*1 JERSEY, PLAINTIFF-RESPONDENT, NEW JAMES STATE OF KOEDATICH, DEFENDANT-APPELLANT. JEROLD Argued September August 1987 Decided 1988. *6 Counsel, Barrett, Designated A. and Jean D. David Ruhnke Slocum, Public appellant (Alfred A. argued the cause for Defender, attorney). Prosecutor, Connor, Jr., argued the cause Assistant
Joseph Prosecutor, Trumbull, (.Lee County Morris respondent S. attorney). General, Foddai, argued the Deputy Attorney A.
Catherine (W. Jersey Attorney General of New cause for amicus curiae General, Edwards, attorney). Attorney Cary American argued the cause for amicus curiae Eric Neisser Jersey. of New Liberties Union Civil was delivered opinion of the Court GARIBALDI, J. 1984, the defend County jury a Morris convicted
In October Koedatieh, ant, for the murder of Amie Hoffman J. James directly this Court as of appeals him He sentenced to death. 2:2-1(a)(3). murder con affirm defendant’s right. R. We See trial court failed to instruct viction. Because the however, must reverse the sentencing phase, we properly sentencing procedure. and remand for a new sentence of death I.
Facts Investiga- Body, Disappearance, Discovery A. The tion, Arrest eighteen-year-old was an Amie Hoffman
In November High Hills School. She Parsippany at senior and a cheerleader in the Morris Surprise Store employed part-time p.m. aproximately 9:30 last seen alive at County Mall. She was 23, 1982, work as she shortly after she left on November County Morris parking lot of the toward her car in the walked Thanksgiving Day, November days Mall. Two later police body floating her in a discovered face-down water retention tank located in a wooded and secluded area of Township. Randolph Amie Hoffman had been stabbed several times, chest, receiving a wound to the which caused her to bleed to death. Medical evidence submitted at trial indicated that Amie had the victim of a sexual assault. Other medical been approximately evidence established that she died three to four hours after she left the mall.
Testimony at trial established that Amie’s life for the few days prior relatively her Sunday, death was uneventful. On 21,1982, a.m., p.m. Amie awoke at 10:30 November and at 12:30 cheerleader, her Karyn Speak, childhood friend fellow *7 home, Timothy Day’s arrived and drove Amie to where with a group game of friends she watched a football on television. At game, Day the conclusion of the football drove his friends to Intervale, spaghetti Rainbow Lakes Firehouse where a place dinner took honor of the school’s cheerleaders and firehouse, players. At football there occurred an accident Karyn Speak emergency that forced to seek medical treatment hospital. accompanied Speak, Karyn’s at the Amie Mrs. moth- er, hospital, ninety to the and remained there for about minutes Karyn while Karyn’s was treated. Amie then returned to house and p.m., high remained until about 11:00 when a school classmate who had been at the Firehouse dinner her drove home. 22, 1982, Monday, early
On November Amie woke but did not go cramps. to school because of menstrual Amie and her spent mother day talking evening they most of the and that Weavers, visited the family close friends. 23, 1982, sick, day,
The next November Amie still felt so she Instead, late, go did not to school at slept the usual time. she chatting mother, and after with her Amie went school and Karyn Speak, had lunch with her only friend who had suffered injury minor at accompanied the Firehouse dinner. Amie then Karyn Speak appointment to a girls dentist’s in Denville. The cheerleading practice p.m. at 2:30 because to school returned 4:45 Practice ended about for that afternoon. scheduled was Amie’s, noticed Ersek, next to whose locker was Karen p.m. underwear, brownish-purple a wearing purple Amie was skirt, quickly Amie sweater, cowboy boots. dressed plaid Surprise job p.m. part-time for her at at about 5:05 and left men) (there at Surprise also a Store was Store for women County Mall. the Morris Gonzalez, compan- at the who worked
According to Christene men, shortly at after Amie arrived work Surprise Store for ion 8:00, “[ajfter not later than a dinner break p.m. Amie took 5:00 Coke, McDonald’s, french ordering a went to p.m.; she 8:30” Horwath, employee McNuggets. an fries, Barbara and Chicken Jewelers, regularly used Kodak who neighboring 8:15 restroom, eating the fries at saw Amie Surprise Store’s p.m. helped p.m. Christene again Amie at 9:20 when saw
Christene the favor and Amie returned the women’s store Amie close home that Although needed a ride Christene the men’s store. her mother offer her a ride because evening, Amie did not girls left the night. permanent that going give her a carrying knapsack book- Amie p.m. 9:35 with mall at about exit, to Amie and goodnight said Christene bag. At the mall through the Straight back right Amie turned turned while her car. parking lot to emptying *8 minutes a few the Kodak Jewelers Horwath left
Barbara Amie, Like she Surprise Store. Amie had left earlier than lot; she walked straight to the back main exit out of the walked up until she gradually splitting employees, other with three stopped to They colleague, Debby McLain. remained with one no- talking, Barbara they were minutes. While chat for five vehicle, vinyl a roof with greenish blue of them a ticed front side. driver’s marks on the putty as and what she described inches, she could and down four side window was The driver’s “dark,” curly his hair eyes were profile. His see the driver blond, hair,” “light, light curly colored and his nose was “pointy.” point, At one the driver turned toward them. Bar- markings see dark bara could the sides of his nose and eyes. “prominent,” under his His nose was his hair was shoulder-length, “gold and she saw around the collar.” McLain, goodnight Debby said past
Barbara then walked observed; lights, the car she had she saw six rear three on each side, Chevy and identified the car as a similar to her sister's Chevy got BelAir. She into her car and drove down toward left, walking Mall. As she she saw Amie “up parking lot” toward her car. expected p.m.
Amie’s mother her home at about 9:45 for her permanent. called, When Amie had not arrived nor as she generally late, going did whenever she was to be Mrs. Hoffman drove to the Mall to search for her. She arrived at the Mall at p.m. sitting 10:30 and found parking Amie’s car alone in the lot. keys ignition The were in the jacket pocket- and Amie’s book, it, with her wallet in were in the car. She called the
police. Plate, Patrolman William Township Hanover canine handler, responded dog, Barron, to the Mall with his to investi- gate report missing person. mall, of a Once at the Plate met Mrs. Hoffman at attempted get Amie’s car and a track with scenting, Barron. After Barron parking tracked about two spaces from stopped. Amie’s car but then interpreted Plate indicating Barron’s behavior as the scent ended there. Thanksgiving Day, 25, 1982, On police November found body holding Amie’s in the center tank in the area known as Works,” “Old Mendham Randolph Township. Water located in holding tanks are made of very cement and are in a isolated area surrounded on three sides woods. Combs Hollow Road yards is located about 100 to the west of the holding tanks with a actually leading dirt road to the A tanks. bridge separates Combs Hollow Road and the dirt road. tank, holding
When discovered in the center Amie was wear- ing panties, sweater, skirt, the same cowboy boots she had *9 hair was she was last seen. Cut days earlier when worn two ground outside the body as well as on the around the found of the tank. Amie’s stains on the sides There were blood tank. her the center tank and ground on the near ring was found kidney-shaped A holding tank. was found wristwatch long and nine inches wide was eighteen inches pool of blood led the tank. A trail of blood sandy ground near found on holding tank to pool of the kidney-shaped wall from the police removed tank. The right hand corner of the center body Amie’s from the water. Roddy, Assistant Medical Examiner
Dr. Frederick L. First Roddy Dr. found a autopsy. County, performed Morris head, an left side of the victim’s long open gash on the shoulder, and “short right L-shaped wound to the victim’s neck. The victim’s left ear at the of the victim’s injuries” base that, Roddy’s severed, leaving deep wound Dr. had been prevented view, death but would have would not have caused straight; wound extended holding her head this the victim from spinal to the column. through all of the victim’s soft tissue nose, the base of the victim’s a short laceration at There was wounds, four and a half penetrating one severe chest and two inches, through inches, penetrating more than seven the other and tenth the ninth lungs and to her back between the victim’s these wounds from the structure of Roddy Dr. concluded ribs. perpendicu- single-edged knife held they were caused knife was chest; that the hypothesized he lar to the victim’s wound, partially inserted, inch then causing the four and a half inch withdrawn, causing the seven deeply, then thrust hand, right her as wounds on The victim had defensive wound. knife. attempted grasp the blade though she had thigh left the victim’s and bruises on There were also abrasions dragged arm, having been with her and lower left consistent the retention tank wall. over the victim revealed Roddy’s
Dr. internal examination In the death. prior to her apparently eaten a short time “had from chicken. meat fragments of white stomach we found *10 portion There was a appeared of what to be french fries and piece also a appeared what to be a roll.” Based on this evidence, Roddy Dr. estimated that the “time of death was probably four to five hours after she had eaten her last meal.” Hoffman, his internal examination of Amie Roddy Doctor swabbings also took of her cavity, vagina, rectum, oral made twelve slides from these kept swabs. He and examined six slides and sent the rest to the Medical Examiner’s office in Sperm slides, Newark. was vaginal found the which indi- cated that Amie had sexual intercourse before her death. Dr. Roddy presence found no sperm on the rectal slides. Dr. Goode, Examiner, Robert the State Medical examined the six slides that Roddy Dr. sent to him. He concurred with Dr. Roddy’s finding sperm vagina and estimated that intercourse occurred twenty-four within hours of death. His revealed, however, examination sperm present was in the rectal slides as well. On the basis autopsy, of the Roddy Dr. concluded that the victim “bled to death and the cause of the bleeding was the stab wound in right (i.e., chest” wound). seven-inch stab investigation
As the into began, the homicide police people talked to various who vicinity had been in the of the Mall or the night reservoir on the of November 1982. From Ms. observations, Horwath’s police composites drew of the car and driver she had parking seen in the lot. On December similarity because of a appear- vehicle and facial ance to the composite, Horwath a Patrol Officer of the Morris County defendant, Park stopped Police James Koedatich. The officer’s notes reflect that Mr. Koedatich was S'lOVi"to 6' tall, with a beard composite and mustache. The sketch was “of blond, suspect, hair, curly possible facial hair.” For reasons record, undisclosed in the the Officer did not detain Mr. Koeda- tieh at that time.
Other information during early obtained stages of the investigation persons came from who were in the vicinity of the reservoir on night of the murder. Police interviewed Timo- thy O’Grady, who had visiting girlfriend’s been his mother at Turnpike her home on Morris night near the reservoir on the question. O’Grady p.m. get left at about 10:15 home in time phone girlfriend, away his who college. O’Grady Road, bearing turned onto Combs Hollow in the direction of the dirt road pair access to the reservoir. He noticed a of head- lights by reservoir; the access tanks lights near the were heading away from the tanks paused down the access road. He bridge before a narrow on Combs Hollow Road to let the car pass; the car had come down the access road this time. The *11 other car headlights, had four mounted park- side-to-side with beneath, ing lights grated grill; and a the car was a medium to light O’Grady high blue. recalled that the car’s beams were on. home, aficionado, Once he reached O’Grady, an automobile identified the car in a manual as a 1970 Chevrolet two-door. He police car, told only person that there was one in the and that single operator this probably might was a male who have had a mustache no but beard. Clark,
Police Mary also interviewed Mrs. who lived on Combs heard, Hollow Road and who p.m. at about 12:45 on November 24, 1982, sports “what sounded go by like a small car the house slowly” from the direction of the retention tanks. She did not know whether the car had come from the access road to the Longo, retention tanks. Detective Richard who interviewed Clark, got Mrs. recounted that she told him that she out of bed engine headlights, when she heard the no but saw and that the road, around, up vehicle went by turned and came her again; telling house Mrs. Clark later did not remember things. officer those Few other leads available to the were police during early stages investigation. of their killing by
Amie Hoffman’s was followed two weeks later twenty-five-year-old abduction and murder of Deirdre O’Brien 15, 1983, suspect no had January As of 1982.1 on December the Hoffman or O’Brien charged with either arrested or been suspect in neither case. was a murders. The defendant 16, 1983, Patrolman Kevin Dormer January p.m. At 11:20 in Morristown. On 44 Harrison Street responded to a call from house, Koedatich lean- the Patrolman saw James entering the table, up; Bald- T-shirt rolled Julia kitchen his ing against the mother, Koedatich’s win, washing a wound on Koedatich’s driving home police that he had been Mr. Koedatich told back. flashing by a car with a pulled he was over on Route 24 when him. Mr. of the car had stabbed light and that the driver blue by po- unaccompanied Koedatich was taken ambulance— Perkalis, Hospital. Sergeant Memorial lice—to Morristown call, police officers on also instructed responded also to the who possible clothing and car as secure Mr. Koedatich’s the scene to alleged his assailant. leading to the arrest of evidence alleged attack on the Due to the similarities between murders, Hoffman Detective and the O’Brien and defendant County Sheriff’s Division Kinnecom of the Morris John investigating the O’Brien Investigation, who was also Criminal 17, 1983, January murder, police garage on was called to the relating to the Koedatich of evidence supervise the collection car, he inspected Mr. Koedatich’s stabbing. When Kinnecom *12 impression to the pattern its tread was similar realized that of comparison A of the O’Brien abduction. made at the scene photograph of the tread with a sketch the Koedatich tire suspicion. confirmed Kinnecom’s O’Brien track and the State the Prosecutor’s Office Kinnecom notified Koedatich’s A was obtained James Police. search warrant tire, and took the car Police removed 1970 Chevrolet. Falls for extraction Laboratory Little the State Police ultimately murder of Ms. O’Brien. On convicted for the 1Mr. Koedatich was Judy 5, 1983, twenty-seven-year-old shotgun January murder of there was a Parsippany. murder of Ms. Brown. has been tried for the No one Brown possible fiber and foam evidence. The seat cover was removed and the interior was Laboratory personnel vacuumed. also samples carpet. removed of the car’s The carpet seat cover and were taken to the Investigation Federal Bureau of Laboratory Washington, analysis. D.C. for
B. The Indictment and Pretrial Motions 19, 1983, January police On arrested James Koedatich for the murder of Deirdre O’Brien. charge The State did not Koeda- tich with the 15, murder of Amie Hoffman until December During 1983. the interval between Koedatich’s arrest for the O’Brien murder murder, and his indictment for the Hoffman community questioned why an in the arrest Hoffman case taking long. prosecutor’s so office said waiting it was for forensic evidence. 15, 1983,
On December County Morris Indictment No. 83-12- charged 0725-1 James Koedatich purposeful knowing with or conduct, murder his to N.J.S.A. contrary 2C:11-3a(1)- own (2); murder, felony N.J.S.A. contrary 2C:11-3a(3); kidnap ping, contrary lb; aggravated to N.J.S.A. assault, sexual 2C:13— to N.J.S.A. contrary 2C:14-2a; possession weap unlawful of a on, 2C:39-5d; N.J.S.A. contrary to possession weapon of a purpose, for an unlawful contrary to N.J.S.A. 2C:39-4d. Judge suppress, Arnold denied two motions to heard in conjunction with identical motions the O’Brien case in War- County. ren A change motion for a of venue was heard and Muir, by Judge Assignment denied Judge then for Morris 27, County, on June 1984. That again motion was renewed and denied on throughout Judge various occasions the trial before addition, Arnold pretrial attacking Stein. motions the consti- tutionality capital requesting murder statute and attor- voir dire ney-conducted prospective jurors were heard and July denied on 1984.
Voir dire prospective jurors began September 24,1984, qualification concluded on October 1984. With the jurors, began fifteen the trial on October 1984. The State’s *13 surrounding (1) the facts four basic themes: consisted of case (2) Amie discovery body; disappearance and (in days leading up to the abduction in the activities Hoffman’s abduction); prior sex to the had not had prove that she order descriptions and/or car to (3) the defendant his the likeness of witnesses; (4) be- and the close correlation given by various car and the interior of defendant’s and foam of the fiber tween and clothes boots. foam found on the victim’s fibers (1) that the arguments: planned to advance five The defense by the witness- descriptions given not match the did defendant mustache; (2) a beard and a es, and had as he was blonde mistaken, simply and had overreact- was one State witness that surrounding the publicity ed, subconsciously, to the perhaps alibi, defendant; (3) an the defendant had case and the games night playing video had been home that he proved noth- (4) and foam correlations that the fiber question; convincing existed that the murder (5) evidence ing; and Sheehan, another, namely, an Kevin committed had been high Amie Hoffman school coach at assistant football attended.
C. The State’s Case videotaped deposi- objection, the State introduced Without Cato, Monday in that on a Helen who testified tion of Mrs. friend, stopped at visiting a sick she after mid-November shopping. p.m. 3:00 to do some County Mall at about the Morris she visited that Monday because it was a She remembered sunny. had day The was She day each week. friend on that cigarette listening to the smoking a parked her car and was young a man and a voice. She saw she heard a loud radio when recog- She Mall toward her vehicle. walking from the woman Hoffman, a cashier at as Amie young nized the woman Koedatich, said, man, who she was James Surprise Store. taken. deposition Mrs. Cato when was in the room with hawk,” wearing and was blue a face “like a The man had He looked sneakers, jacket. jeans, and a denim blue white *14 placed familiar. Mrs. Cato later young him as a man who had teenage been to her house with her daughter in early 1960s. As the man approached car, and woman her Mrs. Cato heard say, loudly, him “Come Goddammit, here. Come here. I said come I’ll you.” here. kill The woman unresponsive first but became dropped flustered and the books she was carrying. picked up, stumbled, She them jogged and away from the man. Gonzalez, State recalled Christene who had earlier testi- regarding
fied Amie’s activities on the evening of her disap- pearance. Supra at 233. She approached testified that she prosecutor after initially testifying because she had never seen pictures defendant, of the testifying that while she sudden- ly recognized the defendant as a man she had seen at the mall. then She testified September that four times in and October 1982 she had noticed face, a man with very long high cheekbones, hair, brownish and one days growth or two standing beard Pub, outside the Mall, Station a tavern in the and that the man was defendant Koedatich. Mihalikis,
The State also called Dr. Isadore pathol a forensic ogist Pennsylvania, from who studied stab wounds. Dr. Mihal testified, ikis over defense objection, counsel’s that the defend ant’s stab wound was consistent with self-infliction. Dr. Mihal opinion ikis based this largely on discovery of a cluster of superficial three cuts near the left shoulder jacket defendant wearing had been allegedly when he was attacked. jacket The cuts on the penetrated of which the defend —none from 3/16-inchto 1- n depth ant’s skin—varied in inches, and had been caused a single-edge They knife. were consistent with self-infliction, testified, Dr. they Mihalikis physi because were accessible, cally grouped closely together, occurred a nonvital area, depth (indicating hesitation), varied in some and were shallow. evidence,
In connection with the fiber forensic the State produced Special Agent Harold Microscopic Deadman from the Investigation
Analysis Unit of the Federal Bureau of Labo- ratory George Neighbor, principal forensic chemist with Agent Jersey Laboratory. Special the New State Police Crime specialized in Deadman testified that he the examination and fibers; comparison of hair and that he had examined and compared speci- material from defendant’s car removed with mens from the clothes of Amie Hoffman. He testi- and boots nylon fied that removed from the heel of Amie Hoff- fibers right man’s boot were consistent with fibers found the car’s *15 carpet polyester and that fibers found on Amie’s skirt matched Also, Deadman, according fibers from the car’s seat cover. nylon fibers found on Amie’s skirt matched coarse fibers found binding Although in the the seat cover defendant’s car. fairly cross-examination he admitted the fibers were com- mon, extremely he nevertheless insisted that the likelihood was any remote that the fibers on Amie’s skirt and boot came from source other than defendant’s car.
George Neighbor, expertise whