THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACINTO K. HIGHTOWER, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued November 6, 1995—Decided August 8, 1996.
680 A.2d 649 | 146 N.J. 239
Linda A. Rinaldi, Deputy Attorney General, argued the cause for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
In State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990), this Court affirmed the 1986 capital murder conviction of defendant, Jacinto K. Hightower, but reversed his death sentence and remanded the matter for a new penalty-phase proceeding. At the second penalty trial, defendant was again sentenced to death. Defendant presently appeals that sentence pursuant to
The facts and procedural history of this case are fully set forth in Hightower. See Hightower I, supra, 120 N.J. at 386-99. Thus, we limit our recitation to only the facts and history relevant to this appeal.
Shortly after 12 p.m. on July 7, 1985, during the course of a robbery in a Cumberland Farms convenience store, defendant shot the clerk, Cynthia Barlieb, in her chest after she refused to comply with his demands to open the cash register. After falling to the floor as a result of the gun shot wound, Barlieb stood up, cried out and again refused to comply with defendant‘s repeated demands to open the cash register. Defendant shot Barlieb again, this time in the neck. While Barlieb laid on the floor, she touched defendant‘s leg. Defendant then shot her in the head. At 12:40 p.m. a customer discovered Barlieb‘s body in the store‘s dairy freezer.
Defendant was indicted for purposeful murder by his own conduct, contrary to
In October 1986, the jury found defendant guilty on all counts of the indictment. During the penalty trial, the State asked the jury to consider three aggravating factors: (1) “[t]hе murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim,”
The defense, on the other hand, produced six expert witnesses, and submitted five mitigating factors to the jury: (1) “[t]he defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution,”
On November 10, 1986, defendant was sentenced to death after the jury found that the State had proven each of the aggravating factors beyond a reasonable doubt. Although the jury determined that defendant had established two mitigating factors,
On appeal, this Court reversed the death sentence because the Attorney General conceded that the trial cоurt erroneously charged the jury to consider only those mitigating factors found to have been unanimously established. State v. Hightower, supra, 120 N.J. at 386.
II
Jury selection for the new penalty trial was conducted between September 12 and October 24, 1994. Thereafter, a seven-day trial ensued. The State relied on two aggravating factors: murder to
The only testimony presented by the State was that of Christopher Forston who had also testified at the guilt trial. Forston testified about a conversation that he had with defendant after the Cumberland Farms murder in which defendant voluntarily told Forston how he had committed the crime. Forston testified that defendant told him “he had killed a woman in a store because she wouldn‘t cooperate with him.” According to Forston, defendant had recounted the crime as follows. Defendant entered the Cumberland Farms carrying a tote bag and waited for the customers to leave. He then picked up a box of Pampers, set it on the counter, walked to the door, turned the “open” sign to “closed,” returned to the counter and asked the clerk for a pack of cigarettes. As the clerk turned her back and reached for the cigarettes, defendant pulled a gun out of his tote bag and demand-
Additionally, Forston testified that defendant told him that after the first shot, the clerk fell to the floor but got back up hollering and refused defendant‘s second request to open the register. Defendant then shot her in the neck. The woman fell to the floor again. Defendant jumped over the counter and began to bang on the cash register because he did not know how to open it. When he felt the clerk grab his leg, he shot her in the head and left the store.
At the conclusion of Forston‘s testimony, defense counsel moved to dismiss the aggravating factor, murder to avoid apprehension,
The jury commenced its deliberations on October 31, 1994, at 3:15 p.m. After deliberating for approximately one hour, the jury recessed for the day. The trial court collected from the foreperson the verdict sheet on which the jury had made some notations, as well as other notes, and seаled them in an envelope. The following morning, the jury reconvened at 9:15 a.m. to continue its deliberations. After approximately six and one-half hours of deliberating, over a two-day period, the jury submitted the following note to the court:
[I]t has come to our attention that one of the jurors has information and knowledge about this case beyond the scope of the evidence given in Court. We ask your direction in regard to this matter.
Notwithstanding the judge‘s instructions, the jury foreperson disclosed during the interview that Juror Number 7 had informed the jury that he had heard, outside of the courtroom, that the victim had three children. Describing the context in which Juror Number 7 made the statement, the foreperson explained:
There was a fairly intense debate going on at that point in time where [Juror Number 7] was taking a different position than some of the other people, and there was a fair amount of frustration from some other people about the position he was taking, and essentially he was ... getting backed into a corner ... and he was almost lashing out.
The foreperson‘s account of Juror Number 7‘s statement and the circumstances surrounding it were confirmed by several other jurors. Indeed, Juror Number 7 admitted in his interview making that statement about the victim having children. He stated that he had overheard that statement while he was shopping in a store earlier in the week. He pointed out, however, that he did not partake in the discussion.
At the conclusiоn of the interviews, despite the trial court‘s efforts to avoid learning the jurors’ positions on the merits of the case, the position of Juror Number 7 had been disclosed by both Juror Number 7, and the foreperson. For example, at one point during his interview, the foreperson stated that Juror Number 7 “was taking a different position than others in the room.” Additionally, in responding to a question from the trial court, Juror Number 7 explained:
I told them I thought that he should get 30 years imprisonment instead of the death sentence because it seems by his time in prison he could be a productive citizen when he come out. Now, majority of them jumped me for that.... Well, they said, you must have heard something we didn‘t hear, and I says, all I
overheard—I didn‘t discuss this with no one—was that the lady had three children....
Interviews with other jurors also revealed that Juror Number 7 may have engaged in other misconduct, namely, dishonesty in responding to questionnaires completed during the jury selection process. The specific act of dishonesty alleged was that the juror failed to disclose that he opposed the death penalty and that he had visited prisons in the past.
Finally, during the interviews several jurors told the trial court that at the time Juror Number 7 informed the jury that the victim had children, the jury had reached a rather advanced stage of deliberations. One juror indicated that he had already made up his mind when he learned of the information; another revealed that the jury had already taken a straw vote; and the foreperson stated that the jury was at a “fairly late point” in its deliberations. In addition, the verdict sheet indicated that the jury had made tentative determinations with respect to the existence of both aggravating factors and all mitigating factors. The only section of the verdict sheet left unmarked was that reserved for the jury‘s ultimate conclusion with respect to the sentence.
Having all this information, the trial court then heard arguments from the State and defense counsel, outside the presence of the jury, regarding how to resolve the jury crisis. The State recommended that the court remove Juror Number 7 from the jury, insert an alternate, and instruct the jury to begin deliberations anew. Defense counsel, on the other hand, insisted that the appropriate remedy was a mistrial, or in the alternative, that deliberations should continue with Juror Number 7 on the jury because
Agreeing with the State, the trial court rejected defense counsel‘s request and ordered that Juror Number 7 be removed from the jury and replaced with an alternate. In denying the application for a mistrial, the court reasoned that it had no conclusive information concerning the positions of any of the jurors, except
After the judge‘s ruling, an alternate juror was selected and the entire jury was instructed to continue its deliberations. The judge cautioned the newly-constituted jury that it was to “totally disregard” the outside information revealed by removed-Juror Number 7, and begin its deliberations anew. The court provided the new jury with a blank verdict sheet, retaining the former verdict sheet and notes in a sealed envelope. The reconstituted jury recommenced delibеrations on November 2, 1994, at 11:03 a.m. Four and one-half hours later, the jury returned a verdict of death.
