*1
Meredith A. (Peter Perretti, Jr., respondent Attorney cause for N. General Jersey, attorney). of New opinion Court was delivered
CLIFFORD, J. defendant, Hightower, for the juryA convicted Jacinto K. Cynthia Barlieb and for several offenses related to murder Following penalty phase, the trial court sen the murder. appeals directly to death. He to this Court as tenced defendant 2:2-1(a)(3), R. murder and death right, from the conviction Attorney for murder. The sentence. We affirm his conviction concedes that defendant’s death sentence must be General charge requiring juror unanim vacated because the trial court’s mitigating principles subsequently ity on a factor violated 123, 159-60, Bey, State v. N.J. enunciated 548 A.2d (1988) II). (Bey We therefore set aside the death sentence sentencing proceeding. remand the matter for new
I -A- Sunday, Cynthia July At 5:30 a.m. on Barlieb drove Dodge Farms gray her Omni to the Cumberland Pennypacker Willingboro, she as Drive where worked husband, clerk. received a call around noon from her who She nothing unusual her voice. noticed about Morris, officer, p.m. off-duty police At 12:15 Donald an chewing stopped buy at the convenience store to tobacco. Mor- standing register talking ris observed a black male at the cash to the clerk behind the counter. The man was about five feet tall, thin, light-complexioned. ten inches He wore blue “pushed up.” jeans and a white shirt with the sleeves As *8 store, “checking left the the man Morris seemed be [him] out,” apparently because he had noticed the revolver that carrying Morris was under his tee-shirt. sister, Dolores, Deasey Regina
A few minutes later and her car, alighting pulled up to the store. As Dolores was from the short-haired, thin, light-complexioned male came from a black door, store, opened the and told the sisters that back they repeat the store closed. asked the man to When himself, he answered that the store was closed because of an lot, emergency. they parking Regina As left the noticed a lot. maroon car wife, Yvonne, Clayton Leihy stopped
At 12:30 and his at the buy eggs. They Farms to automobiles Cumberland noticed two lot, “sporty silver-gray compact, in the one a the other a red store, looking” spoiler. Leihy car with a As Mr. entered the a “military type bearing” approached man short-haired with a closing him and said he was the store. The man was slender light-colored about five feet nine inches tall. He wore a jacket sunglasses. As short-sleeve shirt or and tinted she car, man, Leihy in the Mrs. also saw the she later waited whom slender, “[t]all, young,” light-skinned described as a black or Hispanic “[v]ery wearing male with close-cut hair.” He was sleeves, jeans top may blue and a white with short which have up. rolled been car, Leihy Mr. returned to the he and his wife saw the
When register, man walk behind the cash which was on the counter at picked up plastic the back of the store. The man bread According wrapper wiped the counter with it. to Mr. Leihy, “it dark in store.” was rather home, way Leihy, Mrs. who had once worked for
On their Farms, strange that Cumberland told her husband that it was day. Normally the closing the store was in the middle of the company any during for reason business did not close stores it couple hours. The also commented that was odd that two lot, parking yet only person one was in the cars were home, telephoned they Leihy arrived Mrs. store. When Willingboro police report suspicions. her 12:40Mark Thomas entered the Cumberland Farms.
At about A inside. Thomas hollered for number of other customers were opened he door to a clerk but received no answer. When case, dairy the floor. He and Ronald Thomas saw foot on customer, Davis, freezer opened another the main door to the *9 eye left was “messed lying saw a woman on the floor. Her and on up,” “off-colored.” Blood was the floor and her skin was her neck could not discern a near her head. Davis touched but pulse. police,
Walking behind the counter to call the Thomas saw telephone, “everywhere.” As Thomas started to dial the blood parking seeing After the Payton Officer drove into the lot. assistаnce. DePew body, Payton called for further Officer counter, Making way to the DePew responded to the call. dried, counter, computer the cash saw smeared blood on the register, plastic bag A that had been and on the floor. bread floor, open lay torn on the and a few slices of bread were strewn about.
Meanwhile, Davis, Thomas, Payton, detecting a faint pulse, attempted to resuscitate the victim. Paramedics arrived Valley Hospital. Despite victim to Rancocas and took the emergency surgery, Cynthia doctors could not save Barlieb’s life.
During subsequent investigation police found a casing register. spent .32-caliber shell on the counter near the register pry There were marks to the left of the drawer and a dusting right. plastic bag bullet hole to the A bread fingerprint. a latent uncovered DeLorenzo, Joseph Dr. Medical Examiner for Bur- Chief lington County, performed autopsy an on Barlieb that same evening. body The external examination of the revealed three wounds, chest, one on the left side of her another on the bullet neck, portion left of her and the third on the left side of her opinion, In Dr. DeLorenzo’s the first shot had hit the skull. Entering body right victim’s chest. about two inches to downward, nipple, the bullet had travelled abraded the sac, pericardial penetrated right diaphragm, dome of the and entered the liver. The next bullet had struck the victim ear, her one-quarter three and inches behind the left lacerated cord, spinal lodged in the second cervical vertebra. *10 to the left skull four inches final shot had entered the victim’s midline, vertically, stopped the directly and travelled in a that the victim had been path The indicated victim’s brain. possibly had been her assailant and position” “much lower than hit her. Dr. DeLorenzo the third shot lying on the floor when body. the and three bullets from fragments lead removed DeLorenzo, massive had died from According Dr. Barlieb to hemorrhaging gunshot to wounds. due and abdominal cerebral
-B- Bliss, Texas, twenty-one- at Fort army post from his On leave July 4th weekend at Hightower spent the year-old Jacinto K. morning the Willingboro. He went out on parents’ house in his returning pick up to his After July 7th to run some errands. Asia, Michelle, he drove to Michelle’s wife, daughter, his and Although Philadelphia. Brooklyn at 668 Street apartment to leave for planned that he parents had told his Hightower Willingboro. to wife returned night, Bliss that he and his Fort stepfather yet departed, his Hightower had not Upset that to her then took Michelle airport him at the and dropped off her room- home she showed Michelle arrived apartment. When Williams, some bullets mate, gun and a box with a small Irene put gun in their and Irene her. Michelle she had with evening High- Hightower. Later to hide it from bathroom go having decided apartment, up at the tower showed AWOL. had a days, Hightower next few point over the
At some Christopher Forston. boyfriend, with Williams’ conversation man named Forston, Hightower asked about According to Michelle. having an affair with apparently Carlton who see “what in order to meet Carlton wanted to Hightower him cooperate with “didn’t If Carlton sleeping with.” wife was High- replied that Forston kill him. right,” he would and talk killing people.” “go around here not tower could People do dangerous games. play “I responded, Hightower having told Forston play.” I He then games that like the “Pepperidge in a Farm Store.” somebody, a woman once killed Pampers; that buy store to he gone he had to the He said that for a carton and asked the clerk diapers on the counter put the cigarettes, he the clerk retrieved the cigarettes; that while “closed”; “open” sign to changed to the door walked counter, bag put he a tote on returning to the that after he asked the clerk pulled gun; out a and that counter cooperate. So I old won’t register, but bitch open “[t]hat fell to the floor in her chest.” woman shot her one time Hightower’s she refused got on her feet. When but back in the neck. register, he shot her request open second Hightower jumped across again. The clerk fell to the floor register, banging computer cash counter and started it. he felt the clerk open how to When he did not know because *11 him, He then turned off her in the head. Hightower shot touch lights and left the store. sunglasses. pair of his told Fоrston about a Hightower also them, up” them he “broke Although “girl” wanted to wear get me in some “they could away because and threw them something that I’ve done.” They could lead to trouble. Hightower. with his conversation told Williams about Forston gun from the later took the request Forston At Michelle’s it under Williams’ bed. and hid bathroom Forston, left for Hightower with after his conversation Soon leave on coast on medical again visited the east Texas. He apartment, she arrived at Michelle’s August he 18th. When Although Forston and Williams entertaining man. another was Hightower enter there, to let everyone was too afraid also were removed police, called the who of them apartment. One premises. Hightower from and Ser- Fitz-Patrick day Sergeant Michael Scott The next Burlington County Prosecutor’s Ryan of the geant Edward V. mother. Earlier Irene Williams’s to the home of went Office Hightower to the linked had unidentified source that week an Williams, the statements Barlieb. From Cynthia murder Forston, Hightower, the officers mother, Michelle her apartment Brooklyn at 668 gun hidden in the learned about Street. 20th, August Fitz-Patrick
During early morning hours of Depart- Willingboro Police Donald Warren of the and Detective gun. arrival Philadelphia to retrieve the On their ment went to that fit the de- Burgundy-red Plymouth Turismo they saw a day of Farms on the scription parked of the car at Cumberland Hightower asleep in the car. found the murder. The officers to their office for an they accompany him to them When asked interview, waiting he for his wife. Hightower replied that Hightower agreed to suggestion, Sergeant Fitz-Patrick’s At gone. he had explaining where a note for his wife leave County Burlington Prose- Hightower to the The officers took Hightower received Holly at 2:20 a.m. Office in Mount cutor’s obtaining After warnings signed a waiver card. Miranda Fitz-Pat- Hightower, Sergeant from background information murder commit- pertained to a him that the interview rick told Denying any July 7th. Farms ted at the Cumberland he murder, Fitz-Patrick that Hightower told knowledge of the Williams on Philadelphia to visit Irene gone had and his wife f day. of that the afternoon day, Hightower store that gone if had to a asked he
When gas station an A & P and may gone have responded that he he did not mind and said that changed his in Delran. He then if specifically day. Asked gone any store think he had Drive, Pennypacker Farms on gone to the Cumberland he had *12 only that store./ never went to stated that he Hightower added, to, was a Seven- go he he ever store would convenience Road. Eleven on Salem Farms on at the Cumberland had seen
Informed that he been store. frequent that repeated that he did Hightower July bought diapers Hightower had asserted that Fitz-Patrick When had, he he but that that day, Hightower admitted that there he Hightower said that Continuing, forgotten until now. had car, Burgundy Plymouth Tourismo stepfather’s a had driven door, stripes on the to the racing rear and spoiler a on the with 11:00 a.m. He day, probably that around Farms Cumberland of the store. He had been the car in the lot front parked had shoes, jacket and a white with wearing jeans, white blue having worn half-tinted pushed up. He remembered sleeves recall whether he had worn day that but could not sunglasses him had picture that a Hightower to the store. added them wearing those clothes. day in he was taken that which been gun, a Hightower if he had ever owned asked Fitz-Patrick he anyone. Hightower claimed bought gun, given gun a pistol him the taken Fitz-Patrick showed never had. When morning, High- apartment Brooklyn from the Street earlier gun having seen the before. tower denied ever sunglasses he had worn Asked about the whereabouts 7th, might have Hightower replied that his brother July having spoken to Forston Although he denied ever them. talked to gun, Hightower said he had the murder or the about with.” At 3:56 out Michelle “had been Forston to find whom reflecting he had taped statement what Hightower gave a a.m. forty-six min- tape approximately was Fitz-Patrick. The told High- Fitz-Patrick arrested Sergeant a.m. long. utes At 5:00 Cynthia Barlieb. murder of tower for the given taped his wife had Hightower told Fitz-Patrick Fitz-Patrick, Hightower she said that According to statement. Fitz-Patrick then he had murdered Barlieb. had told her portion of the statement. played a innocence, a lie-detec- Hightower asked to take Claiming his Lieutenant' Robert Scara Fitz-Patrick summoned tor test. in- being After County Prosecutor’s Office. Burlington Hightower signed a waiver form. rights, again formed of his While Scara polygraph examination. then conducted the Scara results, Hightow- Fitz-Patrick secured interpreting the test Plymouth Turismo. to a search of the er’s consent *13 explained Hightower polygraph Scara to that the results Hightower problem” indicated that had “a with some of the questions Hightower about the crime. asked to take another test, test. After the clearly second Scara said that the results * * * Hightower “directly showed had been involved the shooting of the victim.”
