felony if the state It factors] establishes both.” also said it would jury any instruct the that it “free to mitigating was find other ... record, factor ... which the is relevant to defendant’s character or or to of objected. the circumstances the offense.” Defense counsel taking wording After of the views the State and the defense on the factor, single of the mitigating the court decided to describe the factor “the of as childhood Ambrose Harris.” penalty phase,

At the end of the the court instructed the as follows: alleged mitigating factor, The defendant has is, one his childhood. The mitigating has the

defendant raised 180 existence of specific points support mitigation single considered as a the evidence in is factor. Whether presented weighed is to be in the of a of factors it points, factor or as sum number or specific against aggravating factors find to exist. the factor or which you its totality instructed, court later The the has a reasonable have found that State unanimously proven beyond If you aggravating alleged, then must consider the or factors you doubt one both alleges mitigating that his of factors. the defendant childhood Here, evidence mitigating mitigating he has or or is a and submitted factor, factor,

a points arguments You or have at that contention. have will your possession, support arguments. list of all 180 or deliberations, the time a your points repeated, considering mitigating alleged “In factors court The defendant, you required all the are to consider evidence prior as to the defendant’s life to October received it relates date, including prior his to that his mental or and character emotional condition.” regard weight to the should attach to the

With factors, mitigating explained: the court aggravating mitigating weighing rather The and factors must be qualitative aggravating against do not count the number of factors than We quantitative. mitigating weight aggravating total of all Rather, total number of factors. it is the against weight mitigating measured the total factors. factors which balancing aggravating mitigating weighing factors is not process, or do count the number of We mechanical numerical nature. We factors. outweigh aggravating found to them One factor be consider qualitatively. may mitigating aggrava- a reasonable doubt numerous factors. Similarly, beyond many ting outweigh single mitigating factors found not to factor. bemay addition, explained could consider “As mitigating factors other than those the court submitted: case, you judges in are not limited to consideration of the this may mitigating listed factor verdict sheet. You find mitigating additional consider factors.” above, mitigating all As noted defendant submitted 180 of his c(5)(h)). 2C:11-3c(5)(h) (hereafter factors under N.J.S.A. That provision category of establishes what is known as “catch-all” mitigating provides: It factors.

(5) jury mitigating factors or the court are: The which be found may by (h) other factor which is relevant to the defendant’s character or record or Any to the of circumstances the offense. expressed preference has a give This Court that courts should c(5)(h). juries guidance specific application example, in the of For (1988) Bey, II), in State v. (Bey N.J. A.2d 887 we inadequate jury charge merely held to be a recited the c(5)(h) language asking jury “any in it whether found other factor is which relevant to the defendant’s character or record or 169-70, to the circumstances of the offense.” Id. at A.2d 887. recognized We requirement “[the constitutional] there that capital sentencing preclude must not consideration relevant mitigating circumstances would be without explanation hollow mitigate imposition of how the evidence can death penalty.” Id. at involving 548 A.2d 887. In another case c(5)(h) separately refusal to court’s list factors submitted defendant, by the compels we stated: “Common sense the deter- wholly-unrelated mination when circumstances evidence c(5)(h), pursuant offered isit not intended to be as a considered IV, single by Biegenwald supra, factor the sentencer.” 126 N.J. at 594A.2d 172. question submit, case is a court this whether must factors, separate mitigating

as a list of occurrences in defen dant’s life. Because the 180 circumstances submitted defen unrelated,” “wholly dant not judge supple were and because the single mitigating points, mented the factor 180 supporting with the we charge are satisfied that the trial court’s was within its c(5)(h) require capital jurors discretion. Section does vote November, 1961, separate questions on such as “[i]n whether special to a Fourth class [defendant] transferred Grade preferable Junior # It 4.” would have been this case for the agree mitigating and defense counsel on a number of factors between one and 180 for the to consider vote on six,” separately perhaps judge suggested. “five as How or — ever, given separate counsel’s votes for all 180 insistence 188

factors, charge presentation properly the trial court’s c(5)(h).4 rights upheld defendant’s under jury aggravating context In the consideration circumstances, guarantee is mitigating the bedrock constitutional sentencer, case, capital kind of that “the all but rarest any considering mitigating factor, aspect as a precluded be from any of or record and the circumstances of a defendant’s character proffers that the as a for a sentence of the offense defendant basis Ohio, 586, 2954, 604, 98 S.Ct. less than death.” Lockett v. 438 U.S. (1978) (footnotes omitted); 2964-65, 973, 57 L. Ed.2d 990 accord 370, 1190, 1196, 108 377, 110 Boyde California, v. 494 S.Ct. L. U.S. 316, Ramseur, 294, (1990); 524 A .2d supra, Ed.2d 327 106 N.J. at preclud principle. The trial court honored this Rather than 188. factors, jury considering ing the from the 180 the court directed juror by providing aspects attention to those defendant’s life a jurors they also explicitly list of each one. He instructed were not any points limited submitted and could consider other past held in factor. We have Constitution does not proffered by all require mitigating trial courts list factors IV, 47, 172; supra, at Biegenwald 126 N.J. 594 A.2d defendants. Ramseur, 292, 106 supra, see N.J. at 524 A.2d Nor does the 188. require jury proffered a vote on Constitution each circumstance. jury preclud a guaranteeing In addition to not be circumstances, considering mitigating capital from a ed defendant may not be sentenced to death based on a instruction that any might possibility its role in creates misunderstand sentencing process appreciate or meaning fail to and function II, 168-69, mitigating Bey supra, circumstances. 112 N.J. 862, 890, (citing Stephens, A.2d 887 548 Zant v. 462 U.S. 103 S.Ct. 4 a scenario in a case, Should similar arise future should a defendant capital allege mitigating judge more factors than considers appropriate recording objections, submission, counsel, defense after relevant should work jury. with the workable number of factors The error present claimed would be have defendant would a better preserved. presentation. 2750, 235, 77 L. (1983); Kemp, Peek v. F.2d Ed.2d denied, (11th 1479, 1493-94 Cir.), 939, 107 cert. 479 U.S. S.Ct. Bass, Briley 93 L. v. (1986); Ed.2d 750 F.2d 1244-45 denied, (4th Cir.1984), cert. 85 L. U.S. S.Ct. 470 105 (1985)). Ed.2d 152 adequate- The trial court’s instruction detailed ly that possibility. closely charge removed It the tracked model Judges Capital printed Appendix Bench Manual for as J to the Causes. prepared by Judges That manual is the Trial Committee Capital rights capital Causes to outline the of the defendants at Ramseur, supra, “necessarily It stage. advisory.” trial is 106 155, 524 N.J. at A judge’s compliance A.2d manual 188. with the to challenge procedure. does not foreclose constitutional However, manual, suggested the instructions in the and the case, charge given necessary do prevent this more than is juror misunderstanding regarding jury’s purpose role5 or the considering of mitigating circumstances.6 Jersey’s require

New in the Constitution does not more presentation jury of mitigating death-penalty a circumstances to 5 example, judge juror individually For instructed that "each must deter- exists, mitigating juror individually a mine whether factor and each must decide aggravating unanimously jury whether the or factors found out- factor weigh beyond mitigating a reasonable or or she doubt factor factors that he present." be has found to judge particular, explained, In important mitigating It is not to remember evidence of factors Rather, justify offered to or to the defendant’s excuse conduct. it is intended present extenuating about the defendant's life or character that facts justify would than sentence of less death. mitigating Mitigating may used to evidence be establish existence of factors, proofs concerning weight aggravating to weaken the state’s factors, weight mitigating or to bolster the factors found to exist in weighing aggravating mitigating to the relation factors. In consider- factor, ing mitigating you may sympathy also take into account such as mitigating inspire. considering may mitigating factor In factors defendant, alleged by required you are consider all the evidence 4, 1965, prior received as it relates to the life to October and his defendant's date, prior including character to that his mental or emotional condition. to the Federal Eighth and Fourteenth Amendments

than do the 1, 9,10, Paragraphs and 12 of Article particular, In Constitution. guarantee capital defendants the do not I of the State Constitution of evidence of a right separately vote on each item to have allege. mitigating those defendants factor single-factor approach is sus- “[i]f cautions that this Defendant tained, duty do to fulfill their is to all future trial courts need then mitigation weigh ‘life’ in under instruct a a defendant’s c(5)(h).” cases, juries capital In doubt that will occur. other We separate mitigating factors under presented with have been c(5)(h). 326, 345, A.2d 306 E.g., Cooper, v. 151 N.J. State c(5)(h) factors). (1997) (eighteen separate one instance a independent finding mitigating a catch-all factor that made an Chew, supra, 150 695 A.2d had not submitted. N.J. been J., (Handler, possible dissenting). It is that the submission factor, broadly mitigating such as a defendant’s entire of a cast life, in supporting kind of evidence the court submitted without the case, impermissibly possi- would create a reasonable defendant’s bility jury misunderstand either its role that would purpose mitigating of circum- capital sentencing process or the Kemp, supra, v. 784 F.2d at 1494. The stances. See Peek “childhood,” together with the exhibit submission of defendant’s judge’s tracking listing that childhood and the of the 180 details of Manual, sufficiently Judges Bench focused the instructions jury proffered mitigating of on its role and the function evidence. Weight” Instruction

2. “Inordinate charge jury, part penalty phase As of its to the the trial court jurors your weight “in to instructed the assessment of the be factors, assigned aggravating mitigating you should not to and supports give weight inordinate to evidence that more than one objected: mitigating factor.” Defense counsel “On the double counting you misspoke. charge I said that charge, think You in, ‘mitigating’ applies mitigating factors. You threw the word to aggravating you responded, I’ll The court “It’s show where.” mitigating.” repeated objection: prosecution “My only or made, [defense comment the one that the word counsel] mitigating was included.” discussion,

Following the sidebar the court re-addressed the jurors charge: and amended its

During the it told instructions, court’s that the same evidence which you supports more than one that, factor should should be aware of should not you you not — weight. give it inordinate the court it made When with reference to spoke you, mitigating aggravating it factors. to factors as well. It Obviously applies applies both of them. “double-counting” Defendant that this now submits instruction apply aggravating only. argues should circumstances He also “give weight that the instruction inordinate evidence that supports mitigating impermissi- more than factor” one created precluded ble likelihood that the believed it was from consid- ering constitutionally relevant evidence.7 disagree. prose- Our cases have established that when the

We prove aggravating cution uses the same evidence to more than one factor, give weight must be instructed not to undue to the Rose, supporting multiple facts factors. v. State N.J. (1988). hand, 548 A.2d On we the other have never prevent capital stated trial courts must from double- counting mitigating support multiple offered in miti- evidence IV, gating Biegenwald rejected argu- factors. we the State’s c(5)(h) listing separate that a ment factors under would lead to double-counting impermissible mitigating circumstances. Be- jury’s double-counting mitigating cause circumstances would double-counting argument challenge Defendant's undermines his to the trial mitigating judge's packaging court’s consideration of his factors. If the mitigating single jurors factor evidence into a from impermissibly precluded considering mitigating double-counting factors, other then the instruction would jury not have would have no double-count evidence occasion to applied. supporting more than one factor because there would not have been more than double-counting argument acknowledges factor. The one that there implicitly mitigating jury was more than one factor before the and that the court's single was a made so factor reasonable accommodation that presentation jurors would not have to conduct votes on 180 factors. separate way rights the an undue implicate a defendant’s constitutional

not would, and because Lockett aggravating evidence concentration on jurors permitted all progeny require to be to consider and its evidence, aggravating mitigating held that “the treatment of we factors, mitigating ... is not relevant to the treatment of factors IV, supra, 48, Biegenwald N.J. at 594 A.2d nor it be.” can However, capital require that a 172. the Constitution does not jury give, say, triple weight or must be allowed to double supporting mitigating factors. On the evidence two or three Pennington, v. 119 N.J. State contrary, 575 A.2d 816 remand, (1990), instructing court that on after we advised the trial prove multiple the same evidence could be used to that factors, cognizant to “be mitigating the court should tell the being prove one same facts are used to more than II, (quoting Bey [mitigating] factor.” Id. at 575 A.2d 816 887) (internal supra, N.J. quotation A .2d marks omitted). jurors required if be al

Even the Constitution evidence, challenged mitigating instruc lowed to double-count merely requirement. violated that The court tion would have weight” jurors not to attach “inordinate to evidence instructed the supporting more than one factor. Neither the federal nor the guarantees capital will State Constitution defendants weight mitigating any to attach inordinate or other be allowed type of evidence.