A poll of the jury confirmed that it had unanimously concluded, beyond a reasonable doubt, that both aggravating factors existed, namely, murder to avoid apprehension,
After the verdict was received, defense counsel requested that the court question the foreperson to determine the stage that the jury had reached in its deliberations when the new juror was substituted. Defense counsel also requested that the court seal and preserve the original jury‘s verdict sheet and notes for use on appeal. The trial court denied the first, but granted the second motion. We unsealed the verdict sheet pursuant to an order dated June 7, 1995. The sheet revealed that the first jury had tentatively found both aggravating factors and had made tentative findings on all of thе fourteen mitigating factors. The sheet did not indicate, however, whether the jury‘s vote was final, whether the aggravating factors outweighed the mitigating or whether the jury would impose the death penalty or life imprisonment.
III
Preliminarily, we reject defendant‘s claim that the New Jersey Death Penalty Act (Act) violates the Eighth Amendment to the United States Constitution. In State v. Biegenwald, 126 N.J. 1, 594 A.2d 172 (1991), this Court upheld the constitutionality of the Act in the face of equivalent challenges. Id. at 16; accord State v. Harris, 141 N.J. 525, 574, 662 A.2d 333 (1995); State v. Moore, 122 N.J. 420, 486, 585 A.2d 864 (1991); State v. Hunt, 115 N.J. 330, 373, 558 A.2d 1259 (1989); State v. Koedatich, 112 N.J. 225, 249, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L. Ed.2d 803 (1989); and State v. Ramseur, 106 N.J. 123, 185-90, 524 A.2d 188 (1987). In addition, the constitutionality of the aggravating factor,
Defendant argues that
If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. [
R. 1:8-2(d) .]
Despite the rule‘s broad language, trial courts do not have unbridled discretion to reconstitute deliberating juries in the face of a jury crisis. On the contrary, the removal rule may be used only in limited circumstances. Clearly, frequent reconstitution of deliberating juries could destroy the integrity and the mutuality of deliberations, thereby depriving defendants of the right to a fair trial by an impartial jury. The “mutuality of deliberatiоns” is at the core of jury deliberations. It entails the joint or collective exchange of ideas among individual jurors that remains intact until a final determination is reached. State v. Corsaro, 107 N.J. 339, 349, 526 A.2d 1046 (1987). Mutuality may be destroyed if juror substitution is not made in accordance with the limited scope of the rule for removal. Ibid.;
The rule permits substitution of an alternate when the deliberating juror dies, becomes ill “or is otherwise unable to continue.” These are, of course, precisely the circumstances mandating substitution of a juror during the trial itself. Because they relate exclusively to the personal situation of the juror him [or her] self and not to his [or her] interaction with the other jurors or with the case itself, they are ordinarily not circumstances having the capacity to affect the substance or the course of the deliberations. Hence the continuation of the trial with a substituted alternate is in these circumstances no way violative of defendant‘s right to trial by a fair and impartial jury. In this respect the “unable to continue” standard is much narrower than the concept of good cause requiring the discharge of prospective jurors before trial commences. “Good cause” in that context includes potential juror bias which would irremediably taint the entire jury, particularly in its deliberative process. Removal of such a juror after trial has commenced and even more particularly after deliberations have commenced cannot ordinarily repair the harm already dоne or presumed to have been done. Juror bias discovered during deliberations is clearly, therefore, not a circumstance susceptible to the discharge and substitution technique of the rule. Declaration of a mistrial would be the only available alternative.
[State v. Trent, 157 N.J. Super. 231, 239, 384 A.2d 888 (App.Div.1978), rev‘d on other grounds, 79 N.J. 251, 398 A.2d 1271 (1979).]
Although the death and illness standards are clear and narrow, the “inability-to-continue” standard, at first glance, appears vague and rather broad. That standard, however, must be narrowly construed and sparingly applied. State v. Valenzuela, 136 N.J. 458, 468, 643 A.2d 582 (1994); State v. Trent, supra, 157 N.J. Super. at 240.
Some of the questions concerning the narrow scope of the inability-to-continue standard were clarified in Valenzuela, in which the Court stated that to remove under the standard
the record [must] adequately establish[] that the juror suffers from an inability to function that is personal and unrelated to the juror‘s interaction with the other jury members. If a court suspects that the problems with the juror are due to interactions with other jurors, the court should instruct the jury to resume deliberations.
Conversely, the standard may be invoked to remove a juror when the record reveals that the juror‘s emotional condition renders him or her unable to render a fair verdict. E.g., State v. Miller, 76 N.J. 392, 406-07, 388 A.2d 218 (1978) (holding that removal of juror was warranted when juror‘s nervous and emotional condition renders him or her unable to render fair verdict); State v. Trent, supra, 157 N.J. Super. at 240 (finding that removal of juror was warranted when juror suffered from severe emotional and physical distress that made it impossible for juror to continue).
Under the facts and circumstances presented in this case, we hold that thе trial court improperly expanded the scope of
We note that the Appellate Division recently revisited the issue of juror substitution under the inability-to-continue standard. In State v. Holloway, 288 N.J. Super. 390, 402-03, 672 A.2d 734 (App.Div.1996), there was no objection to juror substitution because of juror misconduct that occurred after extensive deliberations. The lack of objection and the court‘s finding that the misconduct did not taint the remaining jurors distinguish Holloway, however, from our analysis in the present case. See id. at 404-05. In State v. Singleton, 290 N.J. Super. 336, 675 A.2d 1143 (App.Div.1996), a deliberating juror was excused under the inability-to-continue standard because the juror‘s religious views, among other things, interfered with his ability to reach a verdict. Id. at 345-46. The Appellate Division found that the juror was improperly removed because of her interactions with other jurors. Id. at 349-50. Singleton is consistent with Valenzuela.
V
Defendant claims that because an alternate juror was improperly substituted for Juror Number 7, he was deprived of a non-unanimous verdict notwithstanding that juror‘s misconduct.
A non-unanimous verdict in the penalty phase of a capital case is a final verdict of life imprisonment without any further exposure to a death sentence.
The cases relied on by defendant to support his assertion that he was deprived of the opportunity of а non-unanimous verdict fall into two categories. One group is based on the assumption that the jury was deadlocked. The other group focuses on whether the
-A-
There are three so-called jury-deadlock cases. In DiFrisco, after the jury had deliberated in a penalty trial for approximately four hours, it sent a note to the court advising that it had reached a verdict. State v. DiFrisco, supra, 137 N.J. at 481. As the court was about to receive the verdict, the trial court asked the foreperson whether the verdicts were unanimous. Ibid. When the foreperson answered no, and another juror indicated that the jury had not unanimously found the existence of an aggravating factor, the jury requested that it return to the jury room. Id. at 481-82. The court ordered the jury to resume its deliberations. Id. at 482. After further deliberations, the jury imposed the death penalty. Id. at 483.
