State v. Harvey

A.2d 483 PLAINTIFF-RESPONDENT, JERSEY, NEW STATE OF HARVEY, DEFENDANT-APPELLANT. NATHANIEL 1990. Argued 1990 Decided October March Kopelson Westreich, Edward A. and D. Designated Robert Counsel, argued (Thomas appellant Smith, Jr., cause for S. Acting Defender, attorney). Public General, Gochman, Attorney argued Deputy Lisa Sarnoff (Robert Attorney Tufo, respondent for J. Del General the cause attorney). Jersey, New opinion was The of the Court delivered CLIFFORD, J.

Defendant, Harvey, capital-murder from a appeals Nathaniel jury trial court’s conviction and death sentence. Because phase comply with our later guilt instructions did not at the Gerald, A. 2d 792 we holding in a new trial. and remand for reverse conviction I —A— on appear for work June Schnaps After Irene failed apartment her at the Hunter’s Glen colleague went answered, he entered When no one complex Plainsboro. Schnaps dead on the and through the unlocked door found facial severe head and had suffered bedroom floor. She wounds. LaSalle empty box a Seiko watch found an for empty camera dressing bedroom. An box table in the closet, open purse atop vanity an sat

in the bearing a print bloody A had a sneaker pillowcase bathroom. signs no There were design the letters “PON.” chevron but unlocked. sliding glass was closed entry; door forced autopsy. He concluded performed an Dr. Martin Shuster fractures, a frac- skull Schnaps suffered numerous had Dr. deep laceration on her skull. Shuster jaw, and a tured with a struck least fifteen times had been she believed an had neck for hour object. applied to her Pressure blunt a brief interval opinion, In Dr. Shuster’s caused contusions. could not determine and death. He separated the first blow had which blows been fatal and which had been inflicted after the victim’s death.

—B— On October suspi- arrested defendant on kidnapping burglary. Following cion of interroga- and several days, tions over the next three defendant admitted that he had Schnaps. killed Irene gone He said that June 16 he had apartment complex. the Hunter’s Glen Entering Schnaps’ apartment through door, patio an unlocked he went into the bedroom, where he took a watch and jewelry some from the Schnaps, dresser. sleeping, who had been up woke and nose, punched causing him the it to bleed. then Defendant struck her in the object, head with a knocking “hammer-like” ground. her to the Afraid that the blood from his nose had sheets, replaced stained the he them with clean ones from closet. He then retrieved a towel from wiped the bathroom and the blood of Schnaps’ body. collecting sheets, off After the bed towel, watch, camera, a pieces jewelry, and other he apartment. left the

juryA knowing convicted defendant of the purposeful and murder, murder of Irene Schnaps, felony first-degree robbery, second-degree burglary. Following pro- a penalty-phase ceeding conviction, capital-murder on the trial court sen- tenced defendant to death.

II We first consider defendant’s contention that the trial jury court’s failure to separately instruct for the crimes of (intentional knowingly purposely causing or murder) death knowingly purposely or causing bodily serious injury result ing murder) (serious-bodily-injury death requires reversal of Gerald, his In supra, conviction. 113 N.J. at 2d person A. we held that who convicted serious-bod ily-injury 2C:11-3(a)(1) (2) murder under may N.J.S.A. or not be basis provides If the evidence a rational sentenced to death. either intentional or jury to convict a defendant of for a murder, instruct the the trial court “must serious-bodily-injury which, findings [either], if of those forms the jury specify to 194, 209, 574 Coyle, 119 for a conviction.” State v. basis (1990). .2d 951 A finding of arguing that there no rational basis for a

In was murder, medical points the State to the serious-bodily-injury had hit fifteen times suggesting that the victim been evidence that her neck had been in the head with a blunt instrument and jaw Defen- squeezed for an hour. The victim’s was broken. object.” “hammer-like that he had hit her with a dant confessed finding course, support jury repeated such blows can Of here, However, pre- in the issue as other intentional murder. cases, jury’s the determina- capital is whether was Gerald distinguish between intentional jury was not asked to tion. The murder. Its verdict did not serious-bodily-injury murder and apply case. it found to to this indicate which of the two intentional might probable jury that the had Although it seem mind, a rational basis question is whether there is murder in the distinguish to jury, if instructed in the evidence on which two, serious-bodily-injury might return a verdict of between the fact, must is, jury, the finder of If there then the murder. appellate An court cannot. decide the matter. to initial conceded that defendant’s intent

The State that he confessed burglary, not murder. Defendant commit in once, being hit only response to had struck the victim may have intend suggests that defendant nose. That evidence victim, too that not to kill her. We note only injure to ed the number issue that arguing purposes for Gerald while an intention unquestionably inflicted establishes of blows purposes that the first kill, penalty-phase claims for pain death injure inflict before intended to and blows were (discus .2dat 496 kill. 581 A rather than to See infra factor). c(4)(c) aggravating sion of jury reject pathologist’s testimony was free to accept the other evidence that indicated a lack of murderous intent. (Arriagas), See State v. Crisantos 102 N.J. (1986) (a .2d jury power disregard 508 A has “the even overwhelming proof”). merely a This was not one-issue case requiring jury determine whether defendant had fact the one who had intentionally-fatal been inflicted the perpetrator clearly blows. The mental state of the was also jury issue here. The just trial court instructed the on murder, capital felony-murder, aggravated but also on man then, slaughter, manslaughter. Obviously, the trial court jury rationally believed the evidence would allow the to convict acquitting capital one of those counts while defendant on jury murder. A rational could have concluded that defendant inflicted the fatal blows not intended to kill. The but.had determination of whether defendant had the mens rea neces sary permit put to the to him quintessentially to death is system juries. one that our of law entrusts to All mental states developed related to the law of homicide long were over a period history purpose for the distinguishing capital Michael, murders from others. Wechsler & “A Rationale of the I,” (1937). of Homicide Determining Law 37 Colum.L.Rev. 701 special a defendant’s mental state jury, is the function of the not of this Court. provided

The record “a jury rational basis for the to find that the defendant intended to cause bodily inju serious ry.” Coyle, supra, 209, State v. 119 at N.J. 574 A .2d 951. understandably Because the trial court anticipate failed to jury and did not distinguish Gerald instruct the to that offense murder, from intentional capital-murder we reverse defendant’s conviction.

Ill alleged We turn now to those might again errors that arise retrial.

—A— suppressed have argues that the trial court should Defendant his that on five occasions he asserted his confession. He claims silent, police “scrupulously did not right to remain but that the Michigan Mosley, his See U.S. honor” invocations. (1975). 103-04, Defen L.Ed.2d S.Ct. police bright-line test dant contends that violated (1986),by 2d adopted Hartley, 511 A. 80 re-informing rights him of his after each invoca Miranda right. alleges He that his confession was not tion of his also voluntary. a.m. on October The police

-1- arrested defendant at about 7:30 later, the they the station an hour 1985. When reached defendant, warnings then police read the Miranda who him police question did not signed rights form. The morning. afternoon, Sergeant and Detective Swan-

At 3:37 that Hibbs They again gave Mi- began interrogating defendant. hart defendant, rights form. warnings signed who another randa defendant, police from eliciting personal After information they p.m. 4:10 asking him other crimes. At about started about Schnaps murder. Defendant denied him questioned about think, he for time to began cry, and “asked responsibility, * * questioning ceased by himself wanted time later Forty his cell. minutes police returned defendant to interrogation room. brought defendant back to the rights him did not “reminded” of his but way an officer On asked warnings. police When the issue the formal Miranda murder, again began crying Schnaps he defendant about the anything I want to talk to say I talk or else and said: “[BJefore Thomas.” my mother-in-law Pearl spoke an hour later and with arrived at the station Thomas p.m. police in his cell. At 7:30 the for five minutes defendant interrogation They gave into the room. defendant back took warnings police reminders. When the him no Miranda or again Schnaps p.m., murder at 8:00 defendant broached the “just anything.” that he didn’t do began cry to and said officers, ended, questioning According one of the the then to request, thing.” it was a mutual request “not at his or our Defendant was returned to his cell. speak Detec- minutes later defendant asked to with

Fifteen of his alone. “reminded” defendant tive Swanhart Swanhart did rights and talked to him for an hour and a half. Defendant killing Schnaps he did confess to other not admit Irene but crimes. midnight prosecutor’s a detective from the office

Around orally spoke defendant the murder. He advised defen- about only couple rights. dant of his The interview lasted a Miranda minutes, give and defendant did not a statement. morning, two officers took defendant next October for a one-hour car ride to the scenes of the crimes he had warnings given. night admitted the before. No Miranda were arraignment day At defendant’s for offenses unrelated murder, municipal court did not ask him if Schnaps to the the attorney. he had or desired an That afternoon defendant was rights During rights signed read his a form. Miranda interrogation to searches of his room and car. he consented watch, up a later The search of the car turned Seiko LaSalle having belonged Schnaps’ deceased husband. identified as holding in night police That interviewed defendant room rights, jail. reading at the After defendant his Miranda they told him that had found the watch in his car. himself, said, oh, “responded Defendant as if he not talkin’ car, no, no, again he in the ear.” Defendant denied said Schnaps involvement murder. arraigned Superi- day,

The next defendant was October Schnaps. 10:00 that or Court for the murder of At about rights, morning, reissuing defendant his Miranda after questioning Schnaps him murder. police started about a.m., 11:00 Shortly after defendant informed the officers that “he tell would about the murder but he first wanted to [them] speak Questioning ceased, to his father.” arrangements and transport were made to jail. defendant’s father to the Defen- dant had lunch and talked to the “things officers about general.” p.m. At 2:15 prosecutor’s defendant went to the office, where spoke he with his father for fifteen minutes returning before jail. to p.m.

At interrogation 2:30 resumed without new Miranda warnings or reminders. having Defendant confessed killed Schnaps. police The prosecutor’s took him to the back office for a formal statement. read him his Miranda they When rights, defendant attorney. Questioning demanded an ceased.

—2— right Defendant claims that he asserted his to silence four times on days October two before his confession: at p.m. interrogation the 3:30 when he asked for “time to think * * * himself”; p.m. interrogation at the 5:00 when he asked mother-in-law; speak to his p.m. at 7:00 he when “asked for time”; more p.m. interrogation and at the 7:30 began when he cry “just and said that he didn’t anything.” do suppress statement that defendant seeks to is his intervening confession October 30. Because of the events alleged between the invocations on 28 and the October confes sion, we need not decide whether actually defendant invoked his right to remain silent police scrupulously and whether the alleged requests. honored those if Even did not scrupulously alleged honor defendant’s right invocations of his silence, the confession “sufficiently independent to dissi Johnson, pate the taint of conduct.” illegal their (1990). 573 A.2d 909 The determination of whether a confession was the “fruit” of prior illegal police conduct involves three factors: challenged

(1) illegal conduct between the the temporal proximity (3) flagrancy (2) intervening circumstances; evidence; the presence [Ibid.] misconduct. police purpose First, helps factors his confession None of those defendant. alleged “temporally proximate” to the violations—it was illegal days prolonged follow a later —nor did it occurred two (repeated 654-55, constitu 573 A .2d909 detention. See id. de during illegal preceded detention tional violations ten-hour escape). fendant’s

Second, intervening separat circumstances a number the At alleged the 28 from confession. ed violations October invocation, 28, alleged p.m. after the fourth 8:15 on October speak Detective Swanhart alone. defendant asked to with warnings necessary if accused Fresh are not the Miranda invoking right after the to silence. initiates conversation State Moreover, Fuller, 75, (1990). defen v. 118 N.J. A .2d rights of his at that time as well as later dant was reminded day arraigned munici evening. The next he was before a warnings receiving After new Miranda pal judge. court afternoon, rights evening That he read signed a form. was he rights following day, he was ar again. his The October warnings raigned time received Miranda a second again.

Finally, police no coercion or misconduct. there is evidence of designed interrogations to wear down There were no extended right if to Even defendant had invoked his defendant’s will. possible police’s taint any remain silent on October from alleged scrupulously his invocations was suffi- failure to honor ciently dissipated. allegedly right to fifth time defendant invoked his he asked to talk to his

remain silent was on October 30 when he Although that would talk about father. defendant indicated resumed, a when there was Schnaps questioning murder Approximately three- significant interrogation. in the break inter- passed before the resumed the and-one-half hours rogation. interruption But what makes the significant its is not length so much as its request nature. The qualita here was tively different from the one in v. Bey, State (1988) II), (Bey 548 A.2d “requested which the defendant permission to lay down and happened.” to think about what The Court likened that to situation one in which a defendant drink, asks for to “something facilities, eat or the use of toilet * * opportunity stand to and stretch Ibid. Defen [or] request respite dant’s here was satisfy not for brief to physical needs. he asking, Instead days after three for custody, family chance consult with a close member. request Defendant’s is similar Hartley, one in supra, 103 N.J. at A.2d which the defendant told police, “I don’t I believe want make a statement at this In time.” suggested both cases the defendant that he would police talk to the request later. to an interroga- terminate “[A] ” tion be ambiguous.’ must ‘however honored Bey, 112 64, 45, (1988) I) (Bey 548 A.2d 846 (quoting v. 278, Kennedy, 288, (1984)). 97 N.J. Certainly A.2d the request here was more equivocal no than one in Bey the I which, according police, to the the defendant had “indicated he * * * * * did not want to talk about it Ibid. Defendant’s during days interrogation conduct three his refusal to questions answer Schnaps about the murder likewise indicated did that he not “to talk want it.” about State, This case also Md.App. 13, resembles Law A.2d police which the questioning were the lay hospital wounded defendant as he handcuffed his bed. police The defendant told the any that “he didn’t want talk more he until was further at treated.” Id. 318 A.2d at 872 deleted). (emphasis Despite request, police his the continued to question him. ensuing The court held the that defendant’s Although statement was inadmissible. the obvious difference from case wounded, this is that here defendant was not the words, court’s decision Law rested on the defendant’s not on surrounding Law, circumstances. In both this case talk, only after a but they that would indicated defendants condition was met. In Law the had been subsequent condition meeting a with the condition was Here further treatment. to talk later does implied intent father. defendant’s here, fact, and as we find found in Law change as the court interrogation. sought to terminate the that defendant reissue Miranda police’s failure to importance of the The' clearly his father is shown had met warnings after defendant finally give did him the police happened when by what orally, authori- had confessed warnings. After defendant seeking warnings to take before gave him new Miranda ties immediately an attor- demanded Deféndant formal statement. writing. It is no reduced to any statement could be ney before requested have an imagine defendant would stretch to they first warnings when police given him attorney had the met with his father. him after he had interrogated 252, 511 supra, 103 N.J. Hartley, The mandate of State v. an seeks to terminate a defendant is clear. When A. 2d give minimum fresh Mi must at a interrogation, recommencing Id. at questioning. warnings before randa warnings prior to the new Any made 80. statement 511 A.2d although our pause to observe that suppressed. We must be acknowledges readily dissenting colleague Justice Stein questioning,” post at right cut off his “defendant asserted contrary to he 2d at nevertheless 581 A. concludes— rule, “bright line” see Hartley’s language of unmistakable interroga resumption of 2d 80—that “the 511 A. 103 N.J. police the a failure did not constitute tion [thereafter] right silent.” Post to remain honor’ defendant’s ‘scrupulously right his defendant exercised 444, 501. Either 581 A. 2d at at (as conclude), he did not Justice or (as Stein we and Justice Hartley concludes). did, question If he then without O’Hern warnings the before readministering of Miranda requires the interrogation. resumption of

421 Hartley apply though We rule even that rule was an interrogation in nounced after the this case had occurred. Retroactivity ques not a is consideration here. “The threshold any retroactivity tion in decision is a whether new rule law Burstein, 394, been announced.” State v. 85 N.J. actually has 403, (1981). retroactivity 427 A. 2d 525 The issue of “never * * Lark, State v. N.J. arises absent a new rule of law *.” 117 344, 331, (1989) (Clifford, J., concurring 567 A.2d 197 in judg ment).