B. Penalty-Phase Summation prosecution engaged complains that the miscon- Defendant thereby during penalty-phase its summation and violated duct rights defendant’s constitutional to a fair trial and a reliable sentencing determination. mitigating points of the 180 that defendant submitted as

Several from evidence focused on the abuse he and his mother suffered stepfather, defendant’s particular, Walter Williams. defendant alleged daily basis, that Williams beat defendant on a physically frightened defendant, Williams and that defendant figure. lacked a father The testify during State called Williams to guilt phase during but neither side him penalty called phase. penalty-phase presentation heavily

Defendant’s relied on Sheila Fairchild, a investigator social who interviewed a number of people involved with defendant’s childhood. Fairchild did not Williams, interview Walter however. She testified on cross-exami- mother, Williams, nation that defendant’s Mattie told her that Mr. examination, did not to Williams wish be interviewed. On redirect brought defense counsel out that Mattie uncoop- Williams became during erative her interviews. Fairchild When called Ms. interview, arrange Williams to a third Ms. told Williams Fairchild anymore. she did not want to talk to Fairchild Fairchild testified during that her interaction with Ms. Williams this call made “physically frightened” go Fairchild to to the Williams’ house to interview either or judge Walter Mattie Williams. The trial did not allow defense counsel to elicit that Fairchild’s awareness of prior Mattie Williams’ murder conviction contributed to her fear. attempt evidence, In an mitigating to undermine defendant’s prosecution criticized Fairchild’s failure interview Williams. submitted, prosecutor If Miss Fairchild wanted to talk to Walter it could have really Williams, happened. So didn’t she? Because why Walter Williams would have contradicted some of the mitigation evidence that Sheila Fairchild was He would have supposed provide. suggested. told that he didn’t beat Ambrose Harris like the materials you He daily figure,

would tell that Ambrose Harris had a you father and it was he. He would have told that there was no reason for Ambrose you Harris have been physically frightened anything. because him, he didn’t do Is that Miss Fairchild didn’t why might interview Walter because Williams, she was afraid of what Walter Williams if he was asked and liked it much better if she could say Mattie Williams’ rely allegedly statements as to what Williams did? Walter summation, After the State’s requested defense counsel a mis- argued trial or a curative instruction. highlighting He Fairchild’s failure to interview Walter Williams as a means of biased, prosecu- investigation was Fairchild’s

suggesting that inability to elicit advantage” of the defense’s had “taken tion go afraid to made Fairchild murder conviction Mattie Williams’ argument in hearing prosecution’s After house. Williams’ the trial court declined application, opposition to defendant’s instruction. It to issue a curative a mistrial and refused declare as prosecution’s] comments said, merely adopts [the “The court namely, application,” the denial of the or reason for the reasons contact- suggesting that the witness could have that the State was presence of Mattie Williams outside ed Walter Williams appeal that the argues on feared. Defendant whom the witness as it calling to the stand rather than Walter Williams prosecution, (to shovels), the source of the guilt phase establish had done testimony jury about what Mr. own to the instead submitted its that the had he testified. He contends would have said Williams ranged beyond scope of the evidence impermissibly summation right a fair trial. thereby deprived defendant of his may suggest legiti prosecution in its summation The record, it commits drawn from the but mate inferences to be beyond jury. State goes it the facts before misconduct when — denied, 634, Roach, 208, 219, 680 A.2d cert. U.S. v. 146 N.J. (1996). 540, -, prosecution L. 424 The did 136 Ed.2d S.Ct. support prosecutor’s no factual basis to that. There was have said had Sheila what Walter Williams would assertion about finding him. A of misconduct does not end Fairchild interviewed ground misconduct is not inquiry, however. “Prosecutorial our egre- conduct so a criminal conviction unless the reversal of Ramseur, supra, gious deprived it defendant of a fair trial.” 322, 524 A.2d 188. N.J. beginning an isolated comment in the offending remark was intently presence of that concentrated more on the of a summation mitigating lack ones. It aggravating factors than it did on the unfairly only of the 180 circumstances that undermined three jury’s mitigation. It did little to deflect the proffered defendant mitigating theory, through he suffered focus from defendant’s a horrendous childhood. if Even prosecu believed the conjecture tion’s way about Walter Williams would have testified, it still had to confront unchallenged evidence that defen abusive, grew up disturbed, dant mother; with an neglectful that defendant suffered from several emotional disorders aas youth; and that defendant was diagnosed institutionalized and as during “homicidal” his childhood. The misconduct ap did not Rose, proach the unfairness seen in where the State warned in summation that a necessary death sentence was prevent Rose, murdering again, defendant from supra, 112 N.J. at A.2d prosecution and where the suggested that a sentence other than death would violate the law. Id. at 548 A .2d 1058.

C. Jury Concerning Instruction Mitigation Defendant contends that the trial court’s instruction that “to reasonably possible you the extent jury] attempt [the should agreement reach question on the particular of whether a mitigat ing exist,” factor does or impermissibly does not instructed the jury that it was to reach a mitigating unanimous verdict on the factors. The trial court did not err in giving jury the this alone, Although, standing instruction. an instruction type of this may coercive, Loftin, be supra, 375-76, see 146 N.J. at 680 A.2d 677, repeatedly the court jury instructed the that it was not required to mitigating find the existence of the factors unanimous ly. Viewing jury charge whole, do, the as a required as we are 420, 422, Wilbely, (1973), State v. 63 N.J. danger A.2d 608 the charge the erroneous Loftin, was eliminated. See supra, 146 N.J. at A 680 .2d 677.

D. Likely Refusal to Instruct on Aggregate Sentences instructions, penalty-phase Prior to the defense counsel requested jury the court to instruct on the maximum number parole ineligibility in amount of years and the maximum convictions exposed to virtue of his that Harris was

aggregate of, others, among kidnapping, non-capital offenses on the related ineligibility assault, robbery. parole That aggravated sexual declined, sixty years.8 The court over period could have been could even impose that it would or stating “it does not know that many years. jury is further informed rationally that impose deciding this on whether not to consider all of when that it is imprisonment.” imposed or a term of sentence should be death jury on the ruling, court instructed the this Consistent with ineligi- period parole and the individual individual base sentence The court ex- charge that Harris could receive. bility on each jury sentencing and told the and consecutive plained concurrent those sentences will be court would decide “whether jury court also instructed the or concurrent.” The consecutive other convictions should not possible sentences for the “[t]he appropriateness of a death your regarding the influence decision charge.” Defendant contends sentence on the murder concerning request an instruction refusing defense counsel’s sentence, disqualifi- including aggregate parole aggregate Harris’ sentences, ers, instructing jury not to consider these due- Harris’ state and federal constitutional the court violated subject- sentencing hearing and right a fair and rehable process punishment. him to cruel and unusual ed Loftin, supra, 146 680 A.2d Prior to our decision in N.J. emphasized a trial punishment jurisprudence had capital our phase capital a case to inform obligation penalty in the court’s determining appropriateness of jury responsibility in of its apprise practical effect of penalty, the death sentence, prior and to inform the about defendant’s life sentences, eligi- 8 considering possible the extended term Harris was Without ineligibility plus years years parole on all the ble to receive life 75 with 67/6 murder, (Life ineligibility years years parole with 15 for 30 crimes. with 30 years parole ineligibili- years ineligibility kidnapping, years parole with 10 for 20 assault, years years parole ineligibility ty aggravated for sexual 20 with 10 for theft.) ineligibility robbery years years parole for and 5 with 216

197 speculation in preclude order “to about a sentences defendant’s jury’s distorting impose release from decision to life or death.” (1992) 557, 601-02, Bey, III), (Bey v. 129 610 State N.J. A.2d 814 denied, 1164, 1131, 115 130 L. cert. 513 U.S. S.Ct. Ed.2d 1093 (1995). precedent concerning Reflecting sentencing federal infor- jurors that capital mation should be furnished to case in the Carolina, 154, 161- penalty phase, v. see Simmons South 512 U.S. 2187, 2192-96, 133, 69, (1994), 114 S.Ct. 129 L. Ed.2d 141-46 we Martini, (1993), in concluded State v. A.2d N.J. denied, (1995), L. cert. 516 U.S. 116 S.Ct. Ed.2d 137 in penalty phase capital that the of a case jury when defense counsel or the instructions on sentences a requests potential arising will same trial defendant receive convictions from the as his capital- murder such information should be the trial court. The conviction, provided sentencing judge, should be informed of to the ‍​‌​‌‌​​‌​‌​‌‌​​‌​‌‌​​​​​​​​​​‌​‌​​​​​‌‌​​​‌​​‌​‌‍available that options the determination of sentence had not been the trial addition, made. yet should the sentence or not run to that for explain may may consecutively but murder, that the determination is left to the court. the court should Finally, jury inform the that defendant’s sentence for the other convictions should possible regarding influence its of a determination death sentence appropriateness dispelling on the murder count. Such instructions will in confusion on assist jury safeguard against sentencing and will determina- part help improper tions. [Id. at 313, 1208.] 619 A.2d guidelines. judge court followed the Martini The ex- options plained sentencing (omitting for each of the offenses offenders), possible repeat reference extended terms for that he impose would decide later whether to those concurrent- sentences ly consecutively, or potential sentences on other convictions should not affect their on life or determinations death. danger

The issue Simmons was whether when future sentencer, capital is an issue for the ousness should be non-capital effectively informed that the life sentence is without dangerousness possibility parole. Jersey, In New future is not Nonetheless, capital an issue for sentencers consider. we held Loftin in future if cases, court, based the evidence believes that there is presented a realistic likelihood that it will a sentence to be served impose consecutively any in the does not sentences, of defendant’s event return a death prior jury in be so informed. believe that most cases the courts the should We sentence, is a “realistic likelihood” that it will a consecutive

will conclude that there impose in event of a non-death verdict. sentence rather than a concurrent sentence the cases, will reach that conclusion. those However, not every necessarily jury to be the court not inform the whether a non-death sentence likely need consecutive or concurrent. 677.] 146 N.J. at 680 A.2d [Loftin, supra, forty-three years sentencing, at Considering that Harris was old advising jury eligible that he was to receive a non-death parole ineligible he would for until at sentence under which be age equivalent advising functional least 100would have been the Simmons jury ineligi- in be the defendant would forever parole. agree judges, considering that most trial ble for We convicted, type of crimes of which defendant was would find a “realistic likelihood” that some of the non-death sentences would thirty-year parole disqualifier be made consecutive to the place murder. Had defendant’s taken after announced Loftin rule, prospective its defendant would have been entitled to an jury informing instruction of the likelihood of consecutive Loftin, supra, 146 N.J. sentencing. 680 A.2d 677. The however, apply, rule did not because we reached our Loftin decision in several months after defendant was sentenced. Loftin We further believe that defendant’s could not have misunder- gravity non-capital stood of the sentences defendant would explained sentencing options have faced. The court available any If to it. one of the sentences for other offenses were made sentence, consecutive to the murder Harris would have been at eighty-three years least old before release. Thus defense counsel say could to the that its choice was between death and “life pre-Loftin charge given by prison.” find no error We court.

VI OTHER ISSUES record, completeness preserve For we note and defen- challenge proportionality dant’s to the of his death sentence Jersey death-penalty his assertion that the New statute violates Eighth argues Amendment. Defendant that the fails statute narrowly death-eligible persons to define the class of fails to provide system meaningful appellate a review. review,

Following proportionality we shall consider this chal- lenge respect to his challenge sentence. With to defendant’s statute, constitutionality death-penalty of the we to our adhere Ramseur, 190, 188, in supra, decision 106 524 N.J. A.2d rejected arguments Eighth which we that the statute violated the 1, para- Amendment of the United States Constitution or Article graph 12 Jersey of the New Constitution.