This Court rejected an argument that defendant was deprived of a non-unanimous verdict. The Court concluded that despite the jury‘s note and its report to the trial court that its verdict was not unanimous, requiring the jury to deliberate further was proper because the jury was not deadlocked. Id. at 485.
In Hunt, the jury sent a note to the trial court stating that it could not reach a unanimous decision on whether a mitigating factor outweighed an aggravating factor. State v. Hunt, supra, 115 N.J. at 378. This Court held that because the trial court failed to inquire of the jury whether its note “stated its verdict or whether the jury wanted more time to deliberate” before requiring further deliberations, and because the jury was not reminded that a non-unanimous verdict was acceptable, defendant was deprived of a realistic possibility that the death sentence would not have been imposed. Id. at 378-79. This
In Ramseur, after the jury had deliberated in the penalty phase for four and one-third hours, the court received a note from the jurors stating, “Jury unable to reach a unanimous decision. Suggestions please.” State v. Ramseur, supra, 106 N.J. at 301. Over defense counsel‘s objection, the court gave an “Allen charge,” as modified by State v. Czachor, 82 N.J. 392, 401-02, 413 A.2d 593 (1980) (reminding jurors of their duty to consult with one another in reaching a unanimous verdict and urging dissenting jurors not to compromise for the purpose of achieving unanimity), and required further deliberations. After being instructed to attempt to reach unanimity two additional times, the jury imposed the death sentence. State v. Ramseur, supra, 106 N.J. at 302. This Court held that the trial court did not abuse its discretion in failing to declare that the jury was deadlocked when the note was submitted to the court. Id. at 302-04. Nevertheless, the supplemental charges were found to be coercive because the trial court did not reinform the jury of the consequences of a non-unanimous verdict. Id. at 305.
Accordingly, under Ramseur, if a jury reports to the court that it is unable to reach a unanimous verdict after about four hours of deliberations, the court is not obligated to declare the jury deadlocked. A trial court is permitted to require a jury to deliberate for a reasonable length of time before declaring a deadlock. Id. at 302-03; State v. Czachor, supra, 82 N.J. at 407. What constitutes a reasonable amount of time is influenced by the length of the trial and the complexity of the penalty issues. State v. Ramseur, supra, 106 N.J. at 303.
The penalty trial in the present case involved the difficult determination of whether the killing during the course of a robbery was to avoid detection or apprehension,
robbery aggravating factor and five mitigating factors. In addition, the jury had to assess the defendant‘s mental state and decide whether mitigating factors outweighed aggravating factors. State v. Ramseur, supra, 106 N.J. at 303, 524 A.2d 188.
When the juror misconduct occurred in the present case, the jury had deliberated no more than six and one-half hours. Although Juror Number 7 apparently wished to impose a life sentence, there is no reasonable basis to assume that the power of persuasive argument would not have ultimately resulted in an uncoerced unanimоus verdict for the death sentence. In DiFrisco, Hunt, and Ramseur, the question of whether the jury was deadlocked was precipitated by a note from the jury or a comment by the foreperson to the trial court. In the present case, however, there was no communication from the jury to the court that remotely suggested deadlock. Rather, it was the unsolicited remarks of jurors concerning the misconduct of Juror Number 7 that ignited the issue. Prior to that misconduct, the jury was continuing its deliberations without any suggestion that it had reached a genuine stalemate. Neither a genuine stalemate nor a jury‘s verdict is final until announced in open court. Further, when a verdict is reached, it is not final until confirmed by a polling of the jury unless waived. State v. Shomo, 129 N.J. 248, 259, 609 A.2d 394 (1992); 4 Charles E. Torcia, Wharton‘s Criminal Procedure § 578 (12th ed. 1976).
A defendant is entitled to a non-unanimous verdict only when the jury is deadlocked after deliberating a reasonable time. Although in the present case the jurors had taken a straw vote and voted on the aggravating and mitigating factors before learning that the victim had children, there is nothing in the record to suggest that the jury would have been unable to reach a unanimous verdict concerning defendant‘s sentence. Indeed, the record establishes that the jury was in the midst of deliberations when Juror Number 7 engaged in misconduct involving the other jurors. As one juror noted, an intense debate was ongoing when Juror Number 7 revealed the extraneous information. Additionally, the
Furthermore, it is not uncommon for jurors to take several votes during the deliberative process, particularly an initial vote to determine each juror‘s position at the outset. See State v. Levitt, 36 N.J. 266, 269, 176 A.2d 465 (1961) (noting that jury took three votes before reaching its ultimate determination, with first vote taken one-half hour after jury began deliberating). Additionally, no litmus test can bе devised for determining what is a reasonable time for deliberating. Lengthy deliberations are not uncommon during the penalty phase of a capital case. This Court has acknowledged that because the issues before the jury are so complex, deliberations of more than ten hours may be inadequate to reach a final conclusion on the appropriate sentence. State v. Ramseur, supra, 106 N.J. at 303, 524 A.2d 188.
We conclude, as did the Court in DiFrisco and Ramseur, that defendant was not deprived of a non-unanimous verdict because the jury had not reached a final verdict and was not deadlocked before the juror misconduct occurred.
-B-
Very few cases have addressed the issue whether a jury has deliberated too far to permit replacement of a deliberating juror with an alternate juror.
Since the 1972 amendment to
In Valenzuela, within two hours after the jury commenced its deliberations, the court dismissed a juror because the juror was unable to deliberate in a coherent manner, and substituted an alternate. State v. Valenzuela, supra, 136 N.J. at 466, 643 A.2d 582. The reconstituted jury was instructed to begin work anew. Ibid. Although the Court held that the juror substitution was improper because it was based on the excused juror‘s interactions with other jurors, id. at 472, 643 A.2d 582, it declined to discuss whether the jury deliberations had advanced too far to permit a substitution. Id. at 473, 643 A.2d 582.
In State v. Moore, 113 N.J. 239, 550 A.2d 117 (1988), the Court held that if an alternate is substituted at the beginning of the penalty phase of a death penalty trial, then guilt need not be deliberated anew. Id. at 306-07, 550 A.2d 117. The Court grоunded its holding in the Legislature‘s intent to allow for bifurcated guilt and penalty trials where necessary. Id. at 306, 550 A.2d 117.