Hightower speak Investigator asked to to James Bucs. He told Bucs that he had polygraph failed the could but why understand spoke because he was innocent. He about his go wife and child and said he did jail. not want to to Bucs told Hightower beginning weigh” against that “the facts were to him. 20th, August police
Around noon on Hightower took county jail. Later that afternoon Eitz-Patrick and Bucs brought Hightower informing back to their High- office. After rights again, they tower of his him told that the ballistic tests comparing gun apartment seized from his wife’s with the body completed. bullets recovered from Barlieb’s had been results, Hightower replied When asked if he “knew” the they Hightower expressed “matched.” After a desire to return cell, to his trigger Bucs declared that either he was the man or he family knew who was. Bucs told him to think about his Bucs, family According Hightower’s “eyes victim. began eyes.” to water and tears from his flowed Bucs took jail. him back to the cellmate, suggestion Hightower
At the of his Willing- called Gregory September boro Detective Rucker on 4th and asked to jail, Hightower meet with him. When Rucker arrived at police wrong person- insisted that the had arrested the and that gun. Hightower he knew who had had Rucker told that he not discuss him at that would the homicide with time. Being case, prosecu- unfamiliar with the Rucker went briefing. jail tor’s office for a He then returned to the and took Hightower Willingboro signed to the Hightower Police Station. another card. Miranda-waiver *14 of Hightower gave
This time a different version his activities July the gone He said that he had to Cumberland 7th. Pennypacker buy 11:00 a.m. dia- Farms on Drive about to gun bought him he pers. He took with a .32-caliber had According Hightower, purchased gun to he the Texas. had shooting had considеred his wife and himself. because he Hightower spent thought minutes store. about five in the He might clerk have a female he was unsure. the been but Burlington Hightower City, then drove to where he met with “Sonny.” drug Sonny a known as He described as a dealer male, eight, one-hundred-and-fifty pounds, five black about feet stocky build, light-complexioned. Sonny twenty-six thick, twenty-seven years old and had a thick mustache and wavy hair.
Hightower Sonny anyone asked if he knew who to wanted out,” buy gun. High- he it Sonny a When said would “check gun. gave containing Sonny tower handed him the box Hightower marijuana cigarettes off two and walked towards bar.
Hightower Burlington. then drove to his sister’s house in home, Although Hightower she was claimed that a “Mrs. Odie” him. Around 11:40 a.m. he to the had seen returned Sonny. Sonny he with intersection where had met When came back, gun he containing Hightower, returned the box to saying Hightower put sell it. he had been unable to the box Willing- under the seat of car and returned to his home in he and his had car pots boro. After wife loaded the with and to pans, they Philadelphia. drove story, Hightower telling When had finished this Rucker at- it, tempted question Hightower “very him but to about became asking upset” stop questions. Hightow- told Rucker At request, jail. er’s Rucker him back took
-C- County Burlington Jury Hightower A for the Grand indicted conduct, purposeful Cynthia by murder of his own Barlieb 2C:11-3a(1); contrary knowing N.J.S.A. murder of Bar conduct, contrary 2C:11-3a(2); lieb his own to N.J.S.A. Barlieb, 2C:11-3a(3); felony contrary murder of to N.J.S.A. first-degree robbery, 2C:15-1; contrary to N.J.S.A. second-de gree possession weapon purpose, of a contrary for an unlawful 2C:39-4(a); third-degree possession to N.J.S.A. unlawful handgun, contrary 2C:39-5(b). to N.J.S.A. 2A:11-3c(2) 3:13-4(a), Pursuant to N.J.S.A. and Rule State served defendant aggravat with written notice of three ing prove during penalty factors that it would seek to phase (1) of defendant’s trial: outrageously the murder was or wan vile, horrible, torture, tonly or inhuman in it involved mind, depravity aggravated victim, or an assault to the *15 2C:11-3c(4)(c); (2) N.J.S.A. the murder was committed for the detection, trial, purpose escaping apprehension, punishment, of or confinement for another offense committed the defen dant, 2C:11-3c(4)(f); (3) the offense N.J.S.A. was committed of, engaged while the defendant was in the commission оr an commit, attempt flight committing attempting after or to robbery, commit 2C:11-3c(4)(g). N.J.S.A. juggernaut. prosecution
The State’s case at trial was a The photographic array Regina introduced evidence of a shown to Morris, Deasey, Clayton Leihy. Donald and Yvonne Both Deasey positively being and Morris had identified defendant as day. Although Leihy in the store that Mrs. had been unable to positive photographs, make a identification from the she had photograph resembling chosen defendant’s as most the man she Leihy had seen in the stores Mr. had been unable to make a trial, Morris, positive Deasey, Leihys At identification. and the they identified defendant as the man had seen at the store on July jacket 1985. Morris indicated that a white taken from Hightower’s apartment Hightower resembled the one had worn day. Deasey Leihys pictures High- that and the identified they tower’s Turismo as the red car had seen the conve- parking Leihys photo- nience-store lot. The also identified graphs gray they of Barlieb’s Omni as the car had seen. wearing red thought Hightower might have
Deasey been tee-shirt, but she not sure. pur- had jury convincing
The heard evidence that defendant Hightower’s apartment. A gun found in Michelle chased gun expert that had fired the bullets testified that ballistics photograph The State extracted from victim. introduced 7, 1985, wearing allegedly showed defendant on, taken July sunglasses. jacket, a white and half-tinted jeans, blue account of Christopher Hightower’s testified about Forston story “Pepperidge Farm murder. The details of Store” corresponded with the evidence that the State intro- much of woman; description the clerk defendant’s of how duced: was a times conformed to the Barlieb-au- he had shot victim three register findings; computer found on the cash topsy marks explanation having banged on the corroborated defendant’s it; register open he did not computer because know how having Hightower’s lights off was recollection turned Mr. Leihy’s with observation that the store had been consistent “rather dark.” expert fingerprint
An FBI that the latent found testified bloody bag belonged Leihys bread The had defendant. at wiping seen dеfendant the counter the store with a bread offense. heard wrapper time of the also , Hightower's the time statement taken at of his arrest. case, During the defense two officers testified that twelve July had had people who been at the Cumberland Farms on 7th *16 identify Hightower’s photo line-up. On been unable from people elicited the fact those cross-examination the State that necessarily day, at the various times that not had been store at Moreover, allegedly defendant there. one of those while was lineup Hightower’s depict- picked photograph shown the had as ing very that similar to the had seen in a man looked one she July store. Another who had been at the store on witness short-haired, spoken light- that had with 7th testified he early skinned black male in his twenties that he had been but positive unable to make a photo identification when shown a lineup. At trial he positively identify Hightower could not as cross-examination, the man he had seen in the store. On however, he stated that he resembling had seen a car defen- parking dant’s in the lot. produced
The defense gone four other witnesses had who p.ifl: Cumberland Farms around 12:15 day of the having murder. Two of them could not recall seen defendant third, Kerr, there. The Bruce he testified that had seen a man who, although Hightower, he looked only like about five witness, foot five. The Cheryl Lyons, fourth could not describe the man attempted she had seen even after the State to refresh memory her given with an earlier statement in which she had male, description light-complexioned ten, of a black five foot build, twenties, wearing medium middle to late tinted sun- glasses. behalf,
Testifying in his own defendant claimed that picture wearing jacket, jeans, sunglasses of him the white 6th, July July July was taken on 7th. He testified that on 7th he had worn white slacks and a white fishnet shirt. He acknowledged ownership gun “Sonny” recounted story, Now, which he had related to Rucker. Detective how- ever, Sonny’s “bushy.” mustache was “faint” rather than why he When asked had told Fitz-Patrick that he had never before, gun seen the defendant said he lied he that had because explained had been a state of “shoсk.” He that he had initially he told Fitz-Patrick that had not been the Cumber- 7th, go July land Farms on because “I don’t remember when I day.” gone to the store each When that he had to the told diapers day, buy store to “it clicked.” He conceded that July recollection of the time-frame of his activi- current 7th might ties not be consistent with his initial statement. He said good he or Forston. did not have relations with Williams Cynthia he Bar- Finally, defendant insisted that had not killed lieb.