Similarly, preserve challenge we also note and defendant’s trial permit possibility court’s refusal to aof non-unani- jurors purpose- mous murder verdict which are divided between ful-or-knowing felony murder and murder. Under non- unanimity theory, jurors if some believe that a defendant intended jurors to kill accidentally while other believe that he killed in the and, hence, felony guilty felony course of a is murder but not murder, purposeful-or-knowing then the result is a non-death- eligible murder conviction. by

That Cooper, issue was resolved the Court’s decision in 326, supra, only 151 N.J. 700 A.2d 306. We add that the absence potential of a non-unanimous murder verdict had far less for harm Cooper. here than in There was little doubt here that the murder head). (two knowing purposeful or was bullets to the The real score, gun. jury issue was who fired the On permitted to return non-unanimous verdict on the own-conduct charge. jury every opportunity realistically thus had charge convict defendant non-unanimous verdict of the carrying penalty. the death

Finally, post-verdict remarks of the trial court did not complimenting taint the verdict. After defense counsel and the team, jurors themselves, prosecution and the court reflected citizens, jury’s “Judges, may on the verdict: like other have judge philosophically op- feelings particular This about laws. your all penalty. But if it will ease burden at posed to the death time, you among if it the court hastens to tell had been at this for the death you, it would have been the first to cast the vote necessary, penalty, or if the last.” did, Coming after the had returned as these remarks verdict, could not have influenced the verdict even its the words jury. “Subsequent though they province entered the jury’s discharge, improper praise to thank or it is not dutifully conscientiously per having served on the complex capital ... it long functions. In a formed their gratitude might express court want to is understandable that the Belmontes, jurors along People 3d to the these lines.” v. Cal. (1988), Cal.Rptr. 755 P.2d cert. denied sub 1034, 109 848, 102 California, S.Ct. L. nom. Belmontes v. 488 U.S. (1989). should, however, making A from Ed.2d 980 “refrain cannot, not, any indicating perform comment that it or will its Id., fairly remaining obligations impartially and under the law.” cases, Cal.Rptr. capital sentеncing In 755 P.2d 353. this, jury. aspects province of the as in all other of a trial, capital display impartiality. do court must the strictest We believe, however, conveyed any that the court’s words measure trial; partiality prejudgment. long it a hard or This was a approval guilty perhaps express trial. It is natural to of a verdict emotionally-laden defendant had derided both so case. The crime, family judge and the other victims of his of Kristin Huggins. shocking

A crime law to its severest test. Law over natural puts triumphs guilt regard for aroused such a crime if be ascertained due by impulses only safeguards those which our civilization has evolved for the ascertain- indispensable guilt. enough goes through of law. ment of It is not that a trial the forms guide judge where life is at stake it is that the trial should so Especially requisite death should be the that the be to determine whether may equipped for must itself. But it is not conduct. Of course society protect surely penalty to take life without the most careful observance of its society self-protection safeguards against the misuse of own capital punishment. [Fisher v. 66 S.Ct. 90 L. Ed. States, 463, 477, 1318, 1325, United U.S. (1946) (Frankfurter, dissenting).] J., system as this test the of our of criminal Cases such measure justice judges, lawyers, Although enforcement. and law outside — sought denigrate indeed, influences undermine fundamental — (the innocence, safeguards presumption our civilization trial), right counsel to a fair assistance of and the counsel, defense, prosecution ensured both the observance safeguards indispensable this case of those for the ascertainment guilt. VII We affirm defendant’s convictions. We also affirm his sentence of death.

SCHEDULE A MEDIA SAMPLE PUBLICITY J., STEIN, part concurring dissenting part. in and in majority opinion accurately judiciary’s The the describes re- sponsibility guarantee despite to a fair trial by the exercise the press right of its inherently prejudicial constitutional to circulate publicity during before and a trial. rights In an world free ideal would seek to fair foster trial not press circulating prejudicial during at least a time of If inherently publicity trial. this guarantee rights so, cannot be courts must the fair trial without preservation ¡freedom restraint of the editorial

any press. (citation omitted).] [Ante A.2d at 470-71 fully agree I with Justice Handler’s conclusion the adequate preventative court’s refusal to take measures address prejudicial publicity the effects compromised of the midtrial defen- right view, however, my dant’s to a fair In prejudicial trial. only effect of the trial penalty court’s inaction undermined 1(c) phase of join part the trial. I therefore of Justice Handler’s opinion, only but it the extent that concludes defendant’s Accordingly, death be sentence vacated. I would vacate defen- dant’s death penalty join sentence and remand for a I new trial. majority opinion respects, in all other to the extent it is my with concerning inconsistent conclusion defendant’s death sentence. J.,

HANDLER, dissenting. an atmosphere saturating, publicity, Burlington vicious County jury convicted in defendant Ambrose Harris Mercer Coun- ty carjacking, rape, kidnapping, and murder of Kristin Huggins. jury same him The sentenced At trial die. defen- actively guilt, particularly dant contested trigger- his his status as and, hence, eligibility man his for the death sentence. Defendant directly appeals right as of his convictions. primary appeal issue that defendant raises this relates to massive, pretrial inflammatory publicity and midtrial about the conviction, impact trial, and

ease its on his his his and death concerning sentence. Defendant also raises claims substantial adequacy jury jury voir dire as related selection taint, guilt the failure to bifurcate penalty for the trial, phases of the the trial penalty-phase court’s failure the trial to or exclude neutralize inadmissible evidence introduced guilt phase, at the jury and the failure to inform the that die, event defendant were not to sentenced he would receive lengthy robbery, kidnapping, consecutive sentences for the and aggravated sexual assault convictions.

I principal conclude that defendant’s claims error are valid impacts prejudicial and that their thwarted a fair trial. The Court and vacate his death sen- convictions should reverse defendant’s therefore, I, dissent. tence.

I horrendous, sensationalistic, publicity and unremittant A sea of Trentonian, daily prosecution. The a tabloid news- engulfed this exclusive, primary, of this unabated paper, almost source was torrent. requested proceedings to initially that the be closed

Defendant that, media, changed, if the be and court declined venue venue, jury County impaneled. change a from Camden be to ruling acknowledged applications, those court, however, posed a trial. The Trentonian a threat fair impanel rejected requests. agreed It defendant’s nevertheless County. foreign jury from Hunterdon a interlocutory ruling, Appellate appeal from On impanelment foreign appropri- of a Division held that the court, by failing racial ate but that consider demo- impaneling County a graphics refusing consider Camden A.2d jury, N.J.Super. its 539. had abused discretion. remand, court, again rejecting request the trial defendant’s for On County change impanelment or for the of Camden venue convenience, selected, jurors, Burlington County from although the circulation of the Trentonian and Trenton Times was County County significantly Burlington than in lower Camden County demographics the racial between Mercer and Camden County Appellate similar. The Division denied leave were to. appeal that determination.

A. Huggins Publicity up about the started as soon as Kristin case disappeared in 1992. The Trentonian and Trenton December

213 Times devoted extensive coverage to this case.1 Trentonian and the Trenton majority of the in the articles crime, Times described investigation, victim, her family, defendant, criminal proceedings, and defendant’s Trentonian, However, significantly record. to a and lesser Times, degree the Trenton focused on shocking defendant with beyond vastly reporting. sensationalism that went factual As soon Trentonian, implicated crime, as defendant through was in the headlines, editorials, editor, its viciously and letters to the at- Huggins, tacked defendant. Its articles on constantly Kristin referring to stressing repeatedly her as “artist” and that she had life, begged family’s for her her grief. dwelled on funeral and her They sympathy.2 were calculated to arouse enormous trial, headlines, Trentonian ran cover before in huge

Well titles, print, and accompanied by large photos article often defendant, Did,” “Suspect such as “He What Knows He Loud- Punk,” Terror,”3 Daily mouthed “A Dose “Profile of a MON- STER: The man who Huggins killed Kristin committed his first appendix Defendant submitted a five-volume to this Court contains chronicling publici- hundreds of articles and extent nature deleterious trial, ty, during both before and that surrounded this case and that were carried Trentonian, newspapers. in the other the Trenton Times and publicity by April Most far occurred between the murder and when again spiked defendant was It arrested. when defendant and Gloria Dunn were mid-1993, attorneys indicted when defendant his at the dismissed end of robbery charge when defendant tried and convicted of an unrelated mid-1994, guilty pleaded agreed testify when Dunn Gloria and State in present proceeded began late and as the trial of the case and in late 1994 early 1995. stating many,” "Thoughts The Trentonian ran headlines "Artist in hearts of death,” G-d, Kristin," good art her head filled hours before “Dear take care Huggins' swept grief,” "Kristin death the residents of Trenton with waves of “City grieves year after artist’s brutal murder.” ran The Trenton Times a front- page stating "Missing family pain-filled headline artist's lives in limbo.” When trial, Huggins's parents emphasized sympa- testified at the Trentonian further its thy. alleged This headline other referred defendant's terrorization of inmates. beast,” slayer boy “Huggins

rape teenager,” “From as “ disguise,” Makes Pris- prison,” “He’s ‘Satan’ terrorizes Satan says Hellhole,” rape will Bloody, Fiery “Expert indictment on “ HIM!,” jury to KILL Wild Animal’ Guaranteed 30 prompt ... Konko, Bars,” just maggot,”4 call him [sic] Behind “Nevermind names, lawyers The Trento- “Stop calling and Ambrose whine.”5 Boy,”6 nian “Squirt but it also em- frequently called defendant savage,” ployed such as “useless “well known epithets, other sweat,” bait,” coward,” armpit and “fruit “annoying “executioner’s faulty contraceptive.” of a quoted stating: as Trentonian point

The someone “No one get fry with it and him. trial. He shouldn’t live. Just on No trial.” A Trentonian reporter, attempt responding to defendant’s Lumumba, “[F]rankly, change to his name to Konko stated: we spell couldn’t care calls himself. it less what Just Ambrose/Konko right tag.” toe on the appeared in

Direct and vicious attacks on defendant also “BackTalk,” in page Trentonian’s known as which the tabloid spoken opinions. opinions The publishes readers’ selected for responses grossly and publication the editorial vilified defendant. example: For hanging High’s have Football Opinion: “Why don’t we a Trenton Field? public all we invite Heck,

We can invite the students. can from all around to everybody give see what to who don’t care about other it a Why happens people peоple. for shot? I’ll pay rope!” I to can “Nice but was the first to offer for the You Response: rope. try, pay buy gallows, though.” the lumber for change legal This to to headline referred defendant's his name to attempt Konko Lumumba. "Hug- Times, Courier The a entitled ran an article Pennsylvania newspaper, ” gins 'Would Kill You in a Heartbeat.’ Suspect injection Trentonian has The nickname refers the lethal Boy" "Squirt defendant will receive. hoped “I liked to the caller it who said costs more execute Opinion: your response being someone than to them in about The comment keep prison. rope cheap good.” very bring get “Let’s back the death and set let’s rid of Opinion: penalty up lottery monsters like Harris, Ambrose ok? Let me be the first to the switch on this pull guy-” chair] “It turns out the hot [i.e., either, electric isn’t so Response: squat pricey get the industrial rate from the electric Two or provided you three company. bucks for all those and volts. tops amps What deal.” ‘Creeping long taking "When Justice’ called to about how it’s Opinion: complain get trying murdering around to the worthless scum BackTalk now refers piece knowing long to as but said, take solace in ‘Squirt Boy,’ you Wes, eternity paying and hell’s fires endless.’ so, Ed, but the meantime still Maybe we’re enjoy thugs long.” room and board. These Boy’s too much and too Squirt prison trying bright “I was to look on the side. will be Response: only Squirt Boy screaming enough, screaming soon he’ll be forever ever.” unsigned page egregious editorial continued campaign: this Harris has to have a trial and he has to be best the provided representation justice can money buy. That’s what our Then taxpayers’ system there requires. will and be usual further appeals appeals. justice, But from if years now, there is the last have someday, will been appeal rejected and the last of sentence vacated. stay On that Ambrose Harris—cold-blooded be a day, murderer —will to strapped gurney. drugs A will needle be inserted into his arm and a of prison lethal mixture injected will be into his veins. biggest blight Minutes one of later, of human trash to ever Trenton’s pieces gone, passing. will streets be and the world will abe far better for his place Trentonian ... The at various times has as “Artist referred Harris Slayer,” “Maggot,” and the latter in of Boy,” when the “Squirt anticipation happy day right get does what’s and him sends to the execution chamber to the lethal injection he so deserves. richly change Well, [defendant’s Mr. venue, Call who his attorney, attempts coverage] criticized the Trentonian’s can whine and moan all he wants about how maggot spotlight, his is too much in the but the truth is he himself there pet put capping Huggins. his criminal with career and murder of Kristin It rape may scumbag offend Call’s sensibilities hear his client referred to as “Artist Slayer” and but an artist he and a will “Squirt slayer is he be if the Boy,” squirt boy things it not, does its Like or that’s the duty. are, Law way Boy. consistently portrayed negatively The Trentonian defendant as the Trentonian example, repeatedly referred to possible. as For killer” criminal Ambrose Harris.” defendant as “artist and “career “Life a criminal” and another “Life It one article career titled and crimes of Ambrose Harris.” addition, implied by using large quotes that sensationalistic it,” as “He did were those of individuals —such statements die,” All must and “Ambrose a “Grieving parents: murderers articles, the Trentonian its in the titles of terror” —on covers and inflammatory injected opinion comment and in its ostensi- editorial reporting. factual ble