Corsaro, deals with whether a jury that has returned guilty verdicts against the defendants on some of the counts in an indictment may be reconstituted to consider other charges when one of the deliberating jurors returned to the courtroom intoxicated and more than one hour late. State v. Corsaro, supra, 107 N.J. at 341-42, 526 A.2d 1046. That juror was dismissed and replaced with an alternate; the newly constituted-jury was instructed to begin your deliberations anew with respect to the open charges that you are considering. Id. at 344, 526 A.2d 1046. Guilty verdicts were returned on all the remaining charges. Id. at 345, 526 A.2d 1046. The defendants sought new trials on the grounds that a mistrial should have been granted when the intoxicated
In State v. Trent, 79 N.J. 251, 398 A.2d 1271 (1979), after the jury had deliberated approximately six and one-half hours, one of the jurors was replaced due to illness. Id. at 253, 398 A.2d 1271. The alternate juror was also replaced almost immediately. Id. at 254, 398 A.2d 1271. The jury was not instructed after either substitution to begin the deliberations anew. Id. at 253-54, 398 A.2d 1271. The Court reversed the conviction upon finding that the trial court had erred in failing to instruct the reconstituted juries to commence deliberations anew. Id. at 256-57, 398 A.2d 1271. Trent, however, did not address whether the jury‘s deliberations had advanced too far.
In Miller, after the jury had deliberated for approximately one and one-quarter hours, one of the jurors asked to be dismissed because he was too nervous and his nervousness affected his judgment. State v. Miller, supra, 76 N.J. at 401, 388 A.2d 218. Defendant‘s request for a mistrial was denied and one alternate juror was substituted. Id. at 401-02, 388 A.2d 218. Like Trent, the Court did not discuss whether the jury‘s deliberations had advanced too far.
From the few cases that have discussed whether the jury had deliberated too far to permit substitution pursuant to
VI
Defendant argues further that although removal of Juror Number 7 was not an available option under
This Court has consistently held that the essence of a fair trial requires the securing and preservation of an impartial jury, neither tainted by prejudice nor exposed to extraneous influences, even those judicial in nature. State v. Bey I, 112 N.J. 45, 75, 548 A.2d 846 (1988); State v. Corsaro, supra, 107 N.J. at 346-47, 526 A.2d 1046. The United States Supreme Court requires that a jury‘s verdict be based on evidence received in open court, not from outside sources. Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L. Ed. 2d 600, 613 (1966). Trial courts have been required to protect jurors and their deliberations from outside influences that threaten to taint the verdict. State v. Bey I, supra, 112 N.J. at 75-76, 548 A.2d 846. The need to protect the integrity of the deliberative process in a capital case was summarized in Bey I:
We have explained that the securing and preservation of an impartial jury goes to the very essence of a fair trial.... [This right] is of exceptional significance.... [T]riers of fact must be as nearly impartial as the lot of humanity will admit.
Of particular significance herе is that aspect of impartiality mandating that the jury‘s verdict be based on evidence received in open court, not from outside sources. As expressed by Justice Holmes, [t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. We recently noted the long-standing nature of this Court‘s commitment to the [p]reservation of the jury‘s independence from extraneous—even judicial—influences. The Court has consistently required trial courts to protect both jurors
and their deliberations from illegitimate influences that threaten to taint the verdict. [Id. at 75, 548 A.2d 846 (alterations in original) (citations omitted).]
When a jury is exposed to extraneous information after deliberations have begun, a mistrial will almost always be required. State v. Kociolek, 20 N.J. 92, 96-97, 118 A.2d 812 (1955). In Kociolek, a jury convicted the defendant of murder and sentenced him to death after it learned during deliberations, from some jury members, that defendant had been indicted on charges of assault and battery in an unrelated matter. Id. at 94, 118 A.2d 812. The trial court attempted to shield the jury from the information concerning the unrelated indictment by instructing the jury to render a verdict based only upon evidence presented inside the courtroom. Id. at 95-96, 118 A.2d 812. Reversing the trial court‘s decision to deny the defendant‘s motion for a new trial, Justice Brennan, writing for this Court, stated:
[T]he intrusion of the [unrelated indictments] into the jurors’ deliberations, standing alone, introduced illegal and extraneous evidence fraught with peril for the defendant, an action the more grievous because taken in disregard, actually in defiance, of the explicit instructions of the trial judge. Since the law would have allowed a new trial if such extraneous prejudicial matter was erroneously admitted in evidence at the trial, it cannot tolerate the defeat of justice which would result from the indefensible exclusion of the juror‘s testimony as to the incident, where the matter came into the jurors’ deliberations despite the commendable effort of court and counsel to prevent the mishap, and the jurors considered it, in violation of the court‘s instructions and of their oaths.
In this case defendant contends that even if the jury was properly reconstituted, a mistrial was nonetheless required because the jurors were exposed to prejudicial victim impact evidence, to wit, that the victim had three children. The revelation of that information, defendant insists, inevitably affected the eleven jurors who had been in favor of a death sentence before learning of the evidence, influenced them to adhere to their views and return a death sentence after learning of the evidence.
Allowing victim impact information to be placed before the jury without proper limiting instructions has the clear capacity
Juror misconduct that causes a substantial likelihood that one or more jurors were impermissibly influenced is enough to undermine the integrity of a death penalty trial without consideration of actual prejudice. That is so because each juror‘s vote is decisive, given that each juror must individually determine both the existence of mitigating factors and whether the aggravating factors outweigh the mitigating ones. State v. Bey II, 112 N.J. 123, 161, 548 A.2d 887 (1988) (citing Mills v. Maryland, 486 U.S. 367, 374-77, 108 S.Ct. 1860, 1865-66, 100 L. Ed. 2d 384, 393-95 (1988).
The impact that improperly introduced victim impact evidence has on a jury is difficult to gauge. We observe that the trial court‘s questions were not framed to detect whether the jurors were influenced by the extraneous information. For example, the trial court asked one juror if he would be able to continue to decide the case according to [his] best judgment. The court asked another juror with [Juror Number 7] having said that, does that create any problem with you about going ahead and continuing to decide this case or continuing to get to wherever point you all can get? If one or more of the jurors were already leaning in the direction of a death sentence and were further convinced by Juror Number 7‘s comment, then those jurors could have honestly answered the questions without ever indicating any effect that Juror Number 7‘s misconduct had on their judgment.
The potential for prejudice stemming from the kind of victim impact evidence Juror Number 7 introduced into the case was
Even if the victim impact information that was improperly placed before the jury could be properly introduced in evidence pursuant to the recently enacted statute, codified at
Thus, the jury‘s exposure to the victim impact evidence in the present case could have, in all likelihood, affected the result. Because the stakes are so high in a death penalty trial, where serious juror misconduct occurs, prejudice will be presumed. Accordingly, we hold that the introduction of victim impact information into the jury‘s deliberation in the present case had the clear capacity to prejudice defendant. We find that the trial court abused its discretion in denying defendant‘s application for a mistrial.
The standard governing the grant of a new trial is the same for a mistrial. Any juror misconduct or improper intrusion into the deliberations of a jury that could have a tendency to
VII
Next we address defendant‘s argument that the trial court erred in submitting the murder-to-avoid-apprehension aggravating factor to the jury because there was insufficient evidence to support a finding that the factor existed. See
The murder-to-avoid apprehension factor focuses on the reason that a defendant killed his or her victim. It requires prоof that [t]he murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another.
the State has produced sufficient evidence on which a jury can reasonably conclude that at least one of the motives of the defendant in killing his or her victim was to
eliminate a witness or avoid subsequent apprehension and prosecution for criminal acts. Such evidence may be either direct or circumstantial. [State v. Martini, supra, 131 N.J. at 282-83, 619 A.2d 1208 (emphasis added); accord State v. DiFrisco, supra, 137 N.J. at 501, 645 A.2d 734.]