Among brought on cross-examination was that facts out the story, Hightower possession had of the “Sonny” under even the was murdered. gun at the time Barlieb Eucker, defense, Detective witness called the final given “Sonny Hightower that had him story” about the testified supra at 577 A. 2d 106. September 1985. See deliberating the defen- jury for four hours convicted After on all five counts. dant phase additional the State introduced no penalty
At the psy- presented expert six witnesses: evidence. The defense worker, a crimi- chologist, psychiatrists, a social and three right his to allocution. He nologist. Defendant also invoked professes sending his innocence” jury that a man “who told thirty revenge instill “hatred prison years would and to for him asked system” put that had there. He towards the “you society him that jury to sentence to death so [will] * * * the world and then turn him loose on create a monster thirty years.” after (1) jury: mitigating five factors
The defense submitted mental or emo under the influence extreme defendant was prose a defense to to constitute tional disturbance insufficient 2C:11-3c(5)(a); (2) cution, his at the time of the age N.J.S.A. murder, 2C:11-3c(5)(c); (3) appreciate capacity his N.J.S.A. wrongfulness of conduct or to conform his conduct to impaired sufficiently as the requirements of the law was defect, degree not to a sufficient result of mental disease but 2C:11-3c(5)(d); prosecution, to constitute a defense N.J.S.A. significant history prior activity, criminal (4) no he had (5) to his 2C:ll-3c(5)(f); any other factor relevant N.J.S.A. offense, record or to the circumstances character or 2C:11-3c(5)(h). N.J.S.A. deliberation, found and one-half hours of
After three proven beyond a doubt all three had reasonable namely, the murder was wan alleged, aggravating fаctors *18 vile, tonly that it was escape committed to detection for another offense, and that it during was committed felony. Although jury determined that defendant had mitigat established two factors, ing (5)(f) (h), N.J.S.A. 2C:11-3c it held that each of aggravating outweighed factors mitigating all the factors beyond a reasonable doubt and that all aggravating of the outweighed factors mitigating beyond all the a reason factors able doubt. Based findings on those the court sentenced defen dant to death.
II
charges
Defendant
that he received ineffective assistance of
during
counsel
recently
selection.
applied
We
the stan
dard
668,
enunciated in
Washington,
Strickland v.
466 U.S.
2052,
(1984),
104
Fritz,
S.Ct.
-A- alleged permitted The first error is that counsel a racial ly-disproportional jury panel. fifty-two Two of the members on black; panel the first were four of an unknown on the number black; panel fifty second were four of the on the third members black; panel forty-one panel were seven of the on fourth black; forty-seven panel were one of the on the final was black. people jury panels Defendant concludes that of the 190 on the fourteen, 7.37%, (In only reaching figure, were black. that panel. If the second apparently omitted the second
defendant
(the highest
figure
fifty-two
number
panel
using
is added
panel,
panels) for the total number on
on the other
7.44%,
eighteen, or
were black.
people
panels
on the
does not affect
figure
and defendant’s
disparity between
here.)
Defendant claims that counsel
our conclusions
challenge
jury-selection process
failing
ineffective
grounds.
fair-cross-section
equal-protection and
-1-
(1987),
Ramseur,
401 panelist: black “There population have been not the usual any Blacks vis-a-vis panels. Whites on of these three I know coincidence, just pure it’s very but I’m reluctant early at this point job-related to excuse him a The court’s [for reason].” that, suggests least, remark panels its view at Burlington County normally are racially more balanced.
Defendant fails to meet the third criterion as well. He cites evidence, otherwise, no statistical or of discriminatory intent. acknowledges Defendant Burlington County that compiles its petit-jury voting records, lists from motor-vehicle proce a dure that “facially we have deemed neutral.” v. Rams eur, 224, supra, 106 524 N.J. A. 2d 188. Defendant does not suggest procedure how that selection is “non-neutral” here. jury-selection
Because we find no evidence that the procedure equal-protection violated defendant’s rights, his counsel was not failing object. remiss in -2-
The sixth requires petit-juror pools rep amendment resent a “fair cross-section” community. Duren Missouri, 357, 26, 664, 368 n. n. U.S. S.Ct. (1979). L.Ed. 2d 589 n. 26 A alleging defendant a violation requirement of that prima must test similar to meet facie an equal-protection for claim. The defendant must iden tify constitutionally-cognizable group, representa show that group period tion of that over a of time has not been “fair and reasonable,” under-representation and show that the was due to *20 systematic exclusion.
Again, prong defendant has met the first and failed the presented proof systematic second and third. He has no that exclusion of blacks has resulted in unfair and unreasonable under-representation jury pools period over a of time. Like wise, he systematic any has not shown that exclusion caused claim, under-representation. equal-protection As with the de object composition fense counsel’s failure to to the pool did not amount to ineffective assistance.
-B- representation dur alleges that counsel’s Defendant also keep he tried “to ing jury selection was deficient because obviously have been destructive individuals who would several sought to excused cause.” Juror Weiner be to the defendant’s Regina case witness had from she learned about because co-worker, defendant’s sister was a Deasey, and because although said that she client of hers. Weiner job-training defendant, helped she believed guilty feel if she convict would court denied the State’s prejudiced. not be she would cause, part due to defense counsel’s motion for excusal for juror. to retain the effort fairly again stated that she could
During voir dire Weiner however, added, that if sides of the case. She evaluate both sentence, dealing she would feel awkward she voted for death explained further that she knew with defendant’s sister. She thought Deasey would be and she testimony what the guilty. Despite arguments, defense counsel’s defendant was Weiner for cause. the court excused attempt to Wein contention that counsel’s retain Defendant’s prongs ineffective fails both of Strick er constituted assistance despite Clearly prejudice: no counsel’s there was land/Fritz. Furthermore, juror excused the for cause. position, the court Although strategically Wein conduct was defensible. counsel’s conviction, relationship with demonstrated toward her er bias might sympathize him sister indicated that she with defendant’s during The fact the State penalty-phase deliberations. support Defense sought excusal tends that view. Weiner’s professional the zone of reasonable counsel’s actions fell within McCotter, F.2d 494-95 See performance. Wicker Cir.) (5th juror expressed possible problems (acceptance who background testify, not to but whose with defendant’s decision might accept suggested that he inclined defendant’s be case, demonstrating strategic decision theory of the was a
403
“effectiveness,
ineptness”),
denied,
1010,
cert.
478 U.S.
106
3310,
(1986).
S.Ct.
Defendant
challenges
also
counsel’s failure to seek excu
juror
sal of
Iashburn.
Iashburn
opinion
said he had formed an
concerning
guilt
having
defendant’s
after
read about
the case
newspapers.
juror
also mentioned that his brother was in
Virginia prison
having
for
shot
object
someone. Neither side
finding
ed to the court’s
death-qualified.
Iashburn was
Defendant’s claim of ineffective assistance here also fails
prongs
both
First,
Strickland/Fritz
test.
defendant
prejudice.
suffered no
Iashburn never became a member of the
jury,
expend
nor did
peremptory
defendant
challenge on him.
Second,
may
counsel
thought
have
that because Iashburn’s
prison,
brother was in
he
sympathize
would
with defendant.
Finally,
argues
defendant
that the trial court errone
ously
who,
juror Montesjardi,
excused
initially being
after
ac
cepted as a
jury,
member of the
returned to the court and
expressed
ability
doubts
her
impose
about
a death sentence.
Defendant
Montesjardi’s
contends that
excusal violated the
Texas,
38,
standard enunciated in Adams v.
448
100
U.S.
S. Ct.
2521,
(1980),
adopted by
-C- juror Montesjardi panel of fifteen of left a The excusal objection proceed it no to The State indicated that had jurors. counsel, However, had ing only fifteen. defense who with pre twenty-five peremptory challenges, his all of exercised suggestion At his the trial court ferred to have sixteen. remaining juror from the mem randomly selected a sixteenth Ders, eventually juror, deliberat pool. in the The selected bers guilt phase penalty proceeding. and ed at the attorney his should have moved for Defendant contends that mistrial, peremptories, accepted or the asked for additional peremptories. Defen- panel jurors of fifteen who had survived however, dant, suggest no alleges prejudice. He does not that any way. During voir dire neither juror Ders was biased sought to excuse her for cause. selection of party had right trial a fair and juror Ders did violate defendant’s to not impartial jury.
Ill should reverse his convic- Defendant claims this Court during guilt incompetence the tion because of his counsel’s beginning from of the phase He contends that the of trial. “gave essentially guilt up.” conceded and We trial his counsel light strength of at that in the State’s note the outset case, meeting prejudice have time will a difficult defendant prong test. of Strickland/Fritz
-A- defendant, closing According opening counsel’s to signalled guilt and distanced belief defendant’s statements During opening, client. his counsel told counsel from his jury duty its guilt decide but innocence, thе issue or also to
[n]ot only perhaps simply deal with what would be Your only potentially penalty appropriate. options: cage or life in a the ultimate sanction of death. imprisonment essentially During closing, explained counsel his role: obligation
And what is the or ever defense who has sat will every attorney sit in that chair across the men not courtroom? The who sit there are free to overwhelming in the face of not free down and quit lay adversity. They’re dead before time. Each one of the has ever play men who any allegiance although will ever sit there like I has sworn to a which, system is the cornerstone our free and that is a free adversarial perfect, society where sides both come into a courtroom and the evidence system public present and ask for fair honest you evaluation under law. you your The men who sit and will sit in that over there chair come forward continu- fight to defend causes and for ously unpopular unpopular people. They *23 guilty, good innocent and for the the and the bad. And as American you longer citizens need to and about life when are no only worry there your liberty willing men available who are to shoulder what is so times any many very burdens. unpopular obligation this time is at to come forward and review the evidence with My light Hightower. in the most favorable to do you client, To otherwise my Joey justice would be our to of and both pervert system simply Cynthia deprive Hightower justice Barlieb and of under our law. Joey support argument In of his that those mandate remarks conviction, reversal of his defendant cites cases in several expressly guilt jury. which defense counsel conceded to the In Magill v. 824 F.2d (11th Cir.1987), defendant, Dugger, 879 the having victim, killing confessed the asserted that he did not mens rea have the for first-degree murder. The found court that attorney failing the defense had been ineffective in to explain argument opening closing during and state “[Cjounsel’s closing argument gave ments. rebuttal no reasons upon jury charge capital which could the the reduce murder to 2d degree second murder.” 824 F. at 888. court held incompetence that counsel’s in itself did not mandate reversal conviction; however, during combination with other errors penalty phase, including mitigating the failure introduce evidence, opening closing required the deficient statements reversal of death sentence. (11th Cir.1983), Spraggins, Francis v. cert. 720 2d 1190 F.
denied, 1059, 1776, (1985), 84 L.Ed.2d 835 S.Ct. 470 105 U.S.