The Trentonian laced its factual reporting with references “reported” sociopath. as a It that “The Killer hates to defendant ” alone,” joke,’ hunt Harris sees ‘murder as and “Ambrose flicker across television scenes violence “[w]hen sereen[,] alleged report- It rapist ... killer and smiles.” also guards prison ed that fellow inmates and hated defendant. Trentonian reports opinions regarding ran a number of article, agree “People defendant. One such entitled Harris ” live,’ ‘shouldn’t stated: message should die: That was from the Ambrose Harris the simple yesterday young grizzled guys from house barmaid, the war the ice and vet, stylish secretary. All torture— Trenton, across Greater called for the death people penalty —even Huggins, Harris for the killer of Bucks artist Kristin whom County suspected raping killing 17,1992. on Dec. accused no for a like He’s a said “There’s excuse human that. waste Annie space,” justice longer in her 20s. call for Summers, barmaid Her early speedier Chambersburg. in sentences won at Jule’s Tavern Trenton’s support long [ago]. [his.entire] Med time He’s a criminal “He should have been a been house life,” Shaffer, 42, said John a veteran who works an ice in Vietnam colleagues on One of volunteered to Harris so to ice, Trenton. Shaffer’s put speak. (lethal give injection),” man, “Let me him the said the who identified squirt girls suffering through as “For ... himself Paul L. all the he those put only they make him suffer for a while.” should offered modes of execution. A 62-year-old Several various people secretary high from idea it should done “at noon Trenton who offered one such said be on Broad and Market.” The American Civil Liberties wouldn’t be Union hear all the calls happy shooting Huggins for who has to stand trial yesterday Harris, simply yet murder. fought Burg Bulge. an trial,” “No said man of who Battle 81-year-old good. get “He shouldn’t live. He’s no Just on with it trial,” him. No fry give said the WWII vet and retired streets worker who wouldn’t his name. city Apart case, from charges present in the defendant had an extensive record that included violent offenses. The Trentonian Times,, referring and the Trenton often to him aas “career criminal,” a spree,” engaged “one man crime a “troll” who had in a like, “rape spree,” repeatedly and the publicized defendant’s rec- ord in egregiously, headlines and article titles. Most on the first day penalty phase, published glaring, the Trentonian front-page eyed slay: headline that revealed: in ’67 “Ambrose prime suspect Remains murder.” unsolved publicity racially inflammatory. Some the midtrial was It fact an raped dwelled urban African-American man testimony and murdered a suburban white woman. It recounted Huggins that defendant referred as “white bitch” and had robbery spare stated that he would a black victim but kill a white reported one. The an alleged story Trentonian about defendant’s jailhouse campaign against of terror white inmates. It stressed rape had by allegedly telling he threatened another victim her “just girl.” she should resist because he had killed a white papers The Trentonian and other pur- also stressed defendant’s ported having girl.” comment about “knocked off some white clearly publicity jury.

Much of the intended to influence the example, For guilt-phase jury after the commenced its delibera- tions, initially charge aggravated it deadlocked over the sexual stating juror assault. The Trentonian ran a cover “One stalls juror reported alleged verdict” and about holdout who “could “Dawdling save Harris’ life.” Another headline remarked: Harris jury public’s draws fire.” After the trial court instructed the deliberations, deadlocked to continue its convicted charges. following defendant all the The Trentonian ran the front-page why’s smiling? headline: “GUILTY! So this killer

218 go juror crying, 7 he thinks never No. she’ll

Because he’s seen reporting That occurred while the unse- penalty.” for the death jury, during the courthouse lunch and questered could leave which individually exposure publicity, voir dired about to which was not discussion, period days. over a of See continued to deliberate 225-30, In a particularly 716 vicious A.2d at 514-16. infra Harris,” editorial, published an “Death for the Trentonian entitled unsigned urged it to sentence defen- open letter to the dant to death. intensely The publicity was concentrated Trenton. Trenton, throughout present is and around site

Trentonian vending plethora the trial. A of streeteorner the crime and Trenton, includ- machines and “hawkers” sold the Trentonian County ing surrounding area the Mercer Courthouse. Due font for the ubiquity the Trentonian and the immense used headlines, inescapable page cover front-page the Trentonian’s capital. in this State’s

B. right a guarantee In order to a criminal defendant the fair Dowd, 717, 722, jury, v. by impartial trial Irvin 366 U.S. 81 751, (1961), 1639, 1642, L. 755 trial must S.Ct. 6 Ed.2d court pretrial precautions take sufficient minimize adverse mid- capacity juror perceptions infect publicity trial that has the (1983) Williams, 39, 63, v. N.J. 459 641 the case. State A.2d I). (Williams necessary if precautions Those are “realistic pretrial publicity” prejudice from exists. Id. at 67-68 likelihood 45, 641; Bey, 112 n. 459 A.2d accord State v. N.J. 548 A.2d (1988) I). (Bey pervasive There no doubt that can be pretrial publicity prosecution and midtrial that surrounded this created a realistic likelihood that defendant would not receive precautions fair trial. The taken to overcome woefully inadequate publicity to assure a fair trial. were (1987) A Biegenwald, v. 106 N.J. .2d 130 State II), (Biegenwald recognized Court distinction “between by in atmosphere corrupted eases which the trial is so publicity prejudice may presumed pretrial that be and cases which extensive, publicity, intrusive, making while is less the determina publicity tive issue the actual effect of the impartiality on the of (citations 38, omitted). jury panel.” Id. at 524 A.2d 130 determining pretrial publicity whether and midtrial lead to a presumption prejudice, including of several factors evidence of community hostility, extreme prominence of the victim and/or defendant, coverage, the nature and extent of the the size of the crime, community, gravity the nature and of the temporal and the proximity publicity trial, to the are relevant. State v. 23, (1991) 1, IV); Biegenwald, 126 N.J. 594 A.2d (Biegenwald 172 Koedatich, 225, 272-73, (1988) v. State 112 N.J. 548 A.2d 939 (Koedatich I). If presumption the court determines that a of exist, prejudice it does then must take curative steps without

regard to its belief about the actual of publicity effect jurors. case,

In this both trial Appellate court and the Division agreed presumption prejudice that a of N.J.Super. existed. 282 413-15, volume, 660 A.2d intensity, 539. Given the sheer and case, hatefulness of purported journalism the Trentonian’s in this Appellate correctly Division held that the trial court had not its concluding presumption prejudice abused discretion in that a of According Appellate Division, existed. to the findings there more than record for court’s that adequate support “vengeance seeking against as of a Trentonian, crusade” has part defendant, “prolonged” a “stream of invective” that has been and published “constant,” permeating of “sensationalized," there is “likelihood its taint the trial,” and vengeance.” “the Trentonian will continue to foster [Id. 539.] 660 A.2d at 415, majority The concurs: “There can be no doubt that this case accompanied by widespread, inherently prejudicial pretrial media coverage. Strong ‘necessary measures were overcome the prejudice pretrial realistic likelihood of from publicity.’ Williams I, supra, 93 at 67 n. 459 A.2d 641.”Ante at 716 N.J. A.2d at 469. in a different class from pretrial publicity in this case was I, supra, in Koedatich experienced the defendants 272-73, (concluding presumption prejudice A.2d 939

N.J. at community lack evidence of arise there was did not because defendant, against nor- victim was hostility neither defendant servant, community, public the victim was not prominent in the outsider, defen the articles did not assume defendant was two-year lapse most intense guilt, and there was between dant’s II, trial) Biegenwald supra, and 106 N.J. at publicity and prejudice (holding no arose because the presumption A.2d 130 trial). Many publicity had six months before been concentrated proclaimed unqualifiedly the articles in this case assumed stridently his guilt defendant’s called for death. The articles literally County during and the trial. See flooded Mercer before (11th Cir.1985) (annul- 1487, Kemp, v. F. 2d Coleman 778 1538-40 ling through corpus, of conviction and writ habeas defendant’s basing killing family death for of a and its sentence vicious change in grant trial court’s failure of venue decision light prejudice publicity, from presumption of of saturation-level enforcement, particularly publicized assumption guilt of law evidence, atmosphere, of revelation inadmissible hostile calls 1164, 2289, death), denied, 106 S.Ct. L. Ed.2d cert. 476 U.S. 90 (1986). 730 defendant, extensive, publicity prejudiced

Because the vicious obligation adequate to take trial court had a constitutional received a fair trial. measures ensure that defendant circumstances, compelling required face those a of measures Louisiana, 727, 723, change of venue. See Rideau v. 373 U.S. 83 1417, 663, (1963) 1419-20, (stating in ease in S.Ct. 10 L. Ed.2d 665 capital videotaped which defendant’s confession was televised that process “we not ... of law in this do hesitate hold due case required community people a trial before a drawn from of ”); who had not seen and heard televised ‘interview.’ [defendant’s] 130; II, 34, Coleman, Biegenwald supra, at A 106 N.J. 524 .2d supra, (concluding change n. although 778 F.2d at 1541 & 25 remedy presumption of is the normal to counteract of venue

221 dire, remedies, prejudice, thorough other such as voir can rebut Alabama, (5th Mayola 992, presumption); v. 623 F.2d 1000-01 Cir.1980) (same), denied, 913, 1986, cert. 451 U.S. 101 S.Ct. 68 L. (1981). recognized Ed.2d 303 This Court has for a need venue change prejudicial publicity when capital infects a trial. “While recognize change may disrupt we that a of venue court administra- tion, imperative it capital that the in a defendant case receive an impartial jury. Trial grant courts should not be reluctant change motions for of in capital contrary, venue cases. On the I, grant liberally.” courts should such supra, motions Koedatich 282, 112 at N.J. 548A.2d 939.

Although generally has not Court found that failure to change capital error, venue in cases constitutes reversible those quality cases did not involve either or the extensive vicious of newspaper coverage present in gave this case that rise to the Marshall, 1, presumption prejudice. of v. See State N.J. 73- (1991) (Marshall denied, I), 929, 113 586 A.2d 85 cert. 507 U.S. I, (1993); supra, S.Ct. L. Ed.2d 694 Koedatich 112 N.J. 939; II, 36-37, Biegenwald supra, A 548 .2d at N.J. error, A.2d 130. If I change the refusal to in venue Koedatich presumption albeit reversible error there was no because case, change prejudice, then the failure to venue this which presumption prejudice, carries a was reversible error.

I escape find no from presumption the conclusion that a that, prejudice requires change venue the absence of a change, venue a reversal of defendant’s and vacatur of convictions his sentence must follow. noting jurors majority, empanelment

The foreign “the of was management suggested the first trial that technique Williams I to preexisting prejudicial pretrial publicity,” combat the effects of 146, ease, concludes otherwise. Ante at A.2d at that 716 470. options employ, the Court several for a to enumerated trial court venue, including foreign change impanelment jury, of a of and augmentation jury pool, in to contain effects of order the 67, publicity. adverse 93 at 459 A.2d N.J. 641. The Court also 222 Id. voir dire adequate to latent need detect bias.

stressed the for 68, at A .2d641. 459 acknowledges argument “that

The defendant’s Court merit danger prejudice goal [from to the that because the ‘minimize adjudicatory pro- pretrial publicity] will infiltrate the extensive I, cess,’ 268, supra, (quoting 112 A.2d Koedatich N.J. at I, supra, 641), 93 N.J. at A.2d the Williams most effective potential jury to a a minimizing of the select from method county range Trenton which was outside the circulation the (alterations Ante newspapers.” at 716 A.2d at 471-72 original). trial court firm “[t]he The Court concludes that took steps to ensure that none of those households received the (the newspaper containing inflammatory Trentonian the most material) jury” this made differ- “[i]t would be on little Burlington ence the were from or Camden coun- whether ties.” Id. strongly disagree A.2d at I 472. with conclusion. attempted presumed prejudice

The trial court cure the merely by arising pretrial publicity empaneling from from County Burlington inquiring superficially exposure about pretrial during publicity selection. The court’s deficient response overwhelming failed to overcome the effects of the prejudicial publicity. general pretrial during approach publicity trial court’s

voir had subject juror if dire inquire only was to into the reason, inability been as excused a more fundamental such death-qualified. proceed pretrial- to be did When the court issue, form, asked, it publicity simply leading often in whether or venireperson newspapers was a reader Trenton whether he knowledge venireperson or had other If the she case. negatively, questioning answered ended. The court did not probe venireperson may or further about what have heard example, read had For from others who read about case. queried: gather you pa- I never “And read Trenton was, however, pers?” question penetrating That neither nor “No, surprisingly, venireperson responded: extensive. Not the I who read the Trentonian potential juror them.” never read One “regularly” incredulously professed anything not to know about As was the case with all voir dire prosecution. the the after selection, of day attorneys permitted second the were not to The voir dire ended without him questions. any ask examination string by of venireperson the rather incredible of assertions that, although he had read the Trentonian Trenton Times basis, regular a he never even had of or heard Ambrose Harris any aspect However, other of the case. when a venireperson question publicity-exposure affirmatively, answered the then situation, questions. court asked additional such another de- spite venirepersoris case, knowledge specific clear of her article, from Trentonian gleaned knowledge, about defendant’s card, Huggins’s use of MAC and her admission she had seen Trentonian headlines on the subject, barely explored exactly may what she seen and how that have her. affected had venireperson possessed When a communicated that she some ease, knowledge engaged superfi- sort of about the the court in a cial, leading, and often about nature of the venire- discussion person’s exposure explore venireperson and failed whether the exposed had inflammatory been the nastier and more of side coverage. the Trentonian’s jurors they

Three of seated stated that never had of heard court; coming attempt the case before the trial court did not jurors. delve much further with those Four had small case, degree knowledge generally barely and the court however, knowledge. jurors, evaluated that Five seated demon- potentially greater degree knowledge impression, strated a or responded slight degree to which the trial court probing with a highly leading questions. juror, example, the form One who, jurors’ questionnaire, as from indicated had “some knowl- Harris, edge about the defendant Ambrose or the facts of put I gather, case” was asked the court: “And I don’t want to mouth, your question you words in but with the next indicate that year you missing artist was nothing knew about a old who grave; in a He found shallow correct?” answered: later “That is correct.” knowledge pry potential into further about

Nor did court record, cursory even the most read of defendant’s criminal which reveal, dealing would an of the Trentonian with the case issue especially given repeated to as its references defendant “career If a Harris.” See ante at 716 A.2d 509. criminal Ambrose case, possessed knowledge venireperson some about the there was knew, consciously or a that he or she subcon reasonable chance sciously, aspects of about other inadmissible the case. attorney participation

The court’s elimination of contributed clearly per- inadequacy the voir dire. Defense counsel of Burlington County jurors problem exposure to the ceived the of of expressed of a Trentonian the court comment venire- person high knowledge Burlington County about the level of in respect about the case. The trial court’s attitude in that became particularly attorney-conducted when it ended voir troublesome concerning questioning pretrial dire and conducted its own limited spite publicity. steps The took in of defense court those counsel’s questioning he to focus his dire clear statement intended voir exposure pretrial publicity. on The court’s solution towas pretrial exposure publicity issue of “from concentrate Thus, response point venireperson’s expressed on.” in to a this knowledge many Burlington of case and of the statement County jurors knowledge precisely case had of the because of Burlington County’s proximity County employ- and the to Mercer many Burlington County County, ment of residents in Mercer simply basically fact trial court concluded that this irrelevant May in publicity Cape because there also be or would Sussex County. though presumption preju

Even the Court concludes that of venue, changing trial in dice can be overcome without precautions pretrial failed to counteract this case to take sufficient Coleman, supra, publicity. (concluding See F.2d at 1542 leading questions during pre- court’s voir dire did not overcome sumption prejudice). Burlington County Because Mer- borders many County, Burlington County cer residents of work in or Moreover, County. around Mercer the Trentonian and Trenton 11,000 Burlington Times each have circulations of about Coun- ty. Consequently, impanelment foreign jury of the from County, dire, Burlington light inadequacy of voir did not provide adequate change substitute for and did not venue presumption prejudice. rebut pretrial publicity re- quires reversal of defendant’s convictions and vacation his death sentence.

C. The trial also failed to counteract the effects the substan- tial publicity jury. midtrial had on the Defense counsel under- standably publicity effects of was concerned about the the midtrial jurors consequently proposed prophylactic the and several proposed rerouting juror measures to the court. He the bus and escorting jurors rejected into the courthouse. The trial court proposals, though those they unopposed even were the State. rejected request require The trial court also defense counsel’s to lunch, jury jury during sequester in the to remain the room to the jury during phase, jurors penalty the and to voir dire the individu- ally Instead, during phase. penalty only the the court admonished jurors day dealing anything the each not to read or with the watch case; separate occasions, jury on three it also asked in the entire and, open exposed publicity, court whether it had been to on each occasion, shook “no” in their heads unison. trial,

During typically the TrentoniarCs wrath was directed Nevertheless, jury escape defendant. did not the tabloid’s jury ire. After the was unable to reach a verdict on all counts deliberations, day guilt-phase after the first the Trentonian’s juror Page cover read: stalls headline “One verdict.” three jury “Dawdling public’s fire”7 entitled Harris draws articles were juror spared was not “Lone save Harris’ life.” The could counts; day it of all the Trentoni- after convicted defendant headline, adjacent photograph front-page appearing to a an’s why’s depicting grinning, announced: “GUILTY! So defendant juror crying, smiling? Because he’s seen No. 7 and he this killer penalty.” That go for the death week the thinks she’ll never juror Quaker, reported also that number five was Trentonian religion’s newspaper opposing feared that his tenets preclude voting him capital punishment would from sentence defendant die. day publicity

The midtrial was most volatile on the first penalty phase. day, cover That the Trentonian ran a headline headline, large implicating defendant in a murder. The type, proclaimed: eyed slay: prime “Ambrose in ’67 Remains three, suspect page newspaper murder.” unsolved On printed reporting of a killed an article that the son woman in 1967 had committed the murder. It was also in believed defendant an printed urged this issue the Trentonian editorial jury to sentence to death. defendant Trentonian, response inflammatory this issue of the urged juror defense counsel the trial court to dire each voir court, individually. morning declining That conduct dire, merely anyone voir if individual asked en banc had and, exposed newspaper noting or been to articles headlines the courthouse, newspapers risk that Trenton could be in the seen jury newspaper coverage the to of admonished avoid the trial. only time en That was the third the court conducted an banc voir concerning exposure publicity. dire to midtrial The court also permitted jury during the leave the courthouse the lunch following quote: people figured This article contained the set-aside "Most the think, county, jury squirt would have lunch the we'II ‘We’ll on and him—this afternoon.'" addition, again inquired In court any recess. never whether juror exposed publicity. had been to the midtrial I, Bey 79, 846, supra, 112 N.J. at 548 A.2d the trial generated publicity, substantial much of contained which inadmis- defendant, including prior information sible about his convic- pending tions his indictment for another murder. This Court held that the trial had abused in relying only court its discretion Id. at polling an jury exposure. admonition without about 81, 548 A.2d 846. individual voir dire of Court stated The that jurors jurors presence “likely outside of the of other to be uncovering any exposure questioning more effective in is than banc, 26, Id. at 86-87 n. jury era in open court.” 548 A.2d 846.8 stating: The Court concluded questioning jury prejudicial The when procedure threat- impaneled publicity integrity ens the fairness and of a should not defendant’s trial be invoked begrudgingly. suggest relating While do not mean to we to the any publicity proceedings defendant or the will that the be automatically require polled, might ruling court choose to err on the when side of caution on such properly designed motions. The uncover prophylactic nature, procedure potential prejudice significant rights might go constitutional otherwise extremely and to do so at a time

wholly undetected, when corrective measures remain ordering a new trial is, “[W]e before has become the only possible, option____ must remember that reversals are but the cure lies in those remedial palliatives; prejudice measures that mil at its prevent inception.” (citations omitted) (quoting [Id. at 548A.2d 846 v. 89-90, Maxwell, 384 Sheppard (1966)) 1507, 1522, 16 ]. U.S. 86 S.Ct. L. Ed.2d 600, 620 majority, simply Bey jurors noting that unlike the who admonished, questioned “Harris’ generally were were occurred,” ante inquiry exposure and that that no revealed had 8 The Court also cited to the American Bar Association Standards for favorably 8-3.5(f) Relating § Justice, Free Criminal Standards Fair Trial and Press (1978), which states: during goes If it is determined the trial that material disseminated beyond

the record on which the case is to be submitted to raises serious prejudice, on its own motion or shall on questions possible may juror, motion of either each others, out presence party question about his material. to that exposure (internal I, at 87-88 & 112 N.J. n. 548 A.2d [Bey supra, quotations omitted) added).] (emphasis 228 I, distinguishes Bey supra, and therefore 473, 716 A.2d at voir dire of should not form the

concludes that “a denial individual reversing a conviction when there is no evidence of basis for ante 473-74. exposure,” at A.2d at reasoning is of evi The Court’s flawed. absence direct exposed jury publicity, the was to the which was dence Trenton, to of can be attributеd the lack individual unavoidable dire. inadequate ized voir woefully to the trial court’s effort Due jury exposure publicity, to to the reliance on the uncover Court’s publicity proof jury exposed direct had been absence of the Moreover, Bey disingenuous misplaced. two-part I’s and under test, enjoined vigorous the trial in this to take court ease juror exposure publici to midtrial prophylactic measures avoid First, ty. publicity given the to defendant’s criminal and to record allegations perpetration of his the unsubstantiated a 1967 homicide, execution, his the calls for conviction and and the encourage jurors and attempts to to convict to sentence defendant possible jurors quickly as as were calculated to influence the and Second, capacity prejudice given had the defendant. the sheer prominence of the Trentonian’s cover coverage, volume of stories, the Trentonian and Trenton Times in and sales around courthouse, newspapers’ and substantial circulations Burlington County, “realistic possibility there was a that such I, jurors,” Bey may information have reached or more one supra, N.J. A.2d 846.

Sequestration during penalty-phase probably deliberations shielding would .also have means been effective 6(b) Rule during charged those allows deliberations. the trial 1:8— discretion, court, sequester jury during at its a civil or criminal publicity, deliberations. Due to the midtrial court massive sequestered jury during penalty-phase should have delibera- tions. least, very

At the should have barred the from during leaving the their room lunch modified bus route to the Trentoni- entry exposure into the courthouse to avoid graphic inflammatory an’s Although jurors covers. pre- the sumably attempting were conscientious in exposure to avoid to publicity, midtrial we exposed, cannot be confident that none was given preventive the utter lack of by measures taken the trial imagine court. It is difficult jurors to that none of the ever were exposed prejudicial publicity. to jurors midtrial The began their day by being courthouse, bussed to probably passing by the the headlines, huge by Trentonian’s entering the courthouse being guided away without By from the tabloid. they the time therefore, were morning, seated each significant possibility existed that one or more of exposed them had been either con- sciously subconsciously or to publicity some sort of regarding lunch, either defendant or jurors the itself. At were permitted to wander around the courthouse and the downtown area; this exposure. increased the chance of During the entire trial, including penalty phase, they night, went home each they yet where had opportunity another exposure. for inadvertent Yet, by when asked the trial court on three occasions whether they exposed, they had they been failed to indicate that had. Of course, surprising given that failure is not the attendant embar- open-court rassment to such an admission.

Moreover, precautionary the one measure that the trial court actually took —occasional jury regarding potential voir dire of the exposure prejudice insufficient to neutralize the by created —was potential exposure publicity. Although to midtrial this Court in I, Bey supra, refused to create blanket rule of individualized voir dire of gauge exposure, order to strongly it intimat- approval procedure, ed its of such a 112 N.J. at 86-87 n. A.2d favorably and cited to ABA standard that recom- mends individualized voir dire. Id. at 87-88 n.& 548A.2d 846. rely exclusively To on admonitions and occasional en bane voir open discover, dire in gauge, court to to and to counteract potential juror exposure inflammatory to the massive and midtrial publicity in seriously this inadequate response. case was a The trial court’s steps consistent refusal to take serious to address the take mea-

midtrial-publicity problem indeed, it even refused to — prosecutor oppose impossible did almost sures —is explain, and does not do so. Because understand or to the Court duty adequate discharge its take failed flowing prejudice from precautionary measures minimize Court, alone, publicity, midtrial on this basis should reverse least, very At the vacate defendant’s conviction. Court should his death sentence.