Hartley did not announce a new rule of law. It was “not a past, simple clear princi break with but a extension of the * * * ple holding of cases State must honor ‘a defen request ambiguous interroga dant’s terminate —however —to ” II, Bey supra, 213, (Handler, at N.J. tion.’ 112 548 A.2d 887 Kennedy, v. J., dissenting) N.J. (quoting 97 478 Hartley (1984)). A.2d 723 We said that our rule in “sound was Jersey aas matter of New common law consistent with [and] * * State v. spirit Supreme Court’s decisions 268, Hartley, supra, 103 N.J. at 511 A. 2d 80. The foundation decision Michigan Mosley,supra, v. 423 U.S. our 96 313, in S.Ct. Supreme 46 L.Ed.2d which the Court held that “scrupulously had honored” the defendant’s decision they him approach to remain silent because did not for two hours, they gave Miranda warnings, him fresh different him, questioned questioning officer and the concerned a differ custody. ent offense from one for which he was in Al though Supreme Court did not indicate which of those finding police “scrupulous elements are essential for a that the rights, furnishing ly suspect’s honored” a we held that the Hartley, fresh Miranda warnings “indispensable.” supra, 103 A.2d 80. conclusion, reaching

In we on the decisions of relied See, e.g., Wilson v. other courts as well as academic literature. States, (D.C.1982) (all Mosley United 444 A.2d factors People Young, reinterrogation); required are to validate (1983) (recess Ill.App.3d Ill.Dec. N.E.2d 422 warnings prerequisite are a minimum

and fresh Miranda Kamisar, reinterrogation); “The Edwards and Bradshaw Away,” Taketh 5 The The Court Giveth and Court Cases: Developments 153 Supreme Trends and 1982-83 Court: (1984) (fresh warnings necessary renewing are for Miranda silent). questioning suspect after has indicated desire to remain law, Hartley did not announce a new rule of retroac- Because Any who had not exhausted tivity is not an issue. defendant appeals Hartley decided could have asserted a direct when opinion. give Because the did not claim based on that warnings defendant fresh Miranda after he had indicated his silent, Hartley requires ensuing to remain that desire suppressed. confession be

Moreover, law, if Hartley even did create new rule of Supreme apply it still here under either the Court’s old would analysis retroactivity procedure criminal rules or its of new pronouncement retroactivity more recent v. Ken Griffith 708, (1987). tucky, 479 107 93 L.Ed.2d 649 U.S. S.Ct. analysis, Supreme its former Court held that Mi Under interrogations place applies randa itself that took before if trial did that rule was announced not commence until case), (precisely sequence in this after the Miranda decision Tucker, 433, 447, 2357, 2365, 94 Michigan see v. 417 U.S. S. Ct. (1974), 41 if the case was tried L.Ed.2d but not before decision, 719, 733, Jersey, 384 that Johnson v. New U.S. (1966). S.Ct. L.Ed.2d obvious similarity between the nature and effect of Miranda Hart suggests application ley Hartley that the should be no less broad.

Turning Supreme retroactivity most recent to the Court’s correctly pronouncements, we note first that Justice Stein “ out, points post at the extent at 581 A.2d ‘[t]o criminal-proce retroactivity issues arise in the context of implicating rights guaranteed dure decisions under federal constitution, Supreme precedents control United States Court ” scope retroactivity,’ (citing Lark, supra, 567 A. 2d 197 and that under Griffith 314, Kentucky, 708, 479 U.S. 107 S.Ct. 93 L.Ed.2d 649 “a new rule for the conduct of prosecutions criminal is to be applied retroactively cases, federal, to all state or pending on yet final, direct review or not exception with no for cases in which the new rule constitutes a ‘clear break’ past.” with the 328, 716, 479 U.S. at 661; at S.Ct. 93 L.Ed.2d at see State Stever, 543, 548-53, v. 107 N.J. (1987) (discussing A.2d 408 Supreme Court’s development of retroactivity principles). then, Clearly, mandates adherence analy to a Hartley Griffith sis in this case. Justice Stein would application avoid of Grif principle, however, sound ground on the Hartley that fith’s was not based “primarily” on law, post federal-constitutional at 425, 581 A .2d 491. “primarily” Whatever means in the fore context, going distinguished our colleague quite wrong. First, it is abundantly clear Hartley grounded at least as much on the fifth amendment to the United States Constitution as it was on New Jersey’s privilege, common-law codified in our Evidence Rules. No fewer than sixteen times opinion does the refer specifically to its “constitutional” basis. For example, emphasized we at the Hartley outset of our decision was founded not on state law but “on our under standing of the Supreme United States precedents Court in this 256, area.” State Hartley, supra, 103 N.J. at 511 A.2d 80. And: failure to readminister warnings Miranda “[T]he was a obligation violation of scrupulously to honor Hartley’s as right silence, serted and therefore amounted to a violation of defendant’s fifth-amendment right and state common-law not to compelled be against 278, to be a witness himself.” Id. at 2d any A. 80. And: statement obtained in violation of Hart “bright-line” ley’s rule is “unconstitutionally compelled, and inadmissible, hence having been obtained in violation of the fifth amendment and right of the state against common-law self-incrimination.” Id. at 511 A .2d 80. finally: And scrupulously failure Hartley’s honor previously-in- “[T]he yoked magni- right to a of constitutional silence was violation * * 80. *.” Id. at 511 A.2d tude

Second, own one need look no further than Justice Stein’s I,Bey supra, 548 A.2d opinion for the Court Hartley: basis of confirmation of the federal-constitutional for * * * analysis our whether the Hartley “As in we base [of question Bey’s right to cut off scrupulously had honored and our State common- ing] on both federal constitutional law at privilege against self-incrimination.” Id. 548 A.2d law 80). 511 A.2d And: (citing Hartley, supra, 103 N.J. scrupulously the failure to honor “Hartley held that where right questioning cut off results from the absence suspect’s resuming questioning, the warnings before of fresh Miranda suspect’s subsequent inculpatory state illegality renders the compelled as a matter of law.” Id. unconstitutionally ment added). (emphasis 548 A. 2d 846 interrogation May in Bey too that in the occurred Note suppress Bey’s confes and the trial court heard the motion to July in year. Hartley late in that same This Court decided sion later, August in In years I more than two 1988. Bey 1986 and simply applied to a case that had been on Bey Hartley I we 58-74, appeal Hartley was decided. See id. at direct when Likewise, II, 2d Bey supra, 548 A. A. 2d 846. engaged Hartley this in a full discussion of the Court 134-43, 887, prompting principle, see id. at 548 A. 2d two admissibility of the defendant’s dissents on the issue of the 184-88, Hartley analysis, under a see id. at 548 A. 2d confession necessity any question or rule on There was no to discuss 887. assumed, again retroactivity, the Court Hartley’s because correctly, applicability. its No was it an issue there than more cases, appeal Hartley applied Bey And if in the on it is here. decided, when, here, applies it as Hartley when a fortiori opinion published. began Hartley the trial after the had been (“a impact Hartley’s overestimates Finally, Justice Stein applications,” post at post-conviction-relief multitude of this, 500), such as which were tried after on cases 581 A. 2d at decided. would limit retroactive had Hartley been Griffith appeal when pipeline” “in the application to cases —those decided, point had been Hartley in which the Hartley was gone final that had would not affect cases raised—and minimal; suspect We the number Hartley. decision before criminal-jus more than the any event the burden is not to bear. system tice should be asked introduction of Hartley rule bars the We hold need not consider defen- confession at retrial. We defendant’s involuntary. claim that his confession was dant’s —B— prose made objects to two statements Defendant describing murder of After during opening. his cutor jury: Schnaps, prosecutor told for Nathaniel trial. It’s can this is a see, important So, you very important to each and it’s victim, It’s for the family important Harvey. important citizen. and every Schnaps “was a recent prosecutor Later the observed * * * previously.” widow, having died six weeks her husband They atten improper. drew prosecutor’s comments were charged to the to the crime but to issues relevant tion not her recent family. His reference to victim and her status of the jury” designed impassion “plainly widowhood was “ determining jury nothing that would aid ‘contained] ” Hightower, guilt or innocence.’ State the defendant’s . Williams, (1990) (quoting State 577 A.2d N.J (1988)). prosecu retrial the On 550 A.2d 113 N.J. making such comments. must refrain from tor

—C— testimony of four objections to Defendant makes several expert witnesses. of the State’s

—1— First, argues defendant that the trial court should have qualified Lovejoy Dr. Claude expert Owen as an testify bloody print about the sneaker pillowcase. found on the Dr. Lovejoy, professor a at Kent University, received a doc- torate in biological anthropology, according which to him is “the study function, of human form and evolution of the human species, human variation involving anatomy, genetics, essential- ly biology the normal of man.” specialty His is “the form and function and biomechanics of the lower limb.” He claims to be able estimate the person stature of a from the size his or her shoes.