Applying that standard to the evidence produced by the State in the present case, we hold that the trial court properly found that there was sufficient evidence on which the jury could conclude that at least one of the motives for defendant‘s killing of the victim was to eliminate a witness or avoid apprehension. The following evidence bolstered a finding that the c(4)(f) aggravating factor existed: (1) after entering the store, defendant waited for the few customers inside to leave before committing the crime; (2) defendant turned the store sign from open to closed after all of the customers had exited the store to preclude other customers from entering; (3) defendant fired the first shot within inches of the victim‘s heart; (4) defendant fired the second shot after the victim began to holler; (5) defendant fired the third shot into the victim‘s brain; and (6) the robbery was committed during the day. Although we do not reject the possibility that one of the reasons defendant shot the victim may have been because he had become angry and frustrated due to her lack of cooperation, we find a substantial rational basis in the evidence for a reasonable jury also to infer that the defendant shot the victim so she would not live to testify as a witness against him or to assist the State in apprehending and prosecuting him.
We do, however, agree with defendant‘s argument that the jury charge on the c(4)(f) aggravating factor was insufficient in light of the c(4)(g) felony murder aggravating factor. We need not, however, address the issue of whether the charge was so deficient as to require reversal. On the retrial, the trial judge must properly instruct the jury regarding this aggravating factor. Further, we remind trial courts that when essentially the same evidence is used to support both the c(4)(f) and c(4)(g) aggravating factors, the guidelines set forth in Bey II must be followed and the jury must be warned not to double count evidence. State v. Hightower, supra, 120 N.J. at 422, 577 A.2d 99; see State v. Rose,
VIII
We vacate defendant‘s death sentence and remand to the Law Division for a new penalty trial.
HANDLER, J., has filed a separate opinion concurring in part and dissenting in part, Point I of which O‘HERN, J., joins.
HANDLER, J., concurring in part and dissenting in part.
Defendant, Jacinto Koger Hightower, whose conviction for murder has previously been affirmed by this Court, State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990) (Hightower I), now appeals from the sentence of death imposed by a jury at his resentencing trial. The facts of the crime are reported in some detail in this Court‘s opinion on defendant‘s previous appeal, and in the majority‘s opinion.
Hightower‘s jury was on the verge of returning a verdict that would have resulted in a sentence of life imprisonment when the trial court intervened and removed the one juror poised to resist a death verdict. The juror had engaged in misconduct—he communicated extra-record information concerning the victim to the deliberating jury. I concur with the majority‘s conclusion that the trial court abused its discretion by removing that juror and reconstituting the jury with a substitute juror because the deliberations had proceeded too far. Because the information prejudiced only defendant, the Court‘s conclusion that the trial court should have declared a mistrial, and that as a rеsult of the failure to declare a mistrial, defendant must, for a third time, be exposed to the death sentence is draconian. Other options were available to the court in dealing with this form of misconduct. The court could have allowed the juror to remain on the jury or direct a verdict of a life sentence. Not having done either, defendant irretrievably lost the opportunity of a final non-unanimous verdict and the
I dissent from this case for another reason. The majority concludes that the evidence below was sufficient to support an aggravating factor, c(4)(f), which involves a murder committed to avoid apprehension. To sustain that determination the majority has so stretched the meaning of c(4)(f) that it can be applied arbitrarily to virtually any felony murder.
I
A.
The facts relating to the juror misconduct issue are as follows:
On the second day of jury deliberations, at 2:55 p.m., the trial court announced receipt of the following note from the jury:
Judge, it has come to our attention that one of the jurors has information and knowledge about this case beyond the scope of the evidence given in Court. We ask your direction in regard to this matter.
At the time the note was written, the jury had already spent approximately six and one-half hours deliberating. The court suspended deliberations and then proceeded to explore the nature and scope of the problem through individualized voir dire of the jury.
During the court‘s questioning of the jury foreman, several significant facts came to light. First, the court learned that Juror Number Seven told the rest of the jury that he had heard that the victim had three children. The foreman further explained the context that provoked Juror Seven‘s revelation:
There was a fairly intеnse debate going on at that point in time where [Juror Seven] was taking a different position than some of the other people, and there was a fair amount of frustration from some other people about the position he was taking, and essentially he was—if I can characterize, he was getting backed into a corner, so to speak, or something like that and he was almost lashing out. This is the way that I read it, and saying, look, I know stuff.
Juror Number Seven told the court that he overheard the information while food shopping earlier that week. He denied discussing the case with anyone, and even stated that he refused to speak about the case when approached by his son. Juror Number Seven explained the reason for his disclosure. He said:
I told them I thought that he should get 30 years imprisonment instead of the death sentence because it seems by his time in prison he could be a productive citizen when he comes out. Now, majority of them jumped me for that.... Well, they said, you must have heard something we didn‘t hear, and I says, all I overheard—I didn‘t discuss this with no one—was that the lady had three children....
From the foreman, the court and counsel learned the true extent to which Juror Seven was alone in his view of the appropriate penalty. The foreman stated:
Let me give you a little bit fuller context and trust that I guess I can do that. [Juror Seven] was taking a different position than others in the room.... And it‘s frustrating to me because he has a point of view that deserves to be on the jury, and what I‘m—what I‘m afraid of is that if—jumping to a conclusion here that he might be removed or replaced with an alternate or something like that, that his point of view gets lost.
The court also discovered that jury deliberations had reached a very late, if not conclusive stage at the time of the interruption. From the colloquy at the close of the previous day‘s deliberations it was apparent that the jury had entered the decision-making stages because it had already begun to mark the verdict sheet. During the course of the questioning the foreman explained:
We have conducted a great jury deliberation and it‘s—and it‘s frustrating to me that at this—which was a fairly late point in our deliberation that this came out.
Juror Number Two further hinted at the advanced state of deliberations when, in answer to a question about whether the information that the victim had children would affect him, he replied [a]s far as I‘m personally concerned, no. I made up my
Significantly, counsel for the defense twice requested that the court inquire of the foreman as to what stage in the deliberative process the jury had reached when the information was revealed and once requested that the court poll the jurors individually as to their capacity to start deliberations anew with a substitute juror. The court refused to undertake those inquiries, expressing confidence in the jury‘s ability to restart its deliberations and to disregard its past conclusions as well as the irrelevant victim-impact evidence. The court thus denied the defense motion for a mistrial, and removed Juror Number Seven from the jury.1 Juror Number Seven was replaced with an alternаte juror, and the eleven old and one new jurors were told to begin deliberations anew.