D. majority clearly recognizes danger posed the ‍​‌​‌‌​​‌​‌​‌‌​​‌​‌‌​​​​​​​​​​‌​‌​​​​​‌‌​​​‌​​‌​‌‍extreme surrounding prosecution: this publicity involving the court’s Because in eases death a trial under penalty responsibility danger prejudice both the and state constitutions is to “minimize the that federal adjudiсatory [459 93 A.2d Williams, 39, will infiltrate the State v. N.J. process,” (1983) (Williams I), 641] we hold when hereafter a reasonable that there is likelihood trial of a will be that the case surrounded capital by presumptively (as law) prejudicial that in media is understood the court publicity phrase should case to another restraints devices, transfer the Other such as county. against concerning material trial or publication sequestration jurors, continuing have either to be unavailable to counter the effects of proven prejudicial or to a effect than In some cases a desired. publicity produce contrary prejudicial that an initial will have conclude tide of may inherently publicity change at will not of venue subsided time of trial and a if the selection require jury. E.g., [548 State v. 273-82 yields 225, N.J. process impartial Koedatich (1989) (1988), 939] denied, 813, 102 A .2d cert. 109 S.Ct L. Ed.2d 803 U.S. (Koedatich I). a however, court is satisfied that is a reasonable When, there continuing prejudicial likelihood of the at a trial of recurrence capital presumptively might change infiltrate the a of venue is trial, required. publicity [Ante 463.] at at 716A.2d 133-34, necessity Understanding change preserve a of a venue cases, one, swamped by prejudi- fair trial in such as this that are publicity, prospectively cial rules: the Court change In future cases a court should the venue of trial when a capital capital prejudicial a there is likelihood that continue realistic will publicity presumptively during prejudicial recognized trial. conduct of a as Presumptively publicity barrage reporting but need include all of the inflammatory may following: would be trial, evidence that inadmissible at the editorial opinions guilt or and media on the death-worthiness of a innocence, pronouncements defendant. [Ante 471.] at A.2d at 147-48, 716 That belated and anemic concession of the trial court’s error has ring. defendant, a dull and hollow It is too little and too late for by jury who was inescapably sentenced to die exposed highly prejudicial publicity.

II The voir dire in wholly this case was insufficient and failed to adequately lead the selection of an death-qualified jury and was grossly inadequate failing high to overcome the risk of racial bias.

A. Jury began selection on October 1995. The trial court and parties agreed that the court-conducted voir dire would be fol- by attorney follow-up voir dire. However, lowed on October the trial court voir dire. attorney-conducted terminated Jersey court reasoned that New had attorney-eon- characterized ducted voir dire death-penalty “vestige” cases as a and that “all of the evils that change sought eradicate,” the 1969 rule including juror “shopping,” court, capital remained in cases. The noting “exasperation jurors] incomplete [of at the or twisted questions counsel, by thrown at expressed regret them” defense having excused the two who had been “confused” hypothetieals. defense counsel’s inquiries It limited counsel to “only purposes “hypo- clarification.” Counsel could not ask questions strictly thetical which are not based on the law.” As a result, attorneys longer permitted any ques- were no to ask Further, tions. defendant exhausted his peremptory allotment of challenges peremptories. and was denied additional

Although the determination attorney-con- of whether to allow ducted voir dire rests court, in the sound discretion of the trial Pennington, State v. 547, 591, 119 N.J. (1990); State 575 A.2d 816 Hunt, v. 330, 347-48, 115 N.J. (1989); v. State 558 A.2d 1259 Williams, 393, 10, (1988) 113 N.J. 426-27 n. 550 1172 A.2d (Williams II); Zola, State v. 384, 394-97, 112 N.J. 548 A.2d 1022

232 939;

(1988); I, 291-92, supra, A.2d 112 N.J. at 548 Koedatich 28-30, 130, II, capital in Biegenwald, supra, 106 N.J. at A.2d especially to suggested trial must be sensitive defense cases courts 10, II, questions, supra, 113 426-27 n. voir dire Williams N.J. at II, 1172; at A.2d 130. Biegenwald supra, 550A.2d 106N.J. encouraged attorney participation This active voir Court has Pennington, supra, at A.2d 816. dire. See 119 N.J. process The validates selection that was Court now permitted voir followed this case and concludes that the dire 161-70, adequately jury. death-qualified the selection Ante at disagree. 716 A.2d at I 477-82. jurors trial

The court excused three out seven for cause as attorney-conducted initially result of voir dire that al- was lowed. court’s The trial accusations —that defense counsel attempting sabotage process going aggressively and was perceived misplaced. coun- pro-death after Defense —were attempt disqualifying opinions; sel was entitled to to reveal the Moreover, is the voir purpose of dire. defense counsel’s misleading. they questions questions, were Unlike Court’s open-ended inquiries. consisted of dire, attorney-conducted When the trial court terminated voir it permitted parties questions to ask submit the court defendant, prospective jurors. Throughout process, the voir dire form, proposed many questions in written relating to a wide variety court, however, subject The areas. asked few of proposed questions. his majority, indicating provided [trial] that “the court a ‘thor biases,”

ough searching inquiry' jurors’ into the attitudes ruling attorney treats to eliminate and reduce voir dire dismissively. Ante A.2d at 478. dire, attorney-conducted

Before the termination voir defense spent prospective jurors counsel considerable time with about punishment. capital their views the trial terminat- Once dire, conducted, attorney-conducted generally ed voir it over repeated defense counsel’s objection, and death-qualifi- strenuous dire, cation voir in leading dire manner. In its voir the court through went its describing routine of death-penalty process extended, asking and leading questions juror to which the re- sponded in the objected affirmative. Defense counsel to this superficial form of Despite voir dire. uncertainty equivoca- and expressed by many tion prospective jurors, simply the court uncritically qualified and them.

In the voir prospective jurors dire of several eventually who case, were in jurors seated initially responded often death appropriate only for Upon some murders. further questioning types about which inappropriate murders were death, they responded that inappropriate it was for accidental deaths, self-defense, or some other form of nonmurder. The court explained then the definition again of murder juror asked the type what of murder deathworthy. juror would be would respond “vicious,” “cold-blooded,” then “premeditated,” “high- level,” er type or some other of intentional murder deserved the penalty. Finally, death describe, the court would in leading manner, the penalty mechanics of the death Jersey New elicit responses jurors affirmative ability from the about their follow the law. IV, Biegenwald 36-43,

In supra, 172, 126 N.J. at 594 A.2d this Court criticized the trial court for leading nature of its questions, probe problematic its failure to responses, frequent its exclusion of defense questioning counsel from the process, and its explain failure to obviously the definition of “murder” to confused II, venirepersons. supra, 415-17, Williams 113 N.J. at 1172, A.2d this Court termed go the trial court’s refusal to into depth further about the effect of other crimes on “serious Martini, error.” 211-12, See also State v. 131 N.J. 619 A.2d (1993) (Martini I) (holding, if kidnapping charged murder, capital addition to inquire trial court must into effect of kidnapping charge denied, prospective jurors), cert. 516 U.S. (1995). case, 116 S.Ct. 133 L. Ed.2d 137 In this the trial court committed the same error Biegenwald committed in IV and clearly open- asked more

Williams II. The court should have Zola, supra, 112 548 A.2d 1022 questions. ended See N.J. jurors’ (approving open-ended questions feelings about of elicit accompanied by penalty for appropriateness of death murders robbery rape). robbery, charged kidnapping, with

Because defendant was murder, rape, simply capital in addition to the trial court asked if, counts, prospective jurors assuming all conviction on the exis- ability crimes affect their tence of those other violent would consistently mitigating The court asked simi- consider evidence. minimalist, leading questions despite lar about other crimes de- repeated in-depth request fense for more voir dire on counsel’s subject. regarding presumption of The court’s voir dire innocence Moore, 420, 455-56, inadequate. v. 122 N.J. also State (1991), inquiry, A.2d endorsed an individualized Court through juror questioning questionnaire, either direct or a into Although presumption attitudes about innocence. specific, open-ended questions court asked a number of on the subject, problematic juror go responses unexplored it allowed requested questioning.9 even after defense counsel further The jurors by engaging leading descriptions in would rehabilitate failed, however, presumption up of innocence. It to follow by open-ended questions asking further to determine whether the description presumption had court’s of innocence educated they problematic respons or still adhered to whether their es.

B. egregious shortcoming jury- The most fundamental and qualification process subject racial related to bias. Racial juror that if be One stated the defendant did not he must "comforta- testify, slightest ble” the State's court did not to elicit even with story. attempt subject and did not return to the defense counsel’s explanation specific despite that it do so. request problem was a in this case bias critical case. This involved the alleged carjacking, rape, young, and murder of a suburban white by man. purportedly woman an urban black Statements made backdrop caused to be defendant the racial the case even more prominent. Huggins focused and Defendant as referred bitch,” testimony Tariq Ayres “white there was that he told girl,” he had “knocked off white told Dunn some and he that he spare carjacking would a black victim but kill a white one.10 overtones, Because of those racial themes and defense counsel requested engage that the trial court voir extensive dire on racial bias questions and submitted numerous to that effect. The bias, proposed questions with dealt racial to the reaction facts of case, statements, reaction to defendant’s attitudes and about changes Trenton and the that have in cities. occurred court, was, most, Remarkably, stating the trial that race “incidental,” crime,” type not that it did view the facts as “a bias shot,” overriding by long that race and “is not issue a had a perceived different view of the case. The court that thus this case implicate It great did race. stated: it to ask a “[I]f were [cjourt race, questions concerning number of would be effect, by telling emphasis, its this is a race case. betrayed And that is not court the circumstance here.” The a misapprehension about governs serious the law that the conduct of prosecution particularly capital-murder a a case—in which race — patent definition factor is a that must be taken into account to assure a fair trial. only question-

The court-conducted voir dire minimal included ing Initially, simply about racial bias. the voir dire consisted of permutation question: following single sort of of the “In some this case, Harris, defendant, victim, Mr. is a black male. The Huggins, year Kristin was a old white Given female. those factors, any way your that in would influence determinations in regarding Huggins's Dunn's the role of in defendant's race intent testimony during thus, kill was a dire. and, unknown voir surprise invariably, predictably, “no” question elicited

this case?” The questions no race to each court asked other about answers. The venireperson. jurors eventually qualified dismiss the

Defendant moved to concerning inadequacy voir dire racial because of the attitudes; stay pending subsequently a dire moved for voir he court the motion. The trial the trial court’s consideration of stay, Appellate Division the denial. denied the affirmed Division, however, Judge During argument Appellate in the oral noted, judging adequacy of voir apparently Skillman without dire, questions permissible request- if case-specific race were by party. response suggestion, and the ed defendant compiled joint questions propounded State list ten race to be jurors jurors. previously qualified prospective and to future accepted recalling previously qualified trial The court idea of jurors, case-specific questions. but it refused to ask ten race

Rather, simply the trial court’s reformulated voir dire consisted leading questions of a few focused on the “white bitch” statement. generally “white in a treated the bitch” remark repeatedly inadequate racial voir vacuum. The Court conducted dires, including ultimately those of were seated. Most who “I in response elicited similar to don’t think so” to the answers allegedly having question trial court’s about whether defendant’s jurors’ Huggins potential bitch” called a “white would affect instance, ability to be In each the trial not follow fair. court did up ambiguous responses. uninformative and Others those expressed a to know context of For desire the remark. example, venireperson why called one said: “I’d want know he venireperson “I her that.” The added: don’t think it would affect may, imagine standing it. It’s hard it it alone. some context know, itself, you meaning. a different But it doesn’t have seated, really.” eventually “I juror, who was don’t One stated: Yet, bearing, I way think it has a and that’s the he talks.” assume questions venireper- the trial court failed to ask additional these Consequently, good defense with asserts sons. counsel reason question that “the implied court’s thereby correct answer and n virtually hollow, assured that responses vapid would be and and of no use to counsel.” eases,

The single, Court has noted that in some general race question can be sufficient to impartial jury. ensure a fair and E.g., Loftin, 295, 342, (1996); State v. 146 N.J. 680 A.2d 677 State Ramseur, 123, 244-48, (1987). v. 106 N.J. 524 A.2d 188 Court, however, recognized has that a more extensive voir dire is required: often prejudice Racial be either blatant may to detect or subtle and therefore easy probing voir dire that elicits more than a more difficult to discern. A or “no” “yes” excusing will aid court in

response for cause and will prospective exercising challenges. assist the defense in its When the defendant peremptory cognizable group, searching a member of a voir dire should be a more minority if conducted, requested. [Williams II, 113 N.J. supra, 428, 1172.] A.2d Several factors obligation determine whether the trial court has an deeply to delve more question jurors’ than one prospective into racial attitudes. These include whether the crime is interracial in nature, Ramseur, 245, supra, 188, 106 N.J. at 524 A.2d whether inextricably up case, 247, race is bound with the id. at A .2d 188, whether requests specific the defendant questions, additional Loftin, 342, supra, 146 N.J. at 680 A.2d and whether defense counsel has an opportunity deeply subject, to delve more into the (1990). McDougald, State v. 120 N.J. 577 A.2d 419 enumerated, Under the factors that this Court has the trial court’s grossly inadequate. race-based voir dire was In-depth First, voir dire clearly imperative. about race was the crime was Second, interracial in despite nature. per- the trial court’s firm contrary, sonal belief to the race awas central feature of the case given multiple racially motivated statements attributed to itself, defendant and the crime in which a white suburban woman gone city gotten carjacked, had into the raped, and murdered by a black man. The appeared racially murder itself to have been Third, repeatedly requested motivated. defendant more extensive voir dire and proposed even submitted an extensive ques- list of Fourth, tions from which the court could have chosen. the court dire, attorney-conducted precluding deep- voir thus terminated all inquiry by shortcomings defense er defense counsel. The of by inability participate fully further counsel’s was exacerbated go depth jurors into greater specific the with court’s refusal requested by example, by the when defendant. For comment eventually that prospective juror who was seated “I assume that’s way probe and the failure to further into that he talks” court’s Fifth, troubling. questions particularly comment are were nature, leading they decontextualized and in and thus elicited short, beyond vague responses. They go were not tailored to obvious to delve into A bias and latent bias. number appeared recognize questions nature of context-free responses, their as “I such don’t think so” “I’d want to know why up he called her that.” The court did not follow on these responses not allow to do so. and did counsel “[sjtill, majority questioning concludes that was suffi ciently probing gain to enable court perception and counsel jurors’ agree. Ante at A. at 166. attitudes.” 716 2d I cannot handling The trial far court’s the race issue voir dire fell amplified short this Court’s standards. That error was dire, court’s inadequate pretrial-publicity especially voir because publicity alleged about extensive defendant’s remarks to an rape already victim that she should not resist had because he killed a white woman.