In October 1985 the sent Dr. Lovejoy four photographs pillowcase containing print. a sneaker having After pictures, examined the Lovejoy Dr. concluded that bloody print had been left either a male of “short stature” or a female “average to medium tall stature.” The police then Lovejoy sent Dr. pillowcase the actual pairs Pony and three hightop sneakers, S-58, S-59, marked in S-60, evidence as two they of which belonged said to defendant’s son. The professor immediately decided neither S-59 nor had that S-60 left print, he but was unsure S-58. He about a then made print pillowcase with S-58 on a pillow. stuffed with a Compar- ing print to the one Schnaps’ pillowcase, Dr. Lovejoy concluded that “improbable” it was print. S-58 had left the Pony Company Sneaker Lovejoy thirty-one sent Dr. pairs of sneakers from manufacturing the same run S-58. The ranged sneakers 11; in size 6V2, from 7 to none was or 7V2. The doctor took three measurements of the sole of each sneak- plugged er and them into “digitizer” his to determine the size of the shoe that print: had left the * * * what we did was we Okay, took each of the individual shoes in the Pony just measured each of the sample, dimensions that I’ve talked about, those put along into a data into a base, with shoe size and computer, determined using between those

relationship of statistical variety techniques. of correlation and if one a set of those is called linear puts The simplest object it from the same into the two sets of dimensions dimensions, computer give degree for of between it will them, you relationship will determine certain limits of one metric to the other with of predict example, ability strength of that that’s what we mean correlation and and by reliability through varying minus one zero to from relationship expressed physical being being a minus one one a relationship, one perfect positive plus plus negative relationship. perfect the sneaker analysis, Lovejoy Dr. concluded that Based on that 6V2,plus or a man’s size print had made the was either that size, The confidence or a woman’s size 8 to 8V2. minus one-half 95%, i.e., would be was the conclusion limit of that conclusion Deciding that size of the time. accurate within a one-half 95% stripes on differ- lowtop sneakers have decorative hightop and sole, that the sneaker the outer he concluded portions ent hightop. awas for the admission requirements

There are three testimony: expert subject (1) the ken a matter that is beyond must concern the intended testimony (2) average juror; of the art such to must be at a state the field testified of the (3) and the witness reliable; could be

that an sufficiently expert’s testimony intended to offer testimony. must have sufficient expertise (1984).] 97 N.J. A.2d 364 v. [State Kelly, alleged to have print and the shoe Comparison a shoe between testimony. require expert print does not made that 263, 293-94, (1990). Nor is the Johnson, A.2d 834 feet the people to have smaller tend proposition shorter Dr. improper to use testimony. It would be expert stuff testimony. How expertise to such Lovejoy’s professed bolster sought establish with ever, Lovejoy Dr. extent that to the height of the shoe and the reliability the size of the scientific testimony proper. expert print, left the person that admission requirement for the Concerning the second ways, testimony, there are three Lovejoy’s expert of Dr. “gener research, prove the evidence’s relatively new field of reliability”: thereby its acceptance and al among general those in the (1) as to the acceptance, by expert testimony based his or witness on which the expert proffered profession, premises indicating legal writings (2) that the scientific her authoritative analysis; underlying scientific community premises testimony; accepts proffered (3) by-judicial gained indicate have opinions expert’s premises general [State N.J. 97 Kelly, acceptance. 478 A.2d supra, 364.] satisfy The State did not either the first or second alterna- provide tive. It did not anyone evidence that in the scientific community Lovejoy other than Dr. himself vouches for his methods. judicial opinions

Nor do Lovejoy’s indicate that Dr. methods gained general have In acceptance. Prudden, N.J.Super. (App.Div.1986), 515 A.2d 1260 the same trial presided proceedings qualified court that over these had Dr. Lovejoy expert testify an print. Reversing as to about a sock grounds, Appellate on other expressed Division reservations reliability 617-18, about Lovejoy’s of Dr. methods. Id. at Lovejoy 515 A. 2d 1260. Dr. also testified in United States v. Ferri, (3d Cir.1985), F.2d denied, cert. 476 U.S. 2d S.Ct. L.Ed. 983 to testimony rebut the government’s footprint expert, compared who had one footprints defendant’s with impressions inside shoes found at the crime scene and inside shoes from seized the defendants’ Ferri, Notwithstanding residences. Prudden and we are un any aware of cases in expert’s testimony which an involved the comparison scientific prints of sneaker with stature. We note glaring also several weaknesses that east on doubt reliability Lovejoy's of Dr. conclusions. He admitted that nothing he knew about sneaker or manufacturing about the extent of variations from manufacturer or manufacturer plant plant. According defendant, Pony representative a reported print that the sneaker had not even aby been made Pony. conducting analysis, In his Lovejoy Dr. used sneakers production from the same series as that of S-58. Yet he had already print. determined that S-58 not had made Nor any was showing thirty-one there that the pairs he measured representative production Moreover, were run. although he concluded within a confidence limit 95% that the shoe that 6V2, from every shoe he examined print was size left the had at least a size 7. production run was methodology not of sufficient Lovejoy’s Dr. Because requirement the third reliability, we need not consider scientific On retrial expertise in the field. he had sufficient of whether testify expert. as an Lovejoy may Dr. —2— chemist, Mozer, testified as an a forensic

Theodore for the New comparison. Mozer has worked expert on hair principal forensic years over fifteen Jersey State Police for of human hairs assault specializing analysis in the chemist biology and took a B.S. in He received and homicide cases. courses in the chemistry. Mozer also took graduate courses in Virginia. A Academy hair at the F.B.I. microscopy of human Comparison, Hair the International Committee member of 1,000 cases in over criminal samples hair Mozer has examined fifty comparison between expert in hair as an and has testified times. and one-hundred scene, found at the murder analyzing seventy-five hairs

After person’s pubic was a that one of them black Mozer determined Comparing a hair hair. Schnaps’ that did not match hair defendant, the hair had concluded that Mozer sample from who individual or from either from defendant come “[a]nother microscopic characteristics.” same had [the] that defendant, qualified not Mozer was According to in purported standard unfamiliar with a he was subject because must find fifteen expert an comparison hair that the science of opinion can be before an characteristics twenty similar 49, Allweiss, See, 48 N.Y.2d People v. e.g., reliable. deemed People 396 N.E.2d 421 N. Y.S.2d 93-96, 2d 384-85 Watkins, 259 N.W. Mich.App. that he was hearing, Mozer admitted (1977). At the Rule technique he explained that the a standard but unaware of such characteristics of different analyzing “hundreds used included they not seeing whether or by side and these two hairs side experience compari- Mozer’s extensive in hair compare.” Given son, hearing, at the court did Rule 8 trial established admitting expert. in him its discretion as an abuse Defendant also claims that the should not have “pubic to refer to the hair as a hair” because it been allowed conjures images agree of a sexual assault. We that the fact pubic hair is not relevant in this case. The that the hair is a might important fact is that the hair have come from defen head, chest, might dant. Whether it have come from his his or pubis allegations is in the of a sexual his irrelevant absence prosecution encounter. On retrial should refrain from “pubic referring to the hair as a hair.” —3— challenges ruling Philip Defendant the trial court’s that Beesley qualified opinion regarding per was to render an centage genetic in of blacks with a certain marker their blood. Beesley, expert serology, analyzed an forensic four blood Sehnaps’ apartment stains from that did not match the victim’s did match defendant’s. He found that the blood but four stains CAII, sample enzyme and a of defendant’s all blood contained present only Beesley which blacks. testified that population of the have CAII. black 17.5% Beesley unqualified testify Defendant contends that percentage population about the that has CAII. In reaching figure, Beesley part study that relied in on a State samples study 337 blood taken blacks. The concluded from population Jersey of the black in New have CAII. 17.5% Beesley participated study had not and did not know study it had conducted. how been Nor has that ever been published subjected scrutiny. to scientific His basis vouching study’s reliability person for for the was that “[t]he perform analysis did all who and all that data knows a lot * * study *.” The in-house an about statistics was insufficient ground Beesley testify figure. for about 17.5%