406 knowing participation in any on the stand the defendant denied told the charged his counsel crimes. Nevertheless I closing: “I think in the house and think he during his he went * * at 1194. the crime of murder *.” 720 A.2d committed expression personal guilt would be Noting that the belief prosecutor, even for a the court determined improper his assistance at conduct was “irrational and rendered counsel’s Ibid. ineffective.” trial Zant, (11th 792 Young cites v. 677 F.2d
Defendant also Cir.1982), in the defense counsel made several critical which during First, attorney insanity trial. raised errors it.” 2d support “without evidence to 677 F. at 798. defense Second, he “the defenses” that would failed discern obvious highlight prosecution’s “extremely partic thin” evidence on Although finding Id. 798-99. ular elements of offenses. at “fell that those deficiencies alone showed that counsel’s conduct trial,” required in a far short of that of counsel criminal id. 799, attorney’s the court observed that the indefensible decision guijt to three at summation to concede his client’s all crimes problem. The charged compounded the court reversed Finally, Wiley defendant’s convictions. defendant refers Sowders, 642, (6th Cir.), denied, 454 647 F.2d cert. U.S. (1981),in which the defense S.Ct. L.Ed.2d unequivocal counsel’s summation contained “several admis violating sixty- guilt, thereby the defendant’s sions” of *24 required reversal his rights, fourteenth-amendment which of conviction. First, distinguishable are from this one.
All four cases Second, guilt. during the here conceded bulk counsel never summation, attempted his to reasonable counsel introduce possible eye-witness testimony highlight concerning doubt bias and to make defendant’s alibi stand witness or self-interest Third, up contradictory in the face of evidence. defendant does possible allege lawyer investigate failed either to Francis, Finally, present exculpatory evidence. defenses Wiley pre-Strickland and were all cases. None of Young, those cоurts determined whether counsel’s conduct affected the verdict. alleges
Defendant also
opening
that counsel’s
clos
and
ing
attorney
distanced the
from his client. Defendant cites two
precedents for
pre-Strickland,
reversal.
case of Good
Balkcom,
(11th Cir.1982),
denied,
win v.
Defendant also refers to the
case of King v.
Strickland,
(11th Cir.1983),
The situation here is much different from those in Goodwin King. Although jury might have inferred that defense *25 express- appointed, such a statement was not
counsel had been Moreover, during opening ly made. counsel’s remarks describing made context duties of summation were in the allege participant process. each in the trial Defendant does not exculpatory any investigate present failure to issues or evi- closing Finally, opening dence. even if counsel’s were case, deficient, strength of do not given the the State’s we materially they jury’s affected verdict. believe
-B- representation, inadеquate further de As evidence his points fendant counsel’s cross-examination. Defendant argues questions that counsel could have asked more of Fitz Patrick, Bucs, attempt and Rucker “to to establish reasonable indicate, however, questions doubt.” He does not counsel what should asked would affected have and how answers have the verdict. object
Defendant also cites counsel’s failure to when Britt, manager apartment building Barbara J. lived, Texas in which defendant had testified that defendant painted apartment orange. object had did not Counsel when witness, Booker, processed another Tina that she said had going defendant for AWOL and he had later left a note for her at home. her orange apartment'was
Britt’s remark about defendant’s response question “any particular to a whether there was about Although reason” she remembered defendant. defense counsel object point, object did not at that he did to the next State’s problems question: you any Hightow- “Did other with Mr. have Britt objection. er?” The trial court overruled then told of problems rent-collection with defendant.
Assuming
portions
testimony
of Britt’s and Booker’s
objectionable,
objections by
we
not believe that
counsel
were
do
materially
followed
curative instructions would have
affect-
Thus
ed the verdict.
even if defendant could meet the first
*26
showing inadequacy of
test
prong of the Stricklcmd/Fritz
“prejudice” prong.
representation, he cannot meet the
remiss in not
also contends that counsel was
Defendant
Christopher Forston about their
questioning Irene Williams and
possible
their
relationships
defendant and about
strained
with
cross-examination, however,
had
Forston said that he
bias. On
close,
cordial,
relationship
Hightower. Counsel
riot
with
but
along those lines for
questioning Williams
may have avoided
testimony.
later
might
defendant’s
fear that she
contradict
testimony
Moreover,
did elicit
during the defense case counsel
Forston.
toward Williams and
defendant’s coolness
about
relationship
the
counsel told the
to consider
his summation
that it was
really quite
“it’s
clear
among the witnesses because
and Irene Williams
Christopher Forston
[Hightower],
Michelle
regarding the
strategic
The
decisions
against” Hightower.
ineffective assistance.
did not constitute
latter two witnesses
failure to
argues further
that counsel’s
Defendant
DeLorenzo,
had
the coroner who
Joseph
Dr.
cross-examine
fingerprint ex
Ottinger, a
autopsy,
Clyde
performed the
de
does
representation.
ineffective
Nowhere
pert, constituted
should have asked
questions counsel
suggest what
fendant
should have cross-examined
Ottinger. He asserts that counsel
conclusion that Barlieb
“speculative”
DeLorenzo about
her,
hit
and claims
the third shot
lying on the floor when
finding of
jury’s
in the
may
crucial
issue
have been
that the
c(4)(c).
concedes
Because
aggravating factor
retried,
moot.
point
is
must be
penalty phase
de
inadequate representation
example of
As another
objected
have
lawyer’s failure to
to his
fendant refers
during
taken of the victim
photographs
admissibility of three
in
pictures were
argues that those
autopsy. Defendant
record, however, does not
flammatory and cumulative.
“palpa
to a
amounted
photographs
that admission
show
Thomp
discretion. See State
of the trial court’s
ble abuse”
(1971).
-c- Sergeant made Defendant contends that Fitz-Patrick hearsay When asked about his an inadmissible statement. 20, 1985, early August Fitz during morning activities replied: Patrick August August had information 19th, the week of we received Well, 19th, to who was for the from several in the area as Philadelphia people responsible over to murder of Barlieb and on that information we drove based Cynthia handgun and it that had been used in the murder retrieve Philadelphia Street
was located at 668 Brooklyn Philadelphia. Hightower was At that time we were aware that Jacinto respon- person going to that retrieve the sible for the murder and when we were over area to gun, going he was we weren’t aware that to be the—in the present vicinity *27 the residence. statement, object the Defense counsel did not to that nor did defendant, According it. to counsel’s trial court comment on object grant to the trial failure to a mistrial failure сourt’s sponte sua are both reversible errors.
Defendant claims that Fitz-Patrick’s statement violated
right
v.
sixth-amendment
confront witnesses. See State
Bankston,
263,
(1973). In
this
63
-D-
regarding
last claim
ineffective assistance
Defendant’s
first
during
guilt phase
is the most serious. The State’s
Barlieb,
response
was David
the victim’s husband.
witness
that his wife’s
questioning, Barlieb testified
prosecutor’s
to the
30,
used that fact
prosecutor
The
birthday was
1959.
October
during
guilt phase:
concluding his summation
Hightower,
ladies and
Had it not been for
is
1986.
30th,
Joey
October
Today
old
is
gentlemen,
Barlieb would be
today. Today
twenty-seven years
Cynthia
her birthday.
object to that statement.
counsel did not
Defense
object
consti
considering whether counsel’s failure
Before
the issue of wheth
representation, we address
inadequate
tuted
convic
reversal of defendant’s
er the
itself warrants
statement
conduct must have
prosecutor’s
justify
“To
reversal
tion.
improper,
improper
and the
unmistakably]’
‘clear[ly] and
been
prejudice to the
in substantial
must have resulted
conduct
fairly assess the
right
to have a
fundamental
defendant’s
393,
Williams, 113 N.J.
his case.”
v.
persuasiveness of
State
45,
Bucanis,
(1988)
26 N.J.
452,
(quoting
The jury, tactic, impassion the plainly designed to His improper. high level of departure from glaring as a stands out the conduct of characterized that otherwise professionalism during this trial. the defense prosecution and both the birthday age and the victim’s “contain[ed] about statement determining the defendant’s jury in aid the nothing that would Williams, supra, 113 atN.J. innocence.” State v. guilt or *28 particularly prosecutor’s conduct was The A 2d 1172. 550 at the end of his summa- came the statement egregious because prone to emotion- capital case will be “Conceding any that tion. surely it is not too much testimony, giving displays by those al them- the court conduct that officers of require expect to jury’s improper appeals to resorting to selves without A2d 1172. 550 emotions.” Id. conduct prosecutor’s whether then becomes question case. We assessing defendant’s fairly jury from
prevented the disapproval, the strong for our although it calls that conclude 412 prejudicial
statement does not necessitate reversal. The com- long “largely ment came at the end of a summation that was Tirone, to a of the devoted fair review evidence.” See State v. 222, 229, (1974). Moreover, length N.J. A.2d trial, witnesses, strength the number of and the of the any prejudice. State’s case served minimize finding prosecutor’s Our statement did not substantially prejudice jury’s ability fairly to assess defen compels dant’s case the conclusion that defense counsel’s fail objected prejudice prong ure to have does not meet the test. Strickland/Fritz
-E- Having specific allega dismissed each of defendant’s attorney incompetence, reject tions of we now also his conten perceived together tion that those errors taken demonstrate during guilt phase. ineffective assistance of counsel Defen argues dant cumulative effect of counsel’s actions “[t]he allegiance left defendant without the undivided of a zealous case, disagree. advocate.” We Faced with a difficult defense attempted highlight counsel what few weaknesses there Although were in the State’s case. he did not cross-examine experts, attempted mitigate the State’s he the effect of eyewitness testimony by drawing discrepancies casting out Moreover, eyewitness accuracy. in doubt counsel elicited demonstrating by formation the bias of Williams and Forston by testimony cross-examination and the direct of defendant. allеgation thoroughly Defendant makes no that counsel did not investigate his case.
-F-
Finally,
briefly
we address
one issue not raised
Gerald,
40, 69,
defendant.
N.J.
absolutely nothing
support
that would
a
charge—which
why
murder
is doubtless
defendant does
argument.
complicity
Defendant denied
make
Gerald
murder,
testimony
so there is not
in his own
about
a word
victim,
only
“stop” his
see
how he intended
to wound or
State
210-11,
951,
supra, 119
at
574 A. 2d
nor would the
Coyle,
v.
N.J.
Forston,
shooting
at
gave
supra
version of the
that he
see
204-05,
951, provide
jury finding
for a
574 A.2d
rational basis
bodily injury
purpose
that defendant’s
was to inflict serious
212,
at
Coyle, supra,
rather than death.
v.
119 N.J.
See State
Defendant shot the victim with
chest,
neck,
range in the
and the head. The first
close
lodging in
narrowly missed the victim’s heart before
her
bullet
liver,
cord,
spinal
her
and the third shot
the second severed
lodged
penetrated the victim’s skull and
in her brain. After
her,
shooting
dragged the victim into the freezer.
defendant
argument
fully supports
prosecutor’s
in summa
The record
“intending
is
to kill
anyone
tion that
who commits such acts
kill her
person,”
that defendant “had formed
intent to
store,” and that the evidence “could
when he walked into that
that store with
you
only
lead
one conclusion: He went into
clerk so she
fully
it and execute the
formed intent
rob
* *
Here,
Pitts,
identify him
as
couldn’t
(1989),
virtually
“it would
‘inconceiv
-A-
that the trial court should
Defendant asks us to rule
him death.
jury
him to ask the
to sentence
to
not have allowed
right
argues
upholding
capital
in
a
defendant’s
to
He
Zola,
384, 428-32,
112
In Zola we tailored a narrow during personal jury” statement to the make “an unsworn 429, 2d 1022. decision penalty phase. 112 at 548 A. Our N.J. our grounds constitutional but on “what civiliza rested not on bespeaks declared that “it our tion commends.” Ibid. We sentenced to death humanity common that a defendant not be ” at never heard the sound of his voice.’ Id. jury ‘which 429-30, California, 402 (quoting 2d 1022 McGautha v. 548 A. 711, (1971), 183, 220, 1454, 1474, 28 733 L.Ed.2d U.S. S.Ct. 2873, 33 grounds, 408 92 S.Ct. vacated on other U.S. (1972)). L.Ed.2d exercising right, “permitted that narrow a defendant is not evidence, indeed, any deny guilt,
to rebut
facts in
expression
evidentiary
voice an
of remorse that contradicts
Requesting
facts.”
548 2d 1022.
Id.
N.J.
A.
a death
overstep any
guidelines. Although
sentence does not
of those
“mitigating”
such
in the
a statement is
sense that Zola’s
was,
proffered plea mercy
for
still it allows the
to see the
light
by legal requirements.
defendant
not encumbered
right
affording
may
opportunity
of allocution
be seen as
an
jury to
person.”
for the
learn about the “whole
capital
Our decision to allow a
defendant to ask for a death
*31
requirement
sentence does not contravene our
that his counsel
provide
mitigating
must
evidence of
circumstances even over
Koedatich,
225,
objection.
the defendant’s
In
112
State v.
N.J.
1017,
(1988),
denied,
813,
548 A .2d939
cert.
488
109
US.
S.Ct.
(1989),
required
102
provide
L.Ed.2d 803
we
a defendant to
evidence,
mitigating
citing
policy
several
reasons “based sub
stantially
in
penalty
on the State’s ‘interest
a reliable
determi
”
330,
(quoting
nation.’
112
People
N.J. at
Allowing request death sentence does not a defendant a any foregoing policies. jury contravene will still sentence, determining proper all in the have the evidence reviewing appropriateness record in we will have full that sentence. of the defendant’s a trial court becomes aware
When
sentence,
to ask for a death
it should follow
intention
Zola, supra,
outlined in
112 N.J. at
procedures we
that,
case,
431-32,
-B- During penalty phase quashed the trial court defen subpoena dant’s directed to a member of the State Parole parole-criteria testimony tie Board. Defendant intended to rehabilitation, concerning prospects statistical evidence for fu release, ture The trial court held that recidivism. testimony speculative given possibili proposed would be too ty changes parole criteria and that it would have no bearing character. The court told on th'e issue of defendant’s penalty inappropriate that if it found the death for this defendant, imprisonment thirty- life the sentence would be with years parole ineligibility. phase proffered by penalty Evidence a defendant at the must * * * record, “relevant to defendant’s character or
be
[the]
*32
Gerald, supra,
to the
of the offense.”
v.
circumstances
State
103,
2C:11-3c(5)(h)).
(citing
113
417 denied, sentence), ability life cert. ing to commute Governor’s (1985). 1119, 2367, 266 Those 105 86 L.Ed.2d 471 US. S.Ct. people speculation future actions of possibilities involve about defendant, resulting “interjection in the of an un than other thereby ren process, quantifiable factor into deliberation 442, 157, 207 arbitrary.” Id. at 689 P.2d at dering the decision 466, 487 (quoting Lindsey, v. 404 So.2d Cal.Rptr. at 812 State 261, denied, (La.1981), 464 104 78 L.Ed.2d cert. U.S. S.Ct. (1983)). parole and commutation prohibited This Court 246 death-penalty act. See Jersey’s New former testimony under 158, 177, (1958). White, 65 As the A. 2d v. N.J. State notes, testimony preclude does not exclusion of such State The trial prospects defendant’s for rehabilitation. evidence of correctly. court ruled lead us to conclude foregoing considerations also appropriately proffered excluded evidence
that the trial court
imposition of the death’
in the
concerning racial imbalance
against de
penalty. Specific evidence of racial discrimination
phase. Allega
during
penalty
might
fendant
be relevant
application of the death
pattern
discriminatory
tions of a
however,
bearing
character or
no
on defendant’s
penalty,
have
offense.
the circumstances of his
record or on
correctly
proffered
testi
court also
ruled
The trial
penalty
death
concerning
effect of the
mony
the deterrent
Rose,
576 A.2d
v.
N.J.
inadmissible. See State
146-47,
II,
Hightower 29.4 homicides It 100,000? to commit says that; per doesn’t it? A. Yes. age general And it as far is males concerned, as the Q. says population group according identified murders, to 24 who as the most to commit you prone 100,000? to this commit 12.6 homicides It doesn’t that; it? study, per says Yes, A. sir. Although point
At that
defendant moved for a mistrial.
it
motion,
any
denied the
the trial court struck from the record
“testimony having
percentage
do with the
of recidivistic
percentage
anything
homicides in
other
homicides
than
general population.”
The court
that the informa-
reasoned
courtroom,
“any place
tion did not have
in the
because of the
danger
being
danger
it
misapplied,
because of the
an
flare-up
Therefore,
on race.”
the court in-
emotional
based
disregard
testimony.
structed
prosecutor’s
questioning
Only
improper.
line of
one
inferences
from
possible
chain of
is
the cross-examination:
*34
male;
study
shows that black males
defendant is a black
whites;
do
defendant is
higher
a
rate of recidivism than
have
male;
merely
he is a black
likеly
again
to kill
because
more
weighs in favor of a death sentence.
defendant’s race
therefore
striking
entire line of
was correct in
The trial court
a factor in the
questioning. A defendant’s race should never be
sentence,
in a trial for a murder or
of a
whether
determination
penalty phase
must be
a traffic offense. Because
for
anyway, we need not rule on whether the cross-examina
retried
However,
that if in
ground for a mistrial.
we caution
tion was
to elicit statistical
party
capital
future a
in a
case seeks
might
have racial
testimony on direct or cross-examination
court,
jury’s
trial
out of the
implications, it must alert the
Davis,
As
noted in
v.
presence, about its intentions.
we
State
2,
(1984),
611,
the use of a racial
623 n.
-D- concerning the trial court’s alleges several errors Defendant mitigating circumstances. We aggravating of treatment charge arising from the in the not address those errors do in our decisions State that this trial occurred before fact 188, subsequent Ramseur, 2d 524 A. supra, N.J. heed that the trial court will death-penalty cases. We assume resentencing proceedings. in the them support does not contends that evidence Defendant c(4)(c). In we Ramseur finding aggravating circumstance to cover aggravating circumstance wantonly-vile narrowed applies to a murder The first class only types of murder. two cause, and did fact perpetrator “intended to in which the suffering to the cause, pain or physical psychological severe 524 A.2d death.” 106 N.J. prior to the victim’s victim murders,” type, “depravity refers to a murder 188. The second beyond pleasure purpose no for the defendant “served killing.” Ibid. support acknowledges that the evidence does not The State however, depravity argues, murder. It that the finding of a State, category. According to the murder falls within the first effort to terrorize the defendant’s first shot was “a deliberatе contends that the victim was severe victim.” agony following the first shot and that she was aware physical impending “her and certain death at defendant’s hands.” *35 Ramseur, opinion in the trial occurred before our Because analyze the trial court did not the evidence under our narrow c(4)(c). light In of the factual nature of that construction of issue, inappropriate us to determine it would be for whether c(4)(c) applicable here until the trial court has had a chance to is however, observe, do that the State
evaluate the evidence. We rationally provide must evidence from which the could missing in the beyond conclude a reasonable doubt that victim’s shot, kill by on his first defendant intended not to heart inches only her but to wound her. argues
Defendant that the trial court should not also c(4)(f), applies which charged aggravating have on circumstance detection, purpose escaping of to murder “committed for the trial, apprehension, punishment or confinement for another * * by the defendant or another Defen offense committed interpret only “prior that factor to cover dant asks us to Otherwise, contemporaneous offenses and not ones.” defen contends, c(4)(g) duplicate that circumstance would dant assault, arson, robbery, every involving murder a sexual bur glary, kidnapping. c(4)(f) disagree. wording imply The does not that it is
We legislature If had prior limited to offenses. the intended result, aggravating easily it could have made it clear. The depend timing nature of this circumstance does not gravamen aggravating “The of this underlying offense.
421 witnesses, for silencing which could be potential factor is the a crime committed being committed or for underlying crime 561, 569, Moore, 504 N.J.Super. another time.” State v. at Div.1985). occurs (Law fact that a murder A .2d 804 underlying crime does the witnessed contemporaneously with “The killing potential witness. mitigate the evil of not the other depend not on when of this factor should invocation occurred, silencing a the evil that attends but rather on crime 569-70, A. 2d 804. potential witness.” Id. quotes v. Mon- argument, defendant support of his (Law Div.1984), 317, 327,
turi,
Although analogous to 9—l(b)7 38, (repealed) em- Statutes, chapter paragraph Revised investigation: ongoing in an assistance a witness’s phasized 422 against defendant, the murdered individual was witness in a the prosecution investigation
gave to the state or material assistance in prosecution any against an witness or other material was evidence defendant, eye possessed the defendant. Legislature emphasis suggests that Illinois intended to That occurring in of The court exclude offenses the course murder. legislative supported that history in Brownell also noted however, interpretation. legislature, ex- that Our has not pressed a similar intent.
Furthermore, c(4)(f) narrowly our refusal as to construe in all requested by felony defendant does not mean that mur- duplicate c(4)(g). requisite that will ders circumstance c(4)(f) avoiding c(4)(g). not intent detection is involved enough to Thus “the mere fact of a death is not invoke this State, 19, (Fla.1979). 366 22 Riley factor.” v. So.2d The State present jury must evidence “from can infer that at which purposes motivating killing one of least defendant’s subsequent apprehension desire avoid detection and for Goodman, 1, 569, crime.” v. 298 N.C. 257 S.E.2d State (1979). previously support have held that the same evidence can
We
Rose,
aggravating
than
more
one
circumstance. State v.
su
526-27,
1058;
II,
pra,
supra,
548 A
v. Bey
N.J. at
.2d
State
175-77,
charge
We with defendant evidence for purpose taken to the murder cannot be used conceal c(4)(f). Monturi, proving aggravating supra, factor N.J.Super. (“post-murder 478 A.2d events and c(4)(f)”). attempts If a killer’s offenses no relevance have c(4)(f), conceal the were evidence of factor would murder type of does not apply to almost all murders. That conduct dispose potential intended to of a indicate that the murderer case, as the in this such facts defendant’s witness. Thus *37 wiping and his the blood into the freezer dragging the victim c(4)(f). of prove to the existence cannot be used off the counter V conviction, the death vacate murder affirm defendant’s We penalty- for a new sentence, to the Law Division and remand phase trial. except Part IV A. joins in all
Chief Justice WILENTZ opinion, separate filed a HANDLER has Justice part. in dissenting concurring part in and dissenting part. in HANDLER, J., concurring part and defendant, Hightower, K. for Jacinto convicted juryA related for several offenses Cynthia Barlieb and of murder trial, defendant Following penalty-phase the murder. for his conviction now affirms to death. The Court sentenced the death sentence. sets aside murder and well as death conviction as defendant’s I reverse would continuing my belief I do so because would sentence. 2C:11-3, as Act, is unconstitutional Capital Murder N.J.S.A. see the in this case enacted, construed, applied. I do not serve reasons that expanding on the repeating or necessity of Frisco, 118 N.J. See, v. Di e.g., State explain position. J., concurring and (1990) (Handler, 253, 284, 571 A.2d however, explain separately, dissenting part). I write to the These relate the Court. from points of difference other instructions, admissibility of homicide sufficiency of the counsel, prosecuto assistance hearsay, ineffective prejudicial aggravating validity misconduct, the constitutional rial case, and in this e(4)(f) applicability c(4)(c) and their factors penalty in the proffered certain evidence admissibility of the trial. phase of
I.
plain
pertaining
I would note as
error an issue
to the suffi-
ciency of the instructions of the homicide offenses.
It
is
impossible to discern from this record whether defendant was
purposely
knowingly causing
convicted of
or
pur-
death or of
posely
knowingly causing
bodily injury resulting
or
serious
Gerald,
40, 91-92,
death.
State v.
113 N.J.
The indictment in this
separate
case
with
felony-murder, robbery,
gun charges,
sepa
counts on
two
rate
culpability
counts that differentiated between the
states of
purpose
knowledge.
Neither the indictment nor the final
however,
charge,
jury
required
jury
separately
to consider
whether the homicide entailed the intent to cause death or the
bodily injury
intent to cause
resulting
serious
in death. Never
theless,
Court, relying
Pitts,
on its decision
(1989),
562 2d 1320
guilt
N.J.
A.
rules that no retrial of
is
412-413,
required. Ante at
The purposeful State’s was that the murder was or knowing felony rather than a murder in which death was an unintended result. with the Confronted State’s rendition of the homicide, predicated outright the defense was denial that Accordingly, defendant had committed the murder. defendant argument offered no evidence or to counter the State’s asser- purposeful Further, tion knowing. murder was position consistent with that someone else committed the murder, attempt defendant did not to show that the murderer bodily injury had intended to inflict serious rather than death. The of such evidence is absence understandable. Prior to the Gerald, clarification and refinement of the law effectuated point there in presenting might was no evidence that differenti- Gerald, ate between those forms of murder. Prior to either form of homicide capital constituted murder. jury ultimately determined that the murder had been
intentional, rejecting death-ineligible option finding de guilty felony think, however, fendant murder. I do not sufficiency supporting evidence the conviction on the greater charge should necessity determine the of a Gerald charge. Ordinarily, be, the determinative consideration should *39 Gerald, as the held in quantum support Court the of evidence lesser, ing Hunt, the serious-bodily-injury charge. State v. Cf. 330, 374-77, (1989)(conviction 115 N.J. 558 2dA. 1259 of death- eligible charge evidence, amply supported by the combined with rejection death-ineligible alternative, the of a indicated absence prejudice of where court did not instruct on other lesser charges evidence). supported by that could have been the
I capital-murder believe a defendant in prosecution should the complete range have benefit of the of homicide offenses to present be to able formulate and defenses that can focus on the important separate death-eligible distinctions that homicides from those that are process not. Consideration of due and impels fundamental fairness no less than I this. would thus guilt opportunity reverse the conviction to allow defendant the prepare proffer to possible all defenses and to adduce evidence, available, require if full-range that would of homi- presented jury. cide offenses to be to the
II. During guilt phase, Sergeant the Fitz-Patrick offered testi- mony statement, hearsay. that constituted inadmissible examination, during elicited the State direct is as follows: morning I Q sir, want direct attention to the Specifically your hours early August morning of 1985. Did have 20th, occasion to recall those you early hours? A I Yes, do. yes, significant is that you? Would to the why Q you explain August August information 19th, week of we had received 19th, A Well on responsible who was as to in the area from several for Philadelphia people Cynthia murder Barlieb on that information we drove over to and based of handgun that had been used in the murder and it retrieve the Philadelphia in Philadelphia. was located at 668 Street Brooklyn respon- Hightower person was the
At time we were aware that Jacinto that going murder and when we sible were over to that area to retrieve the for going gun, to be at the—in the of that he was present vicinity we weren’t aware added) residence____ (emphasis that statement constituted inad There can be no doubt that Bankston, 63 N.J. 307 A.2d hearsay. See missible Further, greater import, expressed it (1973). charged. guilty of the crime opinion that defendant was State’s (1989). Odom, 560 A .2d1198 Because See State v. 116 N.J. guilt directly to the ultimate issue of testimony related murder, unquestionably it rises to the level reversible capital error. Bankston, hearsay determined to be an offi this Court non-testifying testimony inescapably implied that a
cer’s
that the
would have
informant had told the officer
defendant
spe
possession,
though
even
the officer never
narcotics
repeated
the informer had said. The Court was
cifically
what
“may
hearsay testimony
well have been
“satisfied” that such
guilty
resulted in the
verdict” and
the decisive factor which
by a
was neither harmless nor cured
found that
error
*40
273,
cautionary jury
63
of this prejudice of its as assimilated under a traditional assessment Bey against totality of the evidence. See State v. measured J., 45, 105-23, (1988) (Handler, (I), 2d 846 112 548 A. N.J. standard, however, concurring). The adheres to the Court required if there exists a reasonable under which reversal is jury’s verdict. the error contributed to the doubt whether (1988). 454, 523-24, Rose, 1058 Even 112 548 A.2d State v. N.J. standard, A direct the error here is reversible. under that guilty is of the opinion statement of of the State that defendant murder, capital charged, engenders such a reason crime of as able doubt.
Moreover, right to pointedly implicates the this kind of error prosecution, an error of this jury capital-murder a trial. In a stan the barrier created the conventional caliber transcends ever countenance a review. In no case would we dard of direct law-enforcement witness with prosecutor or a State personal opinion that the knowledge expressing the facts extraordinary lengths ordi guilty. go is We defendant neutrality of preserve integrity nary criminal cases to 204, deliberations, 432 see, 87 jury e.g., Ingénito, State v. N.J. encouraging jury (1981), inadvertently 912 to avoid A.2d guilty, e.g., as v. prematurely to think of a defendant State 191, (1979), complete Simon, 861 to assure A.2d N.J. guilt, e.g., v. jury alone to determine State opportunity 117, (1982), prevent the court or Collier, 447 2d 168 90 N.J. A. guilt, e.g. opinion of defendant’s expressing from an the State (1989); 288, Vick, State v. 566 A.2d N.J. require the Odom, and to supra, 116 560 A.2d N.J. charges how proper no matter guilt to determine under *41 288, be, Vick, guilt may e.g., supra, 117 N.J. obvious State v. to honor 2d A failure abide and these strictures 566 A. 531. fatally jury, depriving role of the a defendant of weakens the by jury. We have no the right the trial should doubts about verdict, integrity jury process jury’s particularly and the the capital guilt a verdict of murder. error, significance presum the of this
The Court dismisses “juggernaut.” at ably, the State’s case was a Ante because If prosecution juggernaut 577 A. 107. was a 2d at sentence, inexorably imposition moved to the of the death giving the force of its evidence did not relieve the State from trial, affording opportunity have defendant fair the fullest guilt. jury—and I alone—determine would prosecution in capital-murder condone kind of error this event, ground. any would reverse on this I believe this error, errors, сollectively grave with other see discussion infra 428-442, 123-130, at justify 577 A. 2d would reversal Orecchio, 125, 106 defendant’s conviction. See State v. 16 N.J. (1954). A.2d 541
III. prosecutorial This ease also involves misconduct. The first Barlieb, appear witness for State was David the husband exchange During testimony, following of the victim. prosecutor: Mr. Barlieb occurred between and the What birth know? date, do Q [Mrs. Barlieb’s] you A October 1959. 30th, her at her death Which would have made the time of 26?
Q A Yeah. on a seemingly exchange
This innocuous took new dimension prosecutor closing argument during the when the concluded his guilt phase following trial with remark: Hightower, is Had for October 1986. it not been ladies 30th, Joey Today
gentlemen,
is
Barlieb would be
old
years
Today
Cynthia
twenty-seven
today.
her birthday.
*42
We have said:
...
the victim’s character has no
“[w]here
bearing
guilt
on the
penalty
substantive issue of
or the
to be
imposed,
prosecutor may
not comment on the evidence in a
only
manner that serves
highlight
to
the victim’s
in
virtues
jury.”
Williams,
order to inflame the
supra,
State v.
113 N.J.
393, 451-52,
(1988). Further,
550
justify
A.2d 1172
rever
“[t]o
prosecutor’s
sal the
‘clear[ly]
comments must have been
and
unmistakably]’ improper, and the
conduct must
improper
have
resulted in
prejudice
substantial
to.the defendant’s fundamental
right
jury
to have
fairly
persuasiveness
assess the
of his
452,
(footnote omitted);
Id. at
case.”
If the effect of that misconduct in the face strong countervailing guilt, appear evidence of does not reversal, require it must not be overlooked that the error prejudice arising from other trial errors. reinforces the error, opinion, my with that of prejudice from that combined others, justifies a reversal of defendant’s conviction.
IV. during the of counsel claims ineffective assistance Defendant argues phase trial. He that the State’s case guilt rea- subjected testing” expected from to the “adversarial main- attorney defense counsel performance sonable cross- evidenced the failure to tained “defeatist” attitude *43 witnesses; to adverse the failure zealously examine certain prejudicial improper questioning, irrelevant or evi- object to dence, closing prejudicial argument; in the and material State’s closing statements. The Court inadequate opening and and 404-412, rejects at 577 A.2d at notes and this claim. Ante 111-115. in this outright guilt by no counsel
There concession (11th Cir.1987) v. F. 2d 879 Compare Magill Dugger, 824 case. guilt capital (defense guilt during phase of counsel conceded 1190, (11th trial); 720. 2d 1193 Cir. Spraggins, Francis v. F. during 1983) (defense guilt expresses belief client’s counsel omitted); summation) (subsequent history Young v. guilt-phase Cir.1982) (11th (defense Zant, counsel concedes F.2d 792 677 (6th Sowders, F. 2d 642 guilt phase); Wiley at v. 647 guilt 656, denied, 1091, Cir.1981), 454 102 70 L.Ed.2d cert. US. S.Ct. Nevertheless, (1981). from the record that it is inferable 630 the guilty his client was that either that counsel believed gratuitous push to reasonably so conclude. This jury could guilt by the from the record impression was reinforced wards client, underscoring the from his that he had distanced himself undeserving of guilty or was impression that his client was defense. a determination
. That kind of conduct can be relevant
Balkcom, 684
In
is ineffective.
Goodwin v.
whether counsel
1098,
Cir.1982),
(11th
denied, 460
103 S.Ct.
U.S.
794
cert.
F.2d
1798,
(1983),
The concerns in
case
this
indirect
counsel’s
guilt
implied
unwillingness
concession
defendant’s
and his
represent
in conjunction
defendant must be considered
with
Strickland,
other
King
instances of ineffectiveness.
714
1481,
(11th Cir.1983),
remanded,
F.2d
vacated
(1984),
remand,
US.
S.Ct.
L.Ed.2d 358
(11th Cir.1984)
omitted),
(subsequent history
“any other Documents rent-payment difficulties with defendant. tell of bearing handwrit episode and defendant’s associated with that examples into and served as of ing were entered evidence handwriting expert of defendant’s for verification defendant’s purchase memorializing the form of the mur signature on additional weapon. testimony The of Ms. Booker included der 1985, July cash in and featured defendant’s lack of mention of by to that also given of a note her defendant the submission analysis. Defendant sample handwriting for ar served as testimony prejudicial elements that gues that that contained also discounts those should have been excluded. Court 408-409, 577 A. 2d 113-114. Ante at at contentions. 668, 689, Concededly, Washington, 466 Strickland v. U.S. 2052, 2065, 657, (1984), 80 L.Ed.2d 694 seeks 104 S.Ct. making preserve “the wide latitude counsel must have tacti decisions____” prevailing This stan constitutes our own cal counsel, Fritz, assessing State v. the effectiveness dard 42, (1987), apply capital-mur 336 which we 105 N.J. 519 A.2d Davis, 341, 356, 2d prosecutions. v. 116 N.J. 561 A. der (1989). and the nature Which witnesses cross-examine 1082 questions attorney zone of asked fall within this broad 1429, 2d 787 F. 1432- Snyder, United States discretion. See 134, (10th Cir.), denied, 836, 479 107 S.Ct. 93 33 cert. U.S. 1080, (11th (1986); 1090 Kemp, Messer v. 760 F. 2d L.Ed.2d 78 864, denied, 1088, Cir.1985), 88 474 US. S.Ct. L.Ed.2d cert. (10th Glick, (1986); 710 F.2d States v. United denied, 1005, 104 Cir.1983), 79 L.Ed.2d cert. 465 U.S. S.Ct. case, however, only (1984). does not entail This counsel. Counsel’s questionable tactical decisions defense standpoint strategy handling from the of the defense overall sufficient, inadequate. marginally grossly at worst was best role, attorney’s counsel’s Aside from this dimension totality by in its an attitude and performance was marked nothing case. There that undermined his client’s approach negative conduct or obvious about defense counsel’s blatant *45 and defendant, attitude towards but in context counsel did adversely reflect on his client’s cause.
The effect of performance defense counsel’s was that he indirectly conceded that murder, defendant guilty of sug- gested jury that the could find guilty murder, defendant indicated that he representing was not choice, defendant out of and impression created the that defendant had no defenses or was not entitled to a defense unworthy and was lawyer’s of a professional loyalty and services. In setting, this tactical de- fense independent decisions lose their significance. Defense comport counsel cannot himself or herself in this fashion in representing a fighting client who is for his or her life: Those circumstances counsel, demonstrate ineffective assistance of which augmented combined with and prejudice arising from other occurring throughout errors the trial materially and con- tributed to defendant’s conviction.
The difficult task of gauging a defendant’s constitutional
entitlement to effective assistance of
in capital-mur
counsel
prosecution,
der
exemplified
case,
in this
forcefully underscores
the need for a more exacting
protective
and
standard for
determining
sufficiency
performance.
of counsel’s
I reit
put
erate
I
Davis,
what
forward in
supra,
State v.
.sistance of counsel as a basis for reversal should be viewed realistically, fairly, sentencing This is in the so tolerantly. particularly trial. phase prejudice Such should be when counsel’s relates to the presumed inadequacy determining factors that a must consider not in the existence of facts only weighing but also their worth terms of whether the defendant comparative should live or die. *46 case, coupled representation in this with other
Defendant’s error, the warrants reversal of defendant’s conviction.
V. argues jury the of the instructions was Defendant that form properly fully aggravating to define the deficient for failure or further, charged and, aggravating that factors N.J.S.A. factors 2C:ll-3c(4)(c) c(4)(f) charged. and should not been have trial, aggravating jury
At found existence of factor the the vile, wantonly c(4)(c), outrageously or that murder was “[t]he torture, depravity or inhuman in that it involved horrible mind, the The trial aggravated or an assault to victim.” court for new trial on the that the rejected defendant’s motion basis against determination penalty-phase verdict and the were weight the evidence. agree that this case does not Both defendant and State c(4)(c). deрravity dispute element of The centers implicate the of defendant’s on whether there is sufficient evidence inten- suffering physical or mental to inflict the sort of extreme tion aggravated that indicates torture or assault. c(4)(c) emphasized interpretation in Ramseur
This Court’s question “[Ejxtreme physical of defendant’s intent: suffering precisely to mental must be what defendant wanted 208-09, 2d to death.” 106 at 524 A 188 occur addition N.J. omitted). emphasis (citations The on intent is evident continued concerning c(4)(c). See, in this Court’s most recent comments 635-37, 1320; Pitts, at 562 A. 2d e.g., supra, v. 116 N.J. State 1259; Hunt, 387-88, supra, v. 558 A.2d State N.J. State 191, 199-201, (1989). Matulewicz, 115 A .2d 1001 N.J. The contends that sufficient evidence of such intent State c(4)(c) jury. argues that place before the It exists testimony supports medical examiner of Forston by exemplify fired that the first two shots defendant conclusion argues aggravated torture or assault. intentional first killed the victim with the shot failure have her, intention further rein- an intention to terrorize an shows open sought failure to have the cash forced defendant’s having after shot the victim a second register himself until remained alive until points time. The State out that the victim hospital, regardless brought she was to the involved, impending of her death length of time her awareness this murder to the realm of being shot the first time elevates torture and deliberate execution. barely argues that the fact that the first shot
Defendant *47 contention that the victim’s heart belies the State’s missed suffering intended to inflict first two shots were defendant’s goes argue on to that all three than to kill. Defendant rather kill, thought the and that defendant were intended to shots dairy the case. dragged he her into victim was dead when there is no evidence of how points further out that Defendant intend or that defendant long or how much the victim suffered Hunt, supra, 115 at v. N.J ed that she suffer. See State J., 413-14, (Handler, concurring part in and 558 A.2d part). dissenting argument dur- overemphasized that the State’s
It cannot be shooting in the conflicts concerning defendant’s intent ing trial regarding argument appeal defendant’s directly its on with summation, prosecutor argued During guilt-phase the intent. entered kill from the moment he had intended to that defendant store; defendant’s shots were explicitly he stated that first resulting in bodily injury death to kill or cause serious intended summation, prose- penalty-phase At than to scare. rather raising the head as the act the third bullet to cutor described appeal, inhuman.” On of “vile and murder to the level this shots were the vigorously that the first two now contends State aggravated assault or tor- and inhuman manifestation of vile kill. ture, shot was intended to only the third while deficiency position illustrates Janus-faced The State’s c(4)(c), by refined factor both as aggravating in the inherent I then and renew applied. stressed and as Court Ramseur vague intractably and so my now concern that the standard was susceptible capricious that it and inconsistent malleable was application. exemplifies jury’s that A de- This case concern. that homicide the intentional infliction termination this involved gratuitous pain only speculation. It is of can be founded infer simply possible reliably beyond a reasonable surrounding the homicide that doubt from evidence itself allow a purposely defendant tortured his victim. To standards, instructions, conclude, and without firmer clearer evidence, killed more that a defendant in this manner and caprice—it put to is should be death exceeds arbitrariness pernicious. applicability differ over of
Defendant
the State also
c(4)(f),
aggravating
factor
whether
murder
commit-
“[t]he
trial,
detection,
purpose
escaping
apprehension,
ted
for the
punishment
or confinement for another offense committed
Rose, supra,
the defendant
another.” In
the Court
State
finding
support
held
evidence existed to
that sufficient
c(4)(f),
escape
police
that defendant shot a
officer to
detection
possession
531-32,
gun.
of a
437 killing prevent was to the victim informing police from testifying against 569-70, the defendants.” Id. at 504A .2d804. strongly
I that approach, believe the Monturi “prior” contemporaneous ones, offenses do not include is correct. differentiation, Without this any felony murder becomes a c(4)(f) situation because there rarely will be a case which it readily cannot be inferred that the murder accompanying the underlying felony accomplished for purpose of escap ing See, detection for the underlying felony. e.g., People v. Brownell, 508, 757, (1980) Ill.2d Ill.Dec. N.E.2d 181 (subsequent omitted); history Goodman, State v. 298 N.C. (1979). 257 S.E.2& 569
Moreover, as the majority acknowledges, evidence of actions taken to conceal a murder cannot purpose be used for the proving c(4)(f), aggravating escaping factor detection. State v. Monturi, supra, 195 N.J.Super. at (post- A.2d 1266 murder events and offenses have little or no relevance to c(4)(f)). majority correctly observes: c(4)(f), If a killer’s to conceal a murder were evidence of attempts factor
would
to almost all murders. That
apply
conduct does not indicate that
type
the murderer
intended to
of a
witness. Thus in this
such
dispose
potential
case,
dragging
wiping
facts as the defendant’s
the victim into the freezer
blood off the counter tend to
that he
to conceal the
prove
murder, not
attempted
c(4)(f).
and thus cannot be used to
felony,
the existence of
prove
[Ante
at 422-423,
Unless the governing admissibility standard and use of c(4)(f) prove evidence is clarified and only limited to mean prior itself, offense unrelated to the murder it fails to restrict properly exposed the number of who defendants will be to the
438 charge involving felony murder. Inevita-
death under a penalty inconsistency and engender level of bly will an intolerable this case, I hold In this would the standard unconsti- randomness. applied the death sentence on that tutional as and reverse ground.
VI.
concerning
significant issues
evidence
This case also raises
the
may
penalty-phase
that
offer in the
trial. At
a defendant
phase,
sought to
beginning
penalty
defendant
have
mitigation.
attorney
presenting evidence in
The
barred from
so,
Appellate
not do
Division found that defendant could
State
(App.Div.1986).
N.J.Super.
214
518
482
Hightower,
v.
A.2d
request
court
to
the
trial
nevertheless allowed defendant
penalty through
death
the exercise of allocution.
argues
allowing
request
now
him to
death in
Defendant
that
agree.
error.
I
this manner constituted reversible
This Court
accuracy, reliability,
policy
has
the
concerns of
and
embraced
sentencing
enjoin
pre
proportionality in
that
defendant from
Zola,
presentation mitigating
venting the
evidence. State v.
Koedatich,
384, 428-32,
(1988);
A
N.J.
548 .2d
327-32,
Allowing
supra,
We are committed to community, conscience of the to determine whether defendant underlay deserves to die. That in commitment our decisions (I), (1984),denying State v. Koedatich 98 N.J. 489 A .2d659 capital appeal a murder defendant’s motion to dismiss the of his sentence, (II), in supra, conviction and and Koedatich N.J. 939, in 548 A. 2d which we held that the failure to present mitigating phase capital- penalty evidence at the of a murder trial constituted error. The determination of reversible capital extraordinarily a life or death sentence in a case is an judgment. delicate and sensitive We have been mindful that jury’s judgment impose penalty whether to the death must carefully guided clearly and circumscribed. While norma be values, judgment in such a tive effect and reflective of societal should, reasoned, possible, objective, the extent be principled. simply permit jury It is intolerable to is poised defendant should live or die to be to determine whether jostled by personal the defendant’s that he or she should belief cannot, hand, put be to death. We on the one insist on and, other, death-penalty structured decisions on the allow a die, reason, destroy defendant’s desire to for whatever Allowing put a defendant to ask to be to death can structure. integrity jury’s decision to execute the defen taint the case, dant, never, can in such a know whether such a we tips critical factor that the balance in death wish fact is the differently, death. if the would not have favor of Stated in the of defendant’s to execute the defendant absence voted wish, imposed. not sentence should be death a death view, correctly capital- my extended to the Court Zola right only to enter a of allocution murder defendants mercy. “mercy” is on a personal plea for The notion of based logical encompass relevance to perception that does sys- engrained is in a civilized jury’s penalty Mercy decision. plea justice. It does not follow that because tem criminal *51 determination, sentencing a “mercy” capital in for is allowed wish also be allowed. death should Moreover, simply place to and possible it is credence reliability psychological death The reasons in such a wish. unfathomable, and, feeling such are more con- behind often unreliability vincing, exemplified the of such a death-wish is minds, v. change e.g., the fact that often their State defendants Koedatich, fact, changed In in case has supra. this defendant encompasses that the Any dignitary his mind. other interest is at right “mercy” an definition of choose alternative the heart of allocution does not overcome the constitutional consistency penalty meted out mandate that the death be with of uniformity judgment and the reflection of the as ultimate expressed through society jury the verdict. subpoena
During penalty phase, sought also defendant parole to testify a member of the State Parole Board about testimony intended tie that to statistical criteria. Defendant release, concerning prospects rehabilitation, evidence for future testimony and recidivism. The trial as too court disallowed parole speculative given possible changes criteria and also as too distant from the issue of defendant’s character. concerning trial court also disallowed statistical evidence arbitrary penalty the non-deterrent effect of the death imposition penalty the death Defendant of minorities. con rulings rejects claims those were error. The Court those 416-417, 2d at tentions. Ante at 577 A. 117-118.
441
curiam),
Davis,
611,
(1984) (per
96
Sentencing
non-capital cases
parole.
governing
that can
considerations
information
include
331,
(1989);
Lark,
567 A. 197
See,
v.
2d
e.g., State
N.J.
113,
(1988);
Bd. v.
Howard,
2d 1203
Parole
110 N.J.
539 A.
(1983);
Applica
2d 103
re Parole
93 N.J.
460 A.
Byrne,
(1982).
is no
2d 104
There
446 A.
ofTrantino,
N.J.
tion
removed
why
be
principled reason
such information should
capital
In deter
sentencing
in a
case.
determination
from the
sentencer,
judge,
whether
mining mitigating factors
*52
will
kind of rules
and consider what
be able
know
should
he or
of an offender when
to measure
“rehabilitation”
serve
that such
parole
for
to assess
likelihood
eligible
she is
surely as
information is
be released. Such
defendant will
bearing on the
evidence
germane
probative as statistical
Davis,. supra, 96
See State v.
conduct
defendant.
future
617,
Some in Although of such inappropriate. introduction as mutation constitutional may compromise defendant’s formation 3446, 992, 1014, 103 Ramos, S.Ct. v. 463 U.S. rights, California (1983), many exclude such 1171, courts 3460, 1179 77 L.Ed.2d speculation about it an element of testimony introduces because 442 defendant, future action of individuals other than resulting “interjection
in the unquantifiable of an factor into the delibera process, tion thereby rendering the decision arbitrary,” People Ramos, v. 136, 152, 37 Cal.3d 430, 439-40, 689 P.2d 207 Cal.Rptr. Quick State, 800, (Cal.1984). See 780, 256 Ga. 786, 497, (1987). Indeed, 353 S.E.2d Jersey New case law prior to White, N.J.S.A. 2C:11-3 adhered to that view. State v. 27 N.J. 158, 177, (1958). Nevertheless, 142 A 2d 65 in State v. Davis, supra, 611, Zola, N.J. 477 A.2d 308, and State v. supra, 112 N.J. .2dA our Court clearly had taken a different direction—from departs. which it now I would of Davis and Zola and find that evidence path follow the admissible.
VII. reasons, For these several I would reverse defendant’s con- guilt viction of capital murder and his death sentence. I accordingly part concur in with part and dissent from the judgment. Court’s
Chief Justice joins WILENTZ portion of Point VI which would bar a seeking defendant from penalty. a death affirmance;
For vacated and reversal—Chief Justice CLIFFORD, HANDLER, WILENTZ and Justices POLLOCK, O’HEARN, GARIBALDI and STEIN—7.
Opposed—None.