C. searching The purpose of a voir dire is to ferret out biases jurors may express initially they may but reveal with sophisticated, open-ended more questions. Voir dire does not simply jurors, leading questions, exist through to induce to aban- “correct,” problematic responses agree don and to with court’s death-qualifying jury-selection so process answers can quickly end minimal inappropriate with dismissals for cause. The approach, however, trial one that the court chose. The seriously in a court’s voir dire number of areas was made- quate in substantially important its failure to delve aspects into case, leading the its reliance on questions, lectures and and its acceptance problematic responses, attempted it which to cure through leading questions. harmless,

The voir dire deficiencies cannot given be considered dire, centrality the aspects the deficient of voir defendant’s peremptory challenges, exhaustion of his and the trial court’s augment refusal to peremptories. the number of defense No defendant should capital be convicted of murder and sen- tenced to death based on the voir dire that in occurred this case. The Court should reverse defendant’s convictions and vacate his death sentence.

Ill Early case, in proceedings in this defendant for moved separate guilt-phase penalty-phase juries so that he сould testify during guilt phase exposing without his criminal record penalty-phase jury. accompanying affidavit, In an defen- testify dant stated that he would if the trial were bifurcated. Defendant contends that the trial court’s denial of his bifurcation effectively deprived motion him right testify, of his in violation of his rights. state and federal constitutional 2C:11-3c(1) provides:

N.J.S.A. jury, proceeding Where the defendant has been tried a shall be by [penalty] judge jury conducted who at and before the which presided guilt, good determined the defendant’s that, the court cause, except may for discharge jury proceeding and conduct the a empaneled before proceeding. purpose of added).] (emphasis [ Thus, may a impanel penalty trial court a second for the phase good if it determines that cause exists. considering cause,” “good the definition of this Court has highly

focused on the existence of prejudicial only evidence that is during Erazo, phase capital admissible one of a trial. See State v. 112, 130-33, (1991); Dixon, 126 N.J. 594A.2d 232 State v. 125 N.J. 439, 474-75, (1991); Long, 119 N.J. 223, 250, State v. 593 A.2d 266 Dixon, (1990). supra: “Given stated As the Court 575A.2d 435 sentencing, repeatedly have capital we nature of the structured subjected to extraneous juries not to be are emphasized way in a neither jury’s verdict may influence factors that at by statute.” 125 N.J. nor authorized contemplated A .2d266. that, times, limiting instruction recognized has

The Court admissibility highly prejudicial limited insufficient and cause, jury. requiring a bifurcated good thus constitutes evidence Erazo, separate penalty-phase “A supra: stated As Court prejudicial is so jury guilt-phase evidence commends itself when trial.” fairly phases of the jury could not sit both that the same IV, supra, 126 133, Biegenwald In N.J. 594 A.2d 232. 126 N.J. at 172, by 44-45, that reliance the State A.2d the Court held 594 phase during penalty the aggravating factor prior-murder on the juries of the inadmissi- require separate because generally would necessity of during guilt phase and the bility of that evidence aggravating at voir dire. discussing that factor expressed in Erazo concluded that the concerns The trial court Brunson, by 132 “assuaged” State v. like cases had been and other (1993), required trial courts to A .2d 1085 which N.J. 625 jury. In presented that are to “sanitize” criminal convictions jury fact, endorsement of implied that Erazo’s the trial longer good law type ease was no because in this bifurcation conclusion, however, was effectively it. That overruled Brunson erroneous. standards, presents good cause. Defen- this case those

Under offenses that extensive record of serious violent dant had an record been significant period of time. Had this extend back during guilt phase, limiting in sanitized form introduced even prevent it from sub- have been insufficient instruction would during highly affecting jury’s sub- stantially deliberations by of the light of the indication six jective penalty phase. record at they considered a defendant’s twelve seated determining in appropriateness least somewhat relevant of a sentence, given high defendant probability stresses of such a prejudicial impact. why jury

Another highly reason bifurcation would have been that, appropriate in this which-this ease is unlike the cases in other motions, Court and jury-bifurcation lower courts have considered limited-admissibility this case involved evidence that the State only testify, could introduce if defendant were to which case defendant’s record impeached credibility. would have his Before trial, testify defendant indicated affidavit that he wished to but prevent that the lack doing bifurcation would him from so prejudicial impact because of his criminal record. -As a jury, result the trial refusal court’s to bifurcate defendant testify elected not to in his own Consequently, defense. the trial court’s decision not to bifurcate the must be evaluated not only light prejudicial impact of defendant’s record on the jury’s penalty-phase light deliberations but also in of defendant’s defense, Arkansas, right testify in his see Rock v. 483 U.S. (1987) right S.Ct. 97 L. (holding testify Ed.2d 37 594, 626-28, right); Savage, federal constitutional State v. N.J. (1990) (same 577 A.2d holding Jersey under Constitu- New tion). capital prosecution, right

In the of a context a violation of the harmless, testify cannot be of deemed because its fundamental (Minn.1979) Rosillo, nature. v. (holding State N.W.2d harmless). right testify Further, violation of to not be could prejudiced by defendant was the trial refusal court’s to bifurcate. challenged It is safe to he assume that would have Gloria Dunn’s allegation triggerman that he was the that and he would have actually pulled trigger. may testified that she the That be in- strategy generally, mostly ferred from the defense which focused Dunn, on on noncapital and defendant’s allocution at his sentenc- ing in proceeding, which he that Dunn was insisted the murderer. Thus, assuming granted that the court had the bifurcation motion Dunn, he, had and defendant taken the stand and that not testified testimony reasonably could triggerperson, defendant’s was the have the verdict. affected

Therefore, to I that the trial court’s erroneous refusal conclude beyond reasonable doubt. the trial was not harmless bifurcate the on vacate defendant’s death sentence based Court should testimony could have af- possibility that defendant’s reasonable and, triggerman of defendant’s status as fected the determination thus, death-eligibility. defendant’s

IV presentation, presented no Relying guilt-phase the State its during the penalty phase. The instructions that new evidence the consideration, jury guide application, and evaluation received to its reaching evidence the ultimate determination —whether inadequate, put grossly con- defendant should be death —were tradictory, confusing. penalty-phase presentation, began his the trial

Before defendant effectively the the done court instructed “what state has this, during guilt placed you is it has all that heard the evidence trial, phase upon aggrava- the the it relies that to establish ting alleges.” opening it In its to the factors which instructions jury, may only you the court had that “the evidence which stated presented during phase guilt consider that was of the trial may support which be used to one or both of evidence aggravating closing charge In its alleged factors the state.” court, jury following presentation, after penalty-phase factor, felony-murder defining aggravated elements stated that sentencing proceedings. guilt and are the trial considered phases separate regarding guilt Therefore, must deliberate facts established in the you anew, any aggravating And which state factor. have relies

phase upon prove you right reach a about such facts in the different conclusion penalty phase. instructions, Despite guided the court never those segments may specific guilt-phase about evidence that not have Although penalty phase. in the been admissible defendant did request instruction, such its omission the court constitutes a duty plain breach of its to ensure a fair trial and to amounts error. only jury during Because the issues penalty before the the phase aggravating are the mitigating determination of factors factors, balancing guilt and the those of evidence at the admissible phase necessarily Dixon, penalty phase. is not admissible at the 249-50, 266; Rose, supra, 125 N.J. at 593 A.2d State v. 112 N.J. 454, 507-08, (1988). A .2d Because of the distinction phases, jury between the two the trial court must instruct the guilt-phase may jury during about evidence that the not consider penalty Erazo, supra: its deliberations. theAs Court stated in jury When the same both trial, hears the the court should phases provide jury guilt-phase on instructions the to which [in] extent the use its evidence may guilt-phase deliberations. Even when is not penalty-phase evidence incorporated danger jury during in the the abides that the will on it penalty phase, the rely jury concerning deliberations. the court should instruct penalty-phase Thus, that it evidence use its deliberations and the which may penalty purposes that evidence be used. may (citation omitted).] [126 N.J. at A.2d 133, 594 aspects guilt phase during Several not were admissible phase. penalty testimony regarding Gloria Dunn’s defen- ex-boyfriend “pop” during dant’s to her offer admissible guilt phase, prove but was not aggrava- admissible either statements, ting racially-based including factors. Defendant’s his bitch,” Huggins as purported references “white his statements girl,” alleged that he had “knocked off some white and his Dunn he kill spare assertion to would a white victim but victim, assuming they during guilt black were admissible phase, clearly prove aggravating were inadmissible either of the factors. court, however, jury only

The trial instructed the that it had to any guilt-phase on on it during redeliberate evidence which relied penalty phase rely only guilt-phase and that the could aggravating mitigating evidence that was relevant to the alleged. factors specifying court erred which aspects guilt-phase during penalty evidence could be used phase Had and which could not. the court instructed the

244 subjective highly penalty phase, at the the

disregard that evidence may sentence balancing process that resulted defendant’s death prejudiced The error defendant. Court been different. have death should vacate defendant’s sentence.

V charge jury the trial court the requested that Defendant twice guilty of crime of murder under that it could find defendant the he being unanimous about whether was N.J.S.A. 2C:11-3a without felony guilty or murder. The purposeful-or-knowing of murder Instead, request. the the trial submitted court denied jury types separately. The court instructed the the two of murder “[bjecause purposeful the or that the or criteria of elements murder, felony you knowing murder are different from those of separately. may You find the defendant not must consider each both, both, guilty guilty guilty or of one but not of the other.” of of Although upheld jury instruction in v. the Court a similar State (1997), 326, 356-63, given Cooper, N.J. 700 A.2d the dynamics extraordinary capital prosecution of a murder and the importance unanimity indispensable as the basis determin deathworthiness, ing death-eligibility I it both and believe is patently require felony-murder nonunanimity unfair not to J., instruction, 431-42, (Handler, dissenting). id. at A.2d 306 indis nonunanimity A instruction on an element of murder goes pensable death-eligibility. It condition defendant’s process punitive requirements of the death heart of due penalty consequently part is an essential ultimate capital prosecutions. fundamental fairness that must surround given. Accordingly, I to insist that such an continue instruction be VI penalty-phase response request to a to inform the defense likely if aggregate of what the sentence would be defendant spared penalty, were the death the trial court determined it inform the minimum and maximum instead would noncapital obligation sentence for each conviction and of its not to deciding consider those sentences whether to sentence defen- dant death. The court told counsel that “[w]hat [c]ourt has summary paragraph, suggested not done is it has not included a defense, explaining years maximum number of imposed parole be ineligibility. could and the maximum amount of The reason Court has done that is that it does not know impose impose that it would could rationally many or even years.” instruction, jury

In its the court informed the of the minimum highest possible and maximum term for each offense and the parole bar. The court then stated: sentencing proceeding [c]ourt The will decide at a whether those sen- separate

tences will be consecutive or concurrent the sentence to be for imposed purposeful-or-knowing being murder. Consecutive sentences one follows merely meaning is a add other, the and there continuum and the number. Concurrent you that are all to be served at one time. they sentences for the other convictions not should influence possible your regarding charge. the death decision of a sentence on the murder appropriateness . aggravating mitigating Your decision must be based and only factors upon present- ed the evidence. Despite having professed that “it does not know that it would years impose” imposed “the maximum number of that could be parole ineligibility,” and the maximum amount of pro- the court precisely ceeded to out maximum mete those sentences. After the verdict, sentence, the court imposed death the maximum including imprisonment twenty-five of extended term life with assault, years parole ineligibility aggravated of for on sexual each nonmerged they consecutively count and ordered that run to each serving. other and to the sentence that defendant had been If vacated, prison defendant’s death sentence were to be his sentence against Huggins plus for the crimes total two life would terms fifty-five years years eighty-two parole with and one half of ineligibility. prior That sentence would be consecutive to his thirty-year imprisonment sentence of life a parole with bar. Hence, reversed, if defendant’s death sentence were he would face years defendant, parole ineligibility. Obviously, a total of 112/6 246 arrest, prison die in if he forty of his would at the time

who was were not executed. jury have the that defendant

The trial court should informed noncapital aggregate maximum sentence the would receive jury keeping un- majority’s rationale convictions. The unsatisfactory terribly unfair to a defen- totally is informed facing a sentence.11 dant death penalty-phase juries repeatedly This has held that must Court decisions, legal sentencing their effect of be informed noncapital is including the sentences which defendant subject. juries Consequently, required the Court has that be sentences, prior Bey, 129 N.J. apprised defendants’ State v. (1992) denied, 1164, 115 III), (Bey A.2d 814 cert. U.S. 1131, 130 (1995), possible noncapital S.Ct. L. Ed.2d 1093 resulting capital prosecution, from Martini sentences the current I, supra, A.2d 1208. N.J. Loftin, supra, held that Court if eases, court,

in future based on evidence believes there prеsented that it will a sentence to be served consecutively any realistic likelihood impose in the does not return a death sentences, defendant’s event prior be so informed. believe that in most cases the courts sentence, should We is a “realistic that it will a consecutive impose will conclude there likelihood” rather in the of a non-death verdict. sentence than concurrent sentence event In those cases, will reach conclusion. However, necessarily every jury the court need not inform the whether a non-death sentence is to be likely consecutive or concurrent.

[146 677.] N.J. at 680A.2d 372, that, fully jury The in order for the to be rationale was Loftin sentencing options, about the results of it informed its various 11 Carolina, 154, In v. under Simmons South 512 U.S. S.Ct. my opinion, (1994), telling jury 2187, defendant, L. Ed.2d how much time he committing those addition to serve as a result of felonies in likely allegation murder, to rebut the State’s that he deserved the death was entitled he because committed the murder in the course various felonies. penalty Cf. (Handler, dissenting) (concluding 425, J., 146 N.J. at 680 A.2d 677 Loftin, supra, ineligibility mitigating should be admissible as evidence to rebut parole prior factor). aggravating murder whether likely consecutively. should know the sentences are to run Though the noncapital concerned whether sentence would Loftin sentence, consecutively prior run to a applies rationale to the contemporaneous-offense Although may context. the trial court not be what noncapital sure the exact sentences will for the be offenses, and, indeed, may usually, invariably— it if not often — impose an have idea about whether it will those sentences consecu- tively to the murder sentence. jury

The trial court should have possible told of the sen- tences that faced noncapital defendant on each count likelihood that those run consecutively sentences will the mur- count. apprised likely der That would have legal effect of its decision.

Though complied requirement by the trial court with first informing possible sentences, it failed to tell thé jury the impose likelihood that it would consecutive sentences. It justified by stating that decision it did not know if it “rational- ly” impose could consecutively. the sentences the trial Given imposition sentences, court’s eventual of maximum consecutive including aggravated an extended term for sexual assault —and its that, pointed post-penalty-phase and dramatic verdict statement juror, it had been a the court would have been the first to vote to advising execute defendant —the court’s for not so reasons jury appear disingenuous very unconvincing. and are It is naive accept protestation for this Court to the trial it court’s that was impose unsure of the it likelihood would consecutive sentences. imposition of consecutive sentences in this case a follows pattern imposing of trial capital courts consecutive sentences example case, In cases. similar to this the trial court in I, supra, 1208, imposed Martini 131 N.J. at 619 A .2d twenty-five consecutive extended term of a life with a sentence year parole disqualifier on the kidnapping defendant’s conviction. Loftin, supra, 146 N.J. at 680 A.2d the trial court imposed capital consecutively the defendant’s sentence to the life committing prior sentence he had received Because murder. imposed aggregate the maximum in this ease the trial court court, and, open expressed its against defendant sentence subjective that defendant should be executed because opinion capital cases, invariably the impose consecutive sentences courts it virtually impose certain that would consecutive sen- court was jury of its It should have informed the tences on defendant. intention. instructions, majority, finding in the trial court’s

The no error writes: guidelines. sentencing Martini It the The trial court followed explained (omitting for each of reference to extended terms for the offenses possible options offenders), he would decide later whether those sentences that impose

repeat or and that the sentences on other convictions consecutively, concurrently potential death. should not affect their determinations life or [Ante 496.] at at 716 A.2d I merely jury of While Martini required that the court inform the possible and that the decision about the actual sentences and whether those sentences will be consecutive is for sentences considered, rationale of the court and is not be Loftin jury requires impose that trial court tell that it will there is a reasonable likelihood that it consecutive sentences when But, jury do that it will so. the trial court did inform the impose consecutive sentences on defendant. would See harmless. trial court’s omission cannot be considered (Handler, J., Loftin, supra, 146 N.J. 680 A .2d dissent- (concluding jury ing) trial court’s failure to inform of defendant’s error). likely parole ineligibility Although, in his was reversible summation, penalty-phase repeatedly defense counsel told injection that its choice lethal for “incarcer[ation] was between life,” judge’s his to the instruction the rest of reference was thirty years and life for the defendant would receive between argued murder conviction. Counsel never defen- noncapital dant would receive consecutive sentences “agree[s] judges, considering counts. The Court that most trial convicted, type of which defendant was would find crimes that some of the non-death sentences would be ‘realistic likelihood’ 30-year parole consecutive to the disqualifier made for murder.” 198, Nevertheless, at at Ante 716 A.2d 496. it finds “that defen jury gravity dant’s could not have the misunderstood of the non- capital sentences defendant would have faced.” Ante at at A.2d 496. We in guess jury cannot this context about what the understood. Neither counsel’s summation nor the trial court’s prejudice instructions cure the that defendant suffered from the absence of a clear instruction the trial court to indicate that spend defendant would the of life prison rest his if not sen tenced to death.

Moreover,the by instructing jury disregard court erred to noncapital Nelson, defendant’s sentences. See State v. 155 N.J. (1998). 487, 504-06, 715 A.2d The error was not harm- (Handler, J., See dissenting). less. id. 715 A.2d at 289-90 This Court should reverse defendant’s death to sentence due jury trial court’s inform likely impose failure to that it would noncapital give consecutive sentences defendant and defendant prospect leaving prison no of ever alive. The trial court’s errone- ously instructing jury disregard noncapital to defendant’s sentence also mandates reversal.

VII Significant and prosecution irremediable errors infected this and tainted defendant’s convictions and death sentence. The response pretrial publicity court’s muted to the and midtrial is the gravest of the errors. exposed varying degrees

Members of the venire were of vicious, inflammatory pretrial publicity, many which affected criti- case, cal features of the such as the cross-racial nature allegedly along crime and the fact that the crime had occurred further, robbery, a kidnapping, rape; with and it implicated innocence, important presumption concerns such as the defendant, guilt justification ultimate and the death steps The trial any preju- sentence. court took minimal to cure arising pretrial publicity. Despite ubiquity dice from the County, change the court refused to venue publicity Mercer Burlington County. merely impaneled from

and cursory too regarding pretrial publicity voir was far court’s dire injurious publicity had on the venire. effects the uncover the change In addition to the trial court’s failure to venue exposure pretrial searching a full voir dire on conduct utterly serious coun- publicity, the court failed take measures to exposure to publicity, teract midtrial which included unsubstan- prior allegation that had committed a murder. tiated defendant exposure prejudicial publicity to midtrial Defendant’s intense and by impartial failing In that jury. an to remediate thwarted a jury. De- publicity, deprived court defendant of an unbiased the right by impartial jury guided judged had a to be an fendant by arising the the solely the evidence within confines of courtroom. seriously right impaired by a combination of the Trento- This was unwillingness coun- nian’s death crusade and the trial court’s to recognizing its teract that crusade even after existence. That fair trial confluence of circumstances denied defendant a very impugns of convictions and death foundation his sentence. Further, death-qualification the trial court’s voir dire had sub- highly shortcomings. repeatedly, through court lead- stantial The jurors they ing questions, agreeing coached into that could follow often, delving law. The trial court without further into what believed, really wildly jurors jurors allowed to make contradic- tory penalty death auto- statements about whether the should be totally premeditated matic for murders. The court almost shut venireper- first Except out counsel. for the voir dire of the seven sons, questions directly. counsel was not allowed ask Morе- over, specific problematic even if counsel informed the court of by venireperson, further responses court almost never asked questions response general, only in those concerns. questions suggested by then asked counsel that were the forgotten questions court’s standard it had to ask. This incapable ensuring voir that the feeble dire was who capital jury. qualified to sit on a sentenced defendant die were inadequate death-qualification by exacerbated was court’s venirepersons sufficiently failure to voir dire the in respect of the pervaded racial overtones the case. The court did not and, appreciate pervasive role in accordingly, of race this case dire conducted shallow voir that was to root unable out venire- persons’ or prejudices. overt subtle racial The trial court’s defi- requires voir cient dire reversal of defendant’s convictions and death sentence. capital by

This case jury. should have been tried a bifurcated length record, Given the seriousness and of defendant’s the simi- larity trial, the record to some alleged offenses testify defendant’s indication that he if wished his record were penalty-phase jury, subjec- shielded from the and the intense and phase, penalty tive nature of the the trial court’s decision not to clearly bifurcate the was abuse discretion. The error patent view of the trial court’s determination that this longer Court’s decision Erazo was no valid and could be noted, disregarded. As this has repeatedly Court stated precisely type bifurcation is favored in this of case. con- When compelling bifurcation, however, fronted with circumstances for misapplied determining the trial court the law that Erazo was longer controlling authority. ruling unduly no That burdened right testify. misinterpretation defendant’s to The court’s con- unacceptable testifying, fronted defendant with an choice of and deliberations, poisoning jury’s penalty-phase hence the or not testifying, rebutting and hence not the State’s case. Because testimony death-eligibili- defendant’s would have cast doubt on his ty, jury requires the trial court’s refusal to bifurcate the reversal of his death sentence. prejudicial guilt-phase and

Inadmissible evidence was allowed to pour penalty phase. over the Consequently, into the absence of penalty-phase informing specific guilt- instructions the that phase penalty phase evidence was inadmissible in the mandates Finally, reversal of defendant’s sentence. the court’s failure to charge impose that it intended consecutive sentences defen- convictions, noncapital that would have the sentence

dant for requires prison, the of his life in spend rest forced defendant of the death sentence. reversal inconsistency, chronic contradic- exemplifies decision the

This tions, permeate capital- that surround and our and confusion Worse, regres- the jurisprudence. the decision illustrates murder again, capital-punishment jurisprudence. Time and sion in salutary pronounced principles sound and Court has fashioned and guide prosecution capital-murder cases. to structure and protections required singular that are principles Those reflect the They indispens- is on trial his life. are when a defendant for assurance, assuming humanly for the such assurance is able basis sufficiently possible, capital that murder is fair under for generate it level of constitutional standards and that will that society ejects demands it comfort and confidence that and before Yet, again, to death. time and in succes- will sentence a criminal cases, repeats nonetheless retreats from those sive the Court but by refusing apply compelling situations principles them that egregious giving promul- are often more than those rise gation principles place. in the first

Perhaps jurisprudence inconstant mirrors the intense am- this engendered by capital punishment that the con- bivalence and Court, in troversy pervades its administration. But the our structure, responsible judicial is the institution for constitutional assuring prosecution capital comport eases will with preserving legal regime ‍​‌​‌‌​​‌​‌​‌‌​​‌​‌‌​​​​​​​​​​‌​‌​​​​​‌‌​​​‌​​‌​‌‍constitutional standards and envi- by our The Court cannot allow itself to sioned Constitution. be legal capital dilemmas surround conflicted social resolute, consistent, punishment. It must and firm its be case, disposition capital Regrettably, it causes. in this wa- vers. For Justice PORITZ Justices affirmance —Chief

POLLOCK, O’HERN and GARIBALDI —4. part: For reversal part STEIN and affirmance —Justices COLEMAN —2.

For reversal and vacating HANDLER —1. —Justice

Case Details

Case Name: State v. Harris

Court Name: Supreme Court of New Jersey

Date Published: Jul 30, 1998

Citation: 716 A.2d 458

Court Abbreviation: N.J.