The reconstituted jury commenced deliberations the following morning at 11:03 a.m. At 3:30 p.m., the jury returned a verdict sentencing Hightower to death. The new deliberations lasted four and one-half hours.
By Order, this Court unsealed the first jury verdict sheet. The markings on the sheet indicated that the jury had found both aggravating factors and had made findings on all of the fourteen mitigating factors. The only section of the sheet left unmarked
B.
Extreme restraint and caution must be employed whenever a court acts in a fashion that might alter or influence jury deliberations. In State v. Corsaro, 107 N.J. 339, 526 A.2d 1046 (1987), the Court explained that [i]n light of the centrality of jury deliberations to our criminal justice system, errors that could upset or alter the sensitive process of jury deliberations, such as improper juror substitution, ‘trench directly upon the proper discharge of the judicial function.’ Id. at 347, 526 A.2d 1046 (citing State v. Harper, 128 N.J. Super. 270, 278, 319 A.2d 771 (App. Div.) (citation omitted), certif. denied, 65 N.J. 574, 325 A.2d 708 (1974)).
The majority correctly concludes that the trial court‘s decision to remove Juror Number Seven was an abuse of the court‘s discretion because the reasons for removal were not exclusively personal circumstances as required by
Generally, when a juror has committed misconduct but removal and substitution is not a viable option, a trial court may consider either retaining the juror and providing a curative instruction, or declaring a mistrial. The court should apply the least drastic remedy, and the remedy which would least infringe on a defendant‘s right to a fair trial. As the majority correctly notes, in a capital cause, a court must be extremely cautious in guarding a defendant‘s fundamental right to fairness. Because of the unique circumstances in the present case, the majority‘s conclusion that a
A mistrial is warranted if juror misconduct could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court‘s charge. Panko v. Flintkote Co., 7 N.J. 55, 61, 80 A.2d 302 (1951). The majority holds that any irregularity [in the deliberative process] is presumptively prejudicial. Ante at 267, 680 A.2d at 663 (emphasis added) (citing Corsaro, supra, 107 N.J. at 346, 526 A.2d 1046 (citation omitted) (noting that errors of juror substitution are cognizable as plain error); State v. Auld, 2 N.J. 426, 432, 67 A.2d 175 (1949)). The majority also highlights that this standard must be strictly observed in the unique context of a death-penalty case where the stakes are extraordinary. Unfortunately, the majority does so only on an abstract level, ignoring the context and atmosphere that surrounded the deliberations of this jury when the misconduct arose.
In all cases, however, it is necessary to be mindful that a mistrial is an extreme remedy that should be invoked only as a last resort. Not only does a retrial result in a great expenditure of time, money, and judicial resources, State v. Lipsky, 164 N.J. Super. 39, 43, 395 A.2d 555 (App. Div. 1978), but, in a capital prosecution when the jury is poised to return a verdict that would result in a life sentence, the remedy itself becomes a life-or-death decision.
C.
A mistrial was neither the necessary nor the appropriate remedy in this case. The jury was not irremediably tainted as a result of its exposure to the collateral extra-record information and Juror Number Seven‘s conduct did not mandate his removal from the jury. Most significantly, prior to the introduction of the extra-
The trial court itself felt very strongly that the jury was sincere in reporting its ability to continuе its deliberations. After conducting individualized voir dire of each juror regarding his or her ability to continue, the court concluded that the jury could resume deliberations without considering the improper disclosure of victim impact information. The inference is clear that the jury was not tainted by the extra-record information.
The trial court should have determined, though, that if a curative instruction was sufficient for the jury, it was also sufficient for Juror Number Seven. Juror Number Seven demonstrated that he had, in fact, disregarded the extra-record information. Indeed, the only juror for whom the trial court had direct proof as to whether the information had an effect is Juror Seven. Knowledge that the victim was survived by children, when combined with all the victim-impact inferences engendered by that fact, militates, if at all, toward the imposition of the death penalty. Juror Seven was, however, convinced that Hightower should be sentenced to life. Therefore, it is clear that the information to which Juror Seven was exposed did not manifestly affect his analysis of any of the issues before the jury.
Nor did Juror Seven‘s behavior amount to misconduct compelling his removal from the panel. This was not a traditional case of juror misconduct. Juror Seven overheard the information, he did not seek it out. The trial court did not find that the juror discussed the fact with others outside of the court. There is no evidence, nor did the court find, that the disclosure was deliberate or premeditated. Rather Juror Seven blurted out the statement as a result of difficult interaction with fellow jury members, in an improper but not ill-motivated attempt to defend his position. The disclosure was impulsive and intemperate, not calculated or designed. The pro-life juror did not reveal facts to sabotage the deliberations, but was actually defending his views by asserting the strength of his conviction despite his knowledge of extra-
State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), is instructive in exploring the scope and the importance of the right to a life verdict. In Ramseur, the Court recognized that the Legislature contemplated three possible final verdicts in a capital case: a unanimous verdict for death, a unanimous verdict for life, and a non-unanimous verdict that results in a life sentence. Id. at 301, 524 A.2d 188. The Court held that fundamental fairness requires courts to respect even the potential opportunity for a non-unanimous jury.
After four hours of deliberation, Ramseur‘s jury advised the trial court that the jury was unable to reach a unanimous decision. Suggestions please. Ibid. The Court in Ramseur held that the note did not necessarily indicate a deadlocked jury. Rather, in seeking direction, the jury communicated that it could continue. However, the Court was aware of a strong potential for deadlock. The Court suggested that the trial court should have explored with the jury whether it had deliberated sufficiently and had reached a genuine stalemate, a point at which further deliberations would have been counter-productive. Id. at 304, 524 A.2d 188. The trial court, however, made no attempt to discover whether further deliberations would be helpful. Rather, the trial court immediately gave an Allen charge. Id. at 305, 524 A.2d 188 (citing State v. Czachor, 82 N.J. 392, 402, 413 A.2d 593 (1980) (citing State law grounds and disapproving of traditional Allen charge); Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L. Ed. 528 (1896)
The trial court in this case faced a situation that paralleled that of the trial court in Ramseur: (1) the court was faced with strong evidence of the jury‘s unwillingness to bring in an uncoerced unanimous verdict for the death sentence, id. at 313, 524 A.2d 188; (2) the trial court did not inquire into whether the jury had reached a stalemate or whether further deliberations would be helpful; and (3) error by the trial court prevented the court from discovering the effect of further deliberations.
Here, there are strong indications that the jury would not have been unanimous. As a result of the voir dire, the trial court knew that Juror Number Seven was poised to vote for life. Moreover, the court knew that Juror Number Seven was forcefully committed to that position. The court also knew that many, and possibly all of the other jurors had already made up their minds to return a death sentence. Indeed, the court was warned that if Juror Seven was removed from the panel, his point of view gets lost. The court also knew deliberations were at a late stage and that the jury was experiencing great frustration with the strong-minded Juror Number Seven‘s commitment to advocate for life.
When a communication from the jury indicates that it may have reached a stalemate, a trial court should ascertain whether further deliberations would be helpful to the jury. See State v. Hunt, 115 N.J. 330, 380, 558 A.2d 1259 (1989) (citing Lowenfield v. Phelps, 484 U.S. 231, 240, 108 S.Ct. 546, 552, 98 L. Ed. 2d 568, 579 (1988)
In analyzing whether the initial jury had reached a non-unanimous verdict, the majority‘s opinion poses a foundational question drawn out of Ramseur and subsequent cases: Would further deliberations help the jury reach an uncoerced unanimous decision. Ante at 258-60, 680 A.2d at 658-59. In this case, the trial court had the unusual advantage of knowing who the holdout was. As a result, its inquiry into whether the power of persuasive argument had run its course need not have been overly abstract. Indeed, several comments made by Juror Number Seven and other members of the jury quite directly addressed the question of whether Juror Seven, the holdout, had reached an honest conviction as to the weight or effect of the evidence that further deliberations were unlikely to alter. State v. Czachor, 82 N.J. 392, 405 & n. 4, 413 A.2d 593 (1980) (recommending use of ABA Model Charge in criminal trials).
It is not necessary to establish, as the majority suggests, that Juror Number Seven would never have changed his mind. Such a burden could not be satisfied. More to the point, that burden need not be satisfied. Rather, we recognized the appropriate standard in Ramseur and subsequent cases: whether to justify the discontinuance of deliberations there was a substantial likelihood, that a non-unanimous verdict would have been re-
The majority‘s attempts to reconcile and distinguish Ramseur are not convincing. First the majority argues that the trial court did not abuse its discretion in determining that the original jury did not deliberate for a reasonable amount of time prior to reaching a deadlock. Ante at 258-59, 680 A.2d at 658-59. The majority points to the complexity of a trial involving the
The majority also relies on the fact that, unlike in Ramseur, there was no note or direct admission of deadlock. Rather, the majority argues that the evidence was suggestive of continuing, intense debate. Ante at 258-60, 680 A.2d at 658-59. The distinction is unavailing. Although the issue of deadlock did not arise from an independent communication from the jury, there was actually more compelling evidence of deadlock here than in Ramseur. Aside from Juror Number Seven‘s plain statement in favor of imposing a life sentence, the strongest evidence that Juror Seven was emerging as the lone voice in support of a life sentence appears in the foreman‘s comment that Juror Number Seven “has a point of view that deserves to be on the jury, and I‘m afraid
The record is replete with additional evidence that deliberations had proceeded very far. The fact that jurors were still debating the issue is not necessarily indicative of the fact that minds were not made up or a decision was not reached. If Juror Seven was the only vote for life, and he was continuing to attempt to persuade the others to change their minds, serious debate would consequently follow.
Comments made by other jurors suggest that Juror Seven had, like Juror Number Two, made his decision, and would not be persuaded by any further argument to change his mind. Juror Number Ten, for example, stated that he had the impression that Juror Seven “pretty much had his mind made up” at an early stage of the discussions. The record demonstrates that jurors were “taking positions,” that at least one juror other than Juror Seven had made up his mind, and that there was frustration at the position Juror Seven was taking. Therefore, there is a substantial likelihood that further deliberations would not have helped this jury reach uncoerced unanimity.
The jury had demonstrated a substantial likelihood of a non-unanimous verdict. The court was obligated to further investigate this potential. The absence of investigation in combination with the strong evidence that Juror Number Seven could have successfully remained on the jury, dictate that this Court must respect the potential for a life sentence as it did in Ramseur. Defendant may not, on remand, be exposed to the death penalty.
II
The Court in this case endorses an expansive interpretation and application of the
This is not the first time that I have written about the dangers inherent in a broad reading of
The majority‘s finding of sufficient evidence to support the
A.
We have been over the facts many times: State witness Christоpher Forston testified that soon after the murder, defendant described the crime to Forston. Defendant went to the Cumberland Farms store in Willingboro, New Jersey, just before noon on July 7, 1985, intending to commit a robbery. Defendant lingered in the store for a brief period until all of the customers left. Defendant then approached the sales counter, placed a box of Pampers on the counter, and asked for a carton of cigarettes. When the sales clerk, Cynthia Barlieb, turned away to get the cigarettes, defendant turned the store‘s open sign to closed and pulled out his gun. He demanded that Ms. Barlieb open the register. When she did not, he shot her in the chest. Ms. Barlieb fell, but then got back up. Defendant again told her to open the cash register. Ms. Barlieb again refused and “hollered or made a movement.” Defendant shot her again, this time in the neck. Defendant then jumped over the counter and attempted to open the register himself. Unable to do so, he ordered Ms. Barlieb to show him how the machine opened. Forston testified that “she wouldn‘t show him so he kept messing with it and he ... started getting mad, and he jammed the cash register and he shot her again.” The third shot hit Ms. Barlieb in the head. Forston testified further, that in response to Forston‘s question as to why defendant had killed Ms. Barlieb, defendant answered that he had done so because “the old bitch wouldn‘t cooperate.”
The record reveals little credible evidence supporting the argument that in killing Barlieb defendant was motivated by a fear of future identification. First, defendant did not know Cynthia Barlieb. Moreover, while defendant‘s parents resided several blocks from the convenience store, defendant spent most of his time in Texas and Philadelphia. Nor did defendant attempt to
The majority points to six aspects of the evidence in finding sufficient proof of the
Significantly, there is compelling evidence that defendant killed Ms. Barlieb for another reason: she was not cooperating. Each shot occurred after a repeated request to gain the assistance of the clerk. Only when she refused to cooperate did defendant shoot her. On the other hand, the State‘s basis for the
Although the United States Supreme Court has found that death is a constitutional punishment under the
Thus, “[t]o pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Lowenfield v. Phelps, supra, 484 U.S. at 244, 108 S.Ct. at 554, 98 L. Ed.2d at 581 (quotation and citation omitted). One method of guiding the jury‘s decision making process, approved by the Supreme Court in Gregg, and adopted by the New Jersey Legislature and this Court in Ramseur, is through statutory aggravating and mitigating circumstances focusing the jury on the character of the defendant and the nature of the crime. Gregg, supra, 428 U.S. at 192-95, 96 S.Ct. at 2934-35, 49 L. Ed.2d at 885; Ramseur, supra, 106 N.J. at 197, 524 A.2d 188. This sentencing structure “pass[es] constitutional muster, [because it]: limit[s] imposition of the penalty to what is assumed
Under our capital sentencing scheme, then, aggravating factors provide constitutionally necessary guidance for jury and prosecutorial discretion in determining for whom the penalty of death is the appropriate sanction. Because of the vital limiting role of the aggravating factors, the factors themselves must be sufficiently clear and precise. A vague or overly broad factor simply becomes a mask for unfettered sentencing discretion; it cannot effectively control, direct, or limit that discretion. The United States Supreme Court instructs that the test for the breadth of an aggravating factor is not whether the factor, on its face, can be interpreted too broadly, but whether the factor, as interpreted by the supreme court of the state, is sufficiently narrow. Gregg, supra, 428 U.S. at 201, 96 S.Ct. at 2938, 49 L. Ed.2d at 890 (noting that the “outrageously or wantonly vile” aggravating factor can be construed to incorporate any murder, but finding no evidence that the Georgia Supreme Court would adopt such a broad interpretation).
The
As noted by the majority, the Court has previously embraced expansive interpretations of the factor. First, the Court has held that the factor may include cases in which the crime that the defendant seeks to conceal is contemporaneous with the murder
The concern over double-сounting of evidence is highlighted where, as here, the
To ensure that the
The Court can preserve the
The majority‘s unsound and unexplained departure from our commitment to fairness and consistency in death-penalty convictions is highlighted by comparing the present adoption of a broad reading of the
The Ramseur Court faced a challenge to the
Therefore, the Court painstakingly delineated each term of the factor, including “torture” and “depravity of mind.” The Court also defined and emphasized the need for both purposeful and knowing commission of the factor, providing clear examples of boundaries that trial courts were to respect. Wary of the fact that intent often must be demonstrated with circumstantial evidence, and that mere speculation could not provide a finding of a factor of such import beyond a reasonable doubt, the Court held that “pain in fact” is required to establish the existence of the factor. Therefore, the Court held that the death penalty could not be imposed “where no pain was suffered despite the murderer‘s intent to inflict it ... [because the State could not tolerate] discretionary findings and death sentences based on the slimmest of evidence.” Id. at 208, 524 A.2d 188. “[T]he extreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death.” Id. at 208-09, 524 A.2d 188. The Court further limited the factor to require both a knowing and
Yet, in contrast, the Court today indifferently accepts a standard for the avoid apprehension factor that allows that factor to be raised in all felony murder cases. Some restrictive applications may be imposed by individual courts, prosecutors, or juries in given felony murder cases. But that type of unprincipled application and unguided discretion “allows arbitrary and discriminating enforcement of the laws by police, judges and juries.” Id. at 201 n. 27, 524 A.2d 188. A limitation that is random, unstructured, and unprincipled is not sufficient, in a system demanding guided discretion, to ensure constitutional administration of the gravest sanction for the most serious of crimes.
C.
Study of previous rulings by this Court regarding the sufficiency of the evidence supporting the
For example, in past cases affirming the
The steps that defendant took to avoid apprehension, including his eluding police after picking up the ransom money, also shed light on his motive for the murder. True, as defendant argues, everyone who commits a felony seeks to avoid detection. Standing alone, those circumstances may not support application of the factor. However, when a jury views those circumstances along with the victim‘s familiarity with defendant, it could reasonably infer that the defendant firmly intended to escape and that the elimination of Flax was essential to the fulfillment of that objective.
[Ibid.]
The need for further narrowing is additionally supported by decisions of other jurisdictions. For example, many courts refuse to allow evidence that the victim was able to observe the defendant, in and of itself, to support the avoid apprehension factor. See, e.g., People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 331-32, 691 P.2d 994, 997-98 (1984) (finding argument that murder was committed to avoid apprehension was “totally speculative” where defendant hitchhiked a ride with victim, took victim to a remote location, shot victim, and drove away with his car); Hansbrough v. State, 509 So.2d 1081, 1086 (Fla.1987) (holding that “the mere fact that the victim might have been able to identify her assailant is not sufficient to support finding this factor“); State v. Williams, 304 N.C. 394, 284 S.E.2d 437, 455-56 (1981) (requiring direct evidence of motive to avoid apprehension and finding insufficient evidence of motive where defendant killed convenience store clerk and attempted to escape in an inconspicuous fashion), cert. denied, 456 U.S. 932, 102 S.Ct. 1985, 72 L. Ed.2d 450 (1982); Commonwealth v. Daniels, 537 Pa. 464, 644 A.2d 1175, 1179 (1994) (requiring direct evidence to support the avoid apprehension factor and holding that the State‘s burden “will not be met by simply showing that an individual who witnessed a murder or other felony commit
Courts in other states frequently require the production of very focused evidence of intent to eliminate a witness in order to justify submission of such a factor to the jury. See, e.g., Hannon v. State, 638 So.2d 39, 43-44 (Fla.1994) (holding that “when a murder victim is not a police officer, ‘[p]roof of the requisite intent to avoid arrest and detection must be very strong.’ “) (quotation omitted), cert. denied, --- U.S. ---, 115 S.Ct. 1118, 130 L.Ed.2d 1081 (1995). Exemplary of the specific kind of evidence offered in support of the analogous aggravating factor in other states is evidence that a defendant removed the victim to a remote location before the killing, see, e.g., Preston v. State, 607 So.2d 404, 409 (Fla.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1619, 123 L. Ed.2d 178 (1993); Munson v. State, 758 P.2d 324, 335 (Okla.Crim.App.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L. Ed.2d 809 (1989); that a defendant killed or attempted to kill more than one person who witnessed an underlying offense, see, e.g., Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, 234 (1987), cert. denied, 484 U.S. 917, 108 S.Ct. 269, 98 L. Ed.2d 226 (1987); Hannon, supra, 638 So.2d at 43-44; State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891 (1977), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L. Ed.2d 158 (1977); State v. Green, 321 N.C. 594, 365 S.E.2d 587, 595-96 (1988), cert. denied, 488 U.S. 900, 109 S.Ct. 247, 102 L. Ed.2d 235 (1988); that a defendant was acquainted with the victim, see, e.g., Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, 427 (1990), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L. Ed.2d 231 (1991); Riley v. State, supra, 366 So.2d at 22; State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 726 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L. Ed.2d 157 (1987); Roberts v. State, 868 P.2d 712, 722 (Okla.Crim.App.), cert. denied, --- U.S. ---, 115 S.Ct. 158, 130 L. Ed.2d 96 (1994); or that the victim attempted to escape during the crime
D.
The majority‘s error stems from its deficient interpretational definition of the
The majority‘s definition, however, is woefully incomplete. The majority‘s interpretation of the avoid apprehension factor violates the
This unintentional delegation of discretion has serious consequences. First, a prosecutor charging the
III
I join in the Court‘s decision to reverse Hightower‘s death sentence because the trial court abused its discretion in removing Juror Number Seven from the jury and because deliberations had gone too far for substitution and reconstitution of the jury. However, this Court‘s determination that the trial court should have granted a mistrial is wrong. Under the circumstances, defendant was denied the realistic opportunity for a non-unanimous verdict. Defendant should not again be exposed to a death sentence and subjected to another penalty trial. Additionally, the Court‘s expansive interpretation of the
Therefore, I respectfully dissent.
For reversal and remandment—Justices POLLOCK, GARIBALDI, STEIN and COLEMAN—4.
For concurrence in part, dissent in part—Justices HANDLER and O‘HERN—2.
680 A.2d 677
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DONALD LOFTIN, DEFENDANT-APPELLANT.
Argued April 30, 1996—Decided August 8, 1996.