431 however, relied Book Beesley, also on the Source Forensic of of If that CAII blacks. Serology, which states exists 17.5% figure are can show that that book on retrial forensic-serology community, it in the considered authoritative 56(2); through figure Beesley. See Evid.R. can introduce the 206, N.J.Super. Owens-Corning Fiberglas, 225 Mauro v. (expert testify statisti (App.Div.1988) could about 542 A.2d “ reasonably by experts’ in the type upon ‘of relied cal data a disorder”), Ray pulmonary nom. Mauro v. field of sub aff'd (1989). Indus., 561 A.2d 257 mark 116 N.J. jury’s claims that the consideration of Defendant also its usurped doubt and quantified evidence reasonable statistical argument The is without weighing the evidence. function A. 2d King, N.J.Super. merit. See State v. figure high is (“[s]imply because rather (App.Div.1987) [a] one”). is a procedure it if the valid no reason to exclude test —4— Shuster, who that Dr. had conduct Defendant contends victim, opinions autopsy improperly testified about ed certainty degree of medical were not on reasonable based example, Dr. Shuster testified that probability. For or “possibly two or not.” We injury “possibly” wounds skull testimony. We part each Dr. Shuster’s need not delve into remand merely the trial court that on Dr. Shuster’s instruct in terms expert testimony ‘must be couched ultimate “[m]edical opinions certainty probability; or reasonable medical ” Freeman, 223 are N.J.Su possibility inadmissible.’ (App.Div.1988)(quoting Johnesee per. 538 A.2d Co., 2d 956 Shop N.J.Super. 416 A. Stop & (App.Div.1980)).

—D— hearing to determine wheth court conducted a trial credibility prior with a impeach defendant’s er the State could 432 hearing

conviction. The centered on defendant’s 1979 four- arising count conviction rape. from a Defendant was sentenced prison ato term twenty years. of fifteen to The record does not indicate when he was released. The trial court allowed the State to use the impeachment. conviction for

“The well-established jurisdiction rule this is that admis sion prior of a conviction ‘into against evidence a criminal ” defendant rests within the sound judge.’ discretion of the trial State v. Pennington, 119 (1990) N.J. 575 A .2d 816 (quoting Sands, State v. 76 (1978)). N.J. 386 .2dA 378 The defendant has the burden showing that the conviction should be excluded. key Ibid. “The to exclusion is remote Sands, ness.” State v. supra, 76 N.J. at 386 A .2d 378. The trial court here did not abuse its discretion in permitting the use of defendant’s impeachment conviction for purposes. conviction was years Moreover, seven old. because defendant had been prison sentenced to a term of fifteen to twenty years, at the time of trial he must have been out of prison for years. less than seven Given the seriousness of his prior offenses, we see no second-guess reason to the trial court.

—E— Defendant contends that the trial court improperly admitted sixty color photographs of the murder scene and of the victim’s body. We do not rule on challenge here but alert the trial court on remand to the standards set forth in Thomp State v. son, (1971), N.J. 283 A.2d 513 and discussed in State v. Johnson, supra, 296-299, at N.J. 576 A .2d State v. Moore, 239, 295-97, 113 N.J. (1988), 550 A .2d117 Rose, 533-36, N.J. 548 A .2d II, Bey supra, 181-83, 548 A .2d 846.

—F— Peggy Stevens testified that someone had per stolen fume and a camera from her house about a week before the reported had later she months Schnaps. Several murder of family had used Because her stolen. hatchet had been that a winter, she did not know fall and only during the hatchet the police searched the missing. When long it had been how undeveloped photo- car, and they found the camera defendant’s family. graphs of Stevens’ testimony argued that Stevens’ hearing the State

At a Rule intent, and corrobo- his identity, showed defendant’s established having stolen a confession, had admitted in which he his rated garage a be- someone’s week from instrument “hammer-like” testimony countered that Stevens’ Defendant fore the murder. could not because she crimes” evidence “other was inadmissible her the hatchet and because had last seen when she state it. had stolen prove that defendant testimony did not prove is not admissible crimes” of “other Evidence prove is admissible “to crime but disposition to commit person’s intent, motive, plan, knowl including fact in issue some other Evid.R. 55. or identity, of mistake accident.” edge, or absence by clear crimes proving other the burden of The bears Stevens, N.J.Super. convincing evidence. State and 289, 558 A.2d (App.Div.1988),aff'd, .2d774 537 A (1989). at first for the evidence court admitted Although the trial mind, purposefully or identification, of state of “the issues used, of the defendant presence type instrument knowingly, of confession,” scene, corroboration [defendant’s] at [and] evidence to of the limited consideration jury instructions its of identification. issue at the inadmissible testimony was argues that the

Defendant prove by clear did not the State guilt phase because The items. had stolen the that defendant convincing evidence allega- however, evidence State, provide did substantial stolen camera as reported their family had The Stevens tion. had found The the murder. before about a week car. Defendant of defendant’s film in the trunk camera having object had confessed to stolen a “hammer-like” from a garage shortly Schnaps’ before death. trial court did not However, allowing testimony. its discretion in abuse Stevens' because we have determined that defendant’s must confession suppressed, be the trial court should reconsider issue light remaining evidence.

The State contends that the trial court should have allowed jury testimony to consider Stevens’ for identifica- purposeful tion but also as evidence of defendant’s intent. We finding see no basis for that the trial court its abused discretion limiting admissibility to the issue of identification. argues testimony Defendant also that even if Stevens’ guilt phase, is admissible at the it should not be at the admitted penalty phase. penalty In phase the State “is restricted proving statutory aggravating rebutting proof factors and Rose, mitigating supra, factors.” N.J 2d The testimony A. 1058. State asserts that Stevens’ c(4)(c) aggravating showing relevant to factor that “defen weapon capable inflicting pain dant armed himself with a of and suffering testimony in addition to The death.” is not admissi penalty phase purpose. ble at the for that The fact may defendant have stolen a hatchet from the Stevenses is not c(4)(c). relevant What matters is whether he used that weapon pain suffering to inflict and on the victim. Stevens’ testimony question. However, is not relevant to that her testimony might c(4)(c). be relevant to the of issue intent under proposes If the State to show that defendant stole the hatchet purpose inflicting pain for the of suffering and on a future victim, testimony might murder Stevens’ be admissible. Other wise, remand, if defendant is capital convicted of murder on trial testimony penalty phase. court should not admit her at the

—G— alleges penalty-phase Defendant a number of errors involv- ing jury instructions that did holdings not conform to our in those claims need not consider capital cases. We subsequent remand, court the trial penalty phase on If there is a new now. formulating its instructions. opinions in heed those should support a does not that the evidence Defendant also contends c(4)(c), that the murder finding aggravating of circumstance argues vile, horrible, inhumane. State wantonly or c(4)(c) category of into the Schnaps falls that the murder cause, and did “intended to perpetrator murders in which suffering pain or cause, psychological physical or fact severe Ramseur, 106 death.” v. to the victim’s prior the victim (1987). claims that The State A .2d 188 N.J. the hatchet Schnaps in the head with initially struck defendant suffering prior to her pain physical her severe to cause The State fatal blows. he strike the Only later did death. post-death mutilation evidence of argues that there was further depravity of mind. indicates body Ramseur, opinion before our the trial occurred Because narrowed under our analyze the evidence did not the trial court issue, of that c(4)(c). nature the factual Given construction having had the trial court’s it without the pass we will Hightower the evidence. See State opportunity to evaluate A.2d 99. supra,

—IY— The cause is reversed. capital-murder conviction Defendant’s trial. for a new is remanded dissenting part.

O’HERN, Justice, concurring and majority, except judgment of opinion I concur in confession. defendant’s that it invalidates the extent ease of recent confession from our is far removed This case (1990). Johnson, 576 A .2d 834 120 State [Walter] against privilege found the defendant’s the Court In that case in violated, circumstances under but had been self-incrimination saying, questions by responded to repeatedly which “defendant ” T can’t talk about it.’ Id. at 576 A.2d 834. Such repeated ambiguity refusals had to create an about whether he thereby expressed had a “desire to cut off questioning.” Ibid. We noted that questions reluctance to answer “[d]efendant’s was not ambiguous confined to an isolated remark. persist He ed, hour, pattern for well prolonged over an silences and unresponsiveness, refusing any questions answer and all * * * about the murders.” Id. at 576 A. 2d 834. In the face of that kind of record we could conclude that defen right dant’s to remain silent by persistent had been violated renewal questioning.

Nonetheless, in this case there is no ambiguity about what said, quite simply defendant said. He you “I’ll tell about the murder, I my but first want to see father.” Defendant’s brief “they stopped recites that talking to him” arranged for Harvey’s father to brought jail. be to the Although defendant claims that he told his father that he did not commit the murder question and that police, he had been struck there is Harvey’s father, no evidence that much Harvey, less asked that questioning cease after the father and son had met. It took some time for the arrange for defendant’s father to be brought house, to the station ought but that not make the interruption qualitatively different interruption from an for food, rest, requests. or other

Here, context, as in the fourth-amendment there is no “lit mus-paper constitutionality. test” of Royer, See Florida v. 1319, 1329, (1983). U.S. 103 S.Ct. 75 L.Ed.2d all, warnings After v. Hartley, 103 N.J. necessarily A.2d 80 do not guarantee that a constitution al violation will not occur. Were Hartley admonition all that there were to the obligation, constitutional interrogators might question suspects continue to indefinitely by repeated Rather, warnings. recitations of the Miranda question suspect whether the has at least ambiguously right invoked his request to remain silent or to questioning cease. In that regard, II, the confession obtained in Bey 112 N.J. There, (1988), defendant provides guidance. the 548 A.2d 887 lie and “think about what request his to down claimed that questioning, cut right an of his to off happened” was invocation right by police “scrupulously failed to honor” his and that the warning interrogation reissuing a Miranda resuming without argument, rejecting hour In defendant’s his one of rest. after any police could not Court observed that reasonable officer the right his the as an assertion of to have construed statement remain silent: thinking his some time about

Defendant communicated desire to merely spend subject interrogation. ask that were He did not for an the events the sign rights. his he did not refuse to or refuse to a waiver of Similarly, attorney questioning, he to did not indicate in manner that wanted continue and any interrogation. questioning renewed admin end the Not break in compels every obliged warnings. Miranda to istration of the would be Otherwise, police warnings each time a defendant or was offered administer these requested something of to stand facilities, to eat or the use toilet drink, opportunity lie 548 A.2d 138-39, time to down. stretch, or, here, [Id. 887.] contrasting A Harvey questioning not ask should end. did that I, A. in Bey 112 N.J. 548 2d 846 case “he to police did not want talk which the defendant told noted, Harvey in case As this to about victim].” [them] [the that he would tell them about the specifically police told the murder, father. How could the first he wanted see his but willingness face defendant’s concluded of have request he had his father that his testifying after seen continue its appeared to face? other than what it be anything warnings all, single of set of After this was not a case evolving an investi questioning. Recall that this was desultory vicinity in the of burglaries series that occurred gation into a of ques Windsor; therefore, surprising it was not West period time. tioning over an extended had to continue short, right his to silence in never invoked In the defendant triggered. Were I to is not place, Hartley wherefore first request- defendant had conclude, majority, that the as does the cease, would then agree I would that we questioning ed that Hartley lieu of application the retroactive have consider totality suggested circumstances test Justice Stein separate opinion. his

STEIN, Justice, concurring part in dissenting part. and in Except for its conclusion that our in decision State v. Hart 252, (1986), ley, applied 103 2d 80 N.J. 511 A. must be retroac tively police interrogations to Hartley that occurred before the opinion published, I join opinion had been in the of majority. separately explain my I write disagreement to and emphasize holding concerning with the Court’s Hartley’s ap retroactive * * * plication. Hartley’s purpose I find that to “avoid confu * * * eases, in question sion conflict future on the of the requirement for ‘scrupulously honoring’ right minimum [the 80, silence],” recognition to id. at 511 A.2d its of “[t]he necessity guidance our giving for to our own law-enforcement * * officials id. at 511 A.2d are with irreconcilable today’s holding that Hartley applied must be to invalidate by interrogations confessions elicited conducted law-en before forcement Hartley’s bright-line requir officials learned of rule ing mandatory rewarning suspect right whenever asserts a to applying result Hartley interrogation silence. The of to in case, this in the course which officers administered warnings Miranda to separate defendant on seven occasions confession, highlights anomaly between his arrest and the Court’s determination to accord Hartley retroactivity. full

I. In Hartley, State v. this held Court that right before an accused’s to remain previously-asserted silent be deemed to may have been honored,” law-enforcement authorities at a “scrupulously must, warnings. the Miranda readminister minimum, In the absence of re- those warnings given newed statement any inculpatory response police-initiated interrogation right custodial after the has silence been invoked is inadmissi- N.J. at ble. A.2d [Id., 511 80.] based understanding Court its decision “not on our law, of federal on our constitutional but state common-law privilege against self-incrimination well.” Id. at however, acknowledged, the United States A.2d 80. It that issue, yet its Supreme ruled on the and that Court had rule, if prediction concerning how that Court would confronted question, might with the be incorrect: Hartley exercise, In ours is a law, therefore, of federal constitutional predictive respect understanding of the but authorities, on the basis of our best one conducted reading right. law We We think of the federal nonetheless our predictive. acknowledge wrong. it be Given the question may importance 284-85, we see it as a matter of state law. our settle involved, duty [Id. 511 A .2d 80.] primarily is based on federal constitutional Hartley Whether question its law critical to the retroactive or state law is Lark, application. acknowledged As we A .2d arise the context of the extent issues retroactivity criminal-proce [t]o rights implicating guaranteed constitution, the federal decisions under dure control the of retroactivity. [Id. United States Court Supreme precedents scope (citation omitted).] at 567 A.2d 197 335, 314, 708, 107 93 Kentucky, In v. 479 U.S. S.Ct. Griffith (1987), Supreme constitu- Court held new L.Ed.2d 649 cases procedure apply retroactively tional rules criminal review, the rule constitutes pending direct whether or not on 716, 328, 93 past. 107 at break” with the Id. S.Ct. “clean Thus, holding Hartley if is rooted at 661. our L.Ed.2d law, applica- its retroactive primarily in federal constitutional appeal by is mandated tion to cases direct Griffith. purports merely Particularly holding Hartley our because law, it would be realistic federal constitutional predict Although law. primarily on state as based Hartley consider yet by the 1986, holding adopted has to be Hartley’s decided Court, previously decid several federal courts had Supreme Hartley’s in a inconsistent with ed cases manner confession Solem, 317, (8th A. 2d 321 v. 752 bright-line’rule. See Stumes of his Miranda Cir.1985)(“[W]e was aware believe that Stumes require them. To voluntarily not to exercise rights chose these circumstances rights under to reissue Miranda police 1067, denied, 105 purpose.”), cert. 471 U.S. no real would serve 440 2145,

S.Ct. (1985); Balkcom, 85 L.Ed.2d 502 Jarrell v. 735 F.2d 1242, (“We 1254 conclude that no petitioner’s rights violation of by occurred the failure to reissue the Miranda warnings * * *.”), denied, reh’g 740 F.2d 979 (11th Cir.1984), and cert. denied, 1103, U.S. 2331, 471 105 S.Ct. (1985); 85 L.Ed.2d 848 United Hackley, States v. 493, 500, (D.C.Cir. 636 F. 2d 504-05 1980) (third Miranda warnings set of required not and state ment made two hours warnings admissible; after last held dissenting opinion colloquy views with accused reinterroga Tard, tion); Brown F.Supp. 1341, (D.N.J.1982) 552 1349 (‘Miranda require does not that a warnings fresh set of be repeated each time interrogation resume after an interruption.”); States, see also Miller v. United 396 F. 2d (8th Cir.1968) 496 (rewarning required interroga each time denied, process renewed), tion cert. U.S. S.Ct. (1969); 21 L.Ed.2d 574 United States v. Kinsey, F.Supp. (E.D.Pa.1972) (Miranda warnings do not become stale). Hartley’s

Because federal underpinning constitutional is questionable, and because there is no doubt about the availabili ty of state common law as a source of Hartley’s bright-line rule, it appropriate that the issue Hartley’s retroactivity be Lark, by determined state State v. standards. supra, Cf. 117 N.J. 567 A .2d 197 (retroactivity of State v. Howard, N.J. (1988), A .2d 1203 determined law, although Howard state collaterally implicates federal con rights). stitutional Burstein,

In 85 427 A .2d 525 we options summarized the available in determining the retroactive application of our decisions: note that this involving [W]e Court has four to it in decision options open any (1) make applying the new rule of law retroactivity: it purely prospective, (2) to cases whose facts arise after the new rule is operative announced; apply the new rule to future announcing cases and to the in the case parties the new applying pending (3) while the litigation; rule, old rule to all other and past

grant (1) applying (2) the new rule limited it to retroactivity, cases and pending well as to cases where the have not exhausted all parties yet avenues (4) give the rule retroactive effect, new review; and, complete of direct finally, judgments applying those final have been entered all even where cases, it to at 427 A.2d 525 [Id. 402-03, and all of direct review exhausted. avenues (citation omitted).] among has options those four been informed Our choice by weighing generally (1) the and whether be furthered a retroactive the of rule it would by purpose (2) degree reliance on the rule those who the of old placed by

application, (3) would have on the and the effect retroactive it, administered application (1974).] justice. Nash, v. 64 317 A. 2d 689 464, 471, of [State administration against the factors retroactive All three of Nash counsel purpose that To the extent application Hartley. give “guidance to our own law-enforcement Hartley is to * * * 80, officials,” 285, 511 2d and “avoid 103 N.J. at A. cases,” at A.2d in future id. confusion and conflict application Applying a non second sequitur. is retroactive factor, degree placed pre-Hartley on the Nash of reliance interroga requiring warnings custodial law Miranda before “scrupulous tion, mandating law-enforcement officials silence, right of suspect’s Michigan ly honor” a assertion 46 L.Ed.2d Mosley, U.S. S.Ct. interrogation in this case. amply illustrated warnings to defendant on Police officers administered Miranda between his arrest and his confession. separate seven occasions “[tjhere opinion acknowledges, is no evidence majority As the There no extended police or misconduct. were coercion designed wear defendant’s will.” Ante interrogations down entirely at It is reasonable assume A. 2d 488. interroga defendant’s Hartley if had decided before been attempted to tion, diligently who so police officers had might rule well have comply the dictates of Miranda with prior meeting with his father and after his rewarned defendant confes To invalidate defendant’s resuming interrogation. bright-line Hartley’s did observe sion because inappropriate manifestly that did not then exist—is rule—a rule jurisprudence. retroactivity with our inconsistent 442

Finally, application retroactive of Hartley may very well generate a of post-conviction applications multitude relief from defendants whose confessions were elicited pre-Hartley interrogations. may passed Those confessions have muster under Michigan supra, 96, 321, v. Mosley, 423 96 46 U.S. S.Ct. required suspect’s L.Ed.2d which that assertion of the right honored, to silence scrupulously be may satisfy but not Hartley’s bright-line mandating rule readministration of Mi- warnings Thus, randa resumption questioning. before of it is likely that application retroactive of Hartley adversely would justice. affect the of administration majority correctly The prior observes that decisions of this Court, although deciding issue, assumed Hartley that applied retroactively, citing Bey, 112 N.J. 548 .2dA (1988) I), (Bey 846 Bey, 123, 134-43, and State v. 112 N.J. 548 (1988) II), A .2d (Bey 887 my ante 581 A .2dat 491. In view, our assumptions in Bey unfounded, I and Bey II were impel should not us to decide the incorrectly. issue majority compares The application retroactive of to Hartley given by treatment the Supreme Court Miranda Arizona, U.S. S.Ct. L.Ed.2d observing applies that interrogations “Miranda that took place before that rule was if announced the trial did not commence until after the Miranda decision.” Ante at (citations omitted). A .2d at 490 majority suggests application Hartley of no should be less broad than that Miranda, noting the “obvious similarity” between the “nature However, and effect” of the decisions. Supreme two Court applying decision Miranda cases tried after the date explicitly decision rejected case full applica retroactive tion of the rule: * * * * ** light In the various we Miranda considerations, conclude that

* * * should not be applied retroactively. * * * governing our defendants from new standards Future will benefit fully * * interrogation courts will officers and trial *. Law enforcement in-eustody not in violation of standards notice that statements taken these may have fair begun against to trials after an accused. used Prospective application only be Authorities were is here. appropriate the standards announced particularly privilege attempting of the have not been heretofore apprised protect safeguards obligatory. have adopted which are now Consequently they specific although not intentional minimum, the constitutional were which, devices below privilege. In these circumstances, upset evasions of requirements pending in which obtained trials the convictions still on direct were appeal all of * * * unjustifiable the adminis- Miranda would impose preceding an burden on justice. tration of * * * to extend the same we not find reason time, At do any persuasive though the were even Miranda announced, to cases tried before those decisions v. New U.S. 719, 384 still be on [Johnson Jersey, cases direct may appeal. (1966).] 16 L.Ed.2d 891-92 S.Ct. 882, 86 732-33, 1772, 1780-81, Thus, retroactivity and retroactive rejected the Court both full to Mi- appeal prior but pending to cases tried application employed application limited form retroactive randa. Johnson need guide in our determination Court retroactivity under State law. factors, past has in the Nash on the this Court

Relying would application new rules of law that retroactive rejected good- “law enforcement actions undertaken have invalidated State legal authority.” upon long-standing then faith reliance (1980); State 546, 549, .2d 82 N.J. 414 A 966 Carpentieri, v. cf. Lark, 331, (limiting retroactive supra, 117 N.J. A .2d 197 v. 567 Howard, 113, supra, 110 539 A .2d of N.J. application Catania, 427 v. cases); 85 State N.J. 1203, pipeline (minimization adopted by court to be (1981) standards A .2d 537 Burstein, supra, 85 N.J. v. State only prospectively); applied 595, Cerbo, v. 78 N.J. State 411, (holding 427 A.2d 525 tapes for (1979) presenting wiretap delay in A .2d 671 delay, explanation for suppression absent sealing required Carpentieri, v. prospectively); State only applied would be v. that Delaware (holding supra, 82 N.J. 414 A .2d 966 (1979), Prouse, 440 U.S. 99 S.Ct. 59 L.Ed.2d date of stops occurring after only to random traffic applies (1979) 563, 404 Howery, decision); A.2d (holding Delaware, Franks v. 438 U.S. 98 S.Ct. applies L.Ed.2d 667 only to search warrants issued decision). after date of

Prospective application of our decision in Hartley fully consistent with these decisions. It avoids the invalidation of confessions admissible evidence but for the non-observance rule, of Hartley’s bright-line which was not unknown but unanticipated before this Court’s decision in Hartley pub- lished.

II. record, As I view this right defendant asserted his to cut off questioning when he told the officers that “he would tell about the murder but he speak [them] first wanted to to his father.” The resumption of interrogation after defendant spoke father, to his even without fresh warnings, Miranda did constitute a failure police to “scrupulously honor” right defendant’s to remain silent. In the context of the numerous administrations of warnings Miranda past over the days, several reasonably officers could have assumed that defendant was right aware of his to cut off questioning at any time. The trial court police determined that the “fully officers * * * complied with all of the defendant’s constitutional rights,” and that defendant knowingly voluntarily and waived right his to remain silent. I would hold that defendant’s confession properly admitted in evidence.

GARIBALDI, J., joins in opinion. this HANDLER, Justice, concurring and dissenting part. in In November the State defendant, indicted Nathan Harvey capital murder, for robbery in the degree, second burglary in the degree. second Following trial, jury a October defendant was convicted on all counts. capital reverses defendant’s murder convic The Court now I penalty. judgment. tion and death concur in its I am the Court’s determinations that error accord with reversible in the admission into of defendant’s confes occurred evidence provide charge in the failure to that sion and defendant with clearly distinguished between intentional murder and murder bodily injury resulting on intent to cause based serious separately I write I death. to stress what believe to be addi tional reasons for the reversals of the conviction and sentence. expert testimony These relate to the admission and use of my of other I that the of evidence crimes. also reiterate view enacted, capital State’s murder statute is unconstitutional as applied, warranting construed and also the reversals in this DiFrisco, 253, 284, case. v. 571 A .2d 914 See State N.J. (Handler, J., (1990) concurring). dissenting and

I. concedes, recognizes, The Court and the State that defen guilt in this significant dant’s confession is the most evidence of The now rules that the confession was unconstitu case. Court tionally scrupulously failed to honor obtained because request 581 A .2d at 489. his to remain silent. Ante agree ruling. I with charge in emphasizes that the murder this case Court Gerald, comply

clearly failed to with the standards (1988). I in the Court’s 549 A .2d 792 concur charge that defendant is entitled to a murder determination serious-bodily-injury distinguishes intentional murder from 412-414, It also 581 A .2d at 485-486. is murder. Ante at give charge resulted in a clear that the failure to a Gerald capital murder cannot the basis of a determination that be finding of jury sheet stated that a conviction. The verdict resulting in bodily injury intent to cause either death or serious Moreover, as the Court capital death constituted murder. out, support for a points adequate there was evidential Gerald charge. Ante at Coyle, State v. 413-414, 486; 581 A. 2d at see 119 N.J. 194, 209, (1990). jury 574 A.2d 951 Because the was charged felony-murder, aggravated manslaughter, and man slaughter, support there was sufficient evidence to murder See State knowing purposeful. verdicts that were neither nor Pennington, 119 N.J. (1990). 575 A .2d 816 II. recognizes problematic quality The Court of much of the testimony in this case. Ante at 425-431, expert 581 A .2d at misgivings 492-495. I have the same as does the Court with respect view, however, my to much of this evidence. In por inadmissible, unquestionably incompetent tions of it were and prejudice and the resultant grounds constitutes added for rever sal of the conviction.

I concur in the Court’s determination the trial court admitting abused its discretion in the purportedly expert testi Ante 426-429, 581 A. 2d at 492-493. mony Lovejoy. of Dr. Lovejoy’s analysis Dr. pillowcase, blood-stained conclusion “average-size that a “small man” or an woman” plus with a shoe size of print 6V2 or minus one-half size left the pillowcase, on the unproven were based on an and unreliable Zola, See 384, 447-48, methodology. .2d 548 A (1988). Moreover, opinion because testimony this linking Harvey crime, central identification evidence to the prosecutor summation, stressed guilt-phase his admitting Lovejoy’s opinion error Dr. my reversible view.

Another serious expert opinion error involves the of Dr. performed Marvin Dr. autopsy Shuster. Shuster on the victim and testified as opinions a State witness to his regarding conclusions the cause of death. Defendant claims erroneously the trial aspects court allowed critical of this opinion testimony which were not degree based on a reasonable certainty probability. of medical acknowledges or The Court standard, validity noting “opinions possi that as to of that inadmissible,” must satisfied bility are but rules that it be opinion .2d at 495. This on a retrial. Ante at 581 A serious, testimony important, the error in its admission I it prejudice thereby caused substantial. believe consti Court, independent ground tutes an for reversal and the rather admonition, so state. precatory than content itself with a should examination, length On direct Dr. Shuster testified about He then indicated the major and location of a head wound. wound____looked “particular like it was a confluence or at least pressure marks two.” He also stated that “there were on the minutes, usually quite neck” and that a number of takes “[i]t hour,” apply pressure. that probably more in the realm of an testimony potential being highly significant That had the killing evidence of the occurred. Never- manner which theless, the witness’ conclusions were based on no more than “possibilities.” He testified as follows: opening? inch And talks about that six Q. [the autopsy report] right.

A. That’s fracturing of the skull is in the not, And it does it obvious Q. present says, may wounds, of this wound which the confluence of several represent depths that correct? A. That’s correct. possibly its two wounds? In other words Q. you say A. Yes. possibly not? And it’s Q. correct. A. That’s have been the result of could marking said This on the neck you pressure Q. correct? hour, an is that for approximately I sir. said, A. That’s what yes, possibility, it could be again area is that correct, And this is in the Q. less, possibly possibly more? A. That’s correct, yes.

[********] injuries, object these is that said that it was a blunt that caused And Q. you correct? objects. object or A. I said objects? object You said or Q. A. Yes. jury voiced an there was this had opinion you Outside Q. presence

possibly objects? two object objects either or characteristics with several sides Either two or one A. injuries, giving to the different yes. patterns capable possibility? range, again, of this in the And Q. A. That’s correct.

[********] too, possibilities, range this is the as said, the number of blows you And Q. fifteen, you definitely probably say that it was as you or can’t far possibly more? or know it’s fifteen more, Fifteen or yes. A. testimony not couched of Dr. Shuster’s were portions Critical certainty. I believe the failure to of sufficient medical in terms categorize significant portions of Dr. Shuster’s explicitly all in certainty resulted testimony in terms of reasonable medical speculative and inádmissible evidence. disclosure of respect to testimony cannot be minimized with Dr. Shuster’s opinions in case. His about force and influence this its causing the type and the of instrument number of blows prosecution’s theory that injuries were crucial to the victim’s impulsive justifying homicide not a reflexive or this was opinion evidence escalated the case manslaughter verdict. The purpose inflict coupled with a into an intentional homicide prejudicing defendant’s pain suffering, clearly gratuitous as well as to ability a fair determination under Gerald to have c(4)(c). aggravating factor Yet penalty death under avoid the patently inadequate so terms opinion evidence was govern testimony medical that its admission the standards that reversible error. must be deemed

III. prior major difficulty respect with to a The Court finds no impeachment purposes, particu nor is admitted for conviction evidence. Ante larly by the admission of other-crimes troubled 431-432, I the conventional stan 581 A.2d at 495. believe at evidentiary rulings were made are under which these dards that, capital-murder context and both inadequate instances, reversible error occurred. See Long, N.J. 439, 513-18, (1990) (Handler, J., .2d concurring A dissenting). unexceptional

The prior rape Court finds the admission of a conviction to impeach credibility defendant’s under Sands, 76 (1978). .2d 386 A “Given the serious offenses, prior ness of his we second-guess see no reason to court.” Ante trial .2dat extraordinary A 495. It is that such evidence could in light be received of other evidence relating single pubic to a hair person attributable a black victim, found which disclosure had the unmistakable potential to inject sexual into the case. Ante at 429- assault 430, 581 A .2d at 493-494. that, prosecution Court rules retrial should “[o]n ” referring ‘pubic

refrain from Ibid. hair as a hair.’ grave potential That does not eliminate the for prejudice inher prior rape conviction, ent in Informing the however. jury the serious, that defendant had committed another violent crime in past capacity the has the clear to influence its of determination substantive guilt capital-murder on the capital count. In a case, slight bearing credibility the prior on that such a convic may tion have outweigh profound prejudice can never such in Pennington, v. my supra, See State N.J. at 561- estimation. (Handler, J., .2d concurring 575 A and dissenting). recognizes pertain Court that the other-crimes evidence ing to defendant’s theft a prejudicial of hatchet could have a impact respect penalty phase with to the Ante of the trial. at 432-434, view, my 581 A.2d at 495-96. In it imperative is that potential penalty prejudice the for of in such evidence the -phase trial be considered the trial court in its determining admissibility in in guilt-phase trial. I stressed Long, supra, that under Evidence Rule Evidence Rule go 55 and the court must further and weigh prejudice, prejudice against

determine the existence and potential worth evidence. Because “other-crime evidence has a probative Stevens, jury against defendant,” turn a unique tendency weighing N.J. process particularly 302-03 A.2d 833] [558 guilt offered in the phase in Such prosecution. proof critical a capital-murder that can taint not trial has an fallout” only a “evidentiary capital-murder guilt

jury’s its determination of life or death. [119 determination of but also (Handler, dissenting).] concurring and N.J. J., at 575 A.2d repeat: I underscore the need in a Those several considerations capital-murder prosecu hearing Rule 4 Evidence to determine admissibility tion to any require uncharged charged other and crimes, crimes, evidence —other of other-crimes prejudicial take into account not effect other convictions —must prior guilt prejudicial effect on the determination the determination of but also the Pennington, supra, 119 at of sentence. See State v. 586-87 A.2d [575 guilt-phase I in the of a The court must, capital-murder prosecution, 816], prejudice bring a consideration of the such evidence into the submit, equation inflaming, confusing jury arousing, or in its critical can have in terms of aggravating mitigating and in terms of the factors, capacity assessment dangerous to mark defendant as an violent and evil, person.

of such evidence (Handler, concurring dissenting).] J., 575 A.2d [Id. they I apply here. As view the record Those considerations justify reversal.

IV. judgment of the part from the Court. I concur and dissent dissenting Concurring part, part —Justices O’HERN, HANDLER, GARIBALDI and STEIN —4. WILENTZ, For reversal and remandment —Chief Justice CLIFFORD and POLLOCK —3. and Justices

Case Details

Case Name: State v. Harvey

Court Name: Supreme Court of New Jersey

Date Published: Oct 18, 1990

Citation: 581 A.2d 483

Court Abbreviation: N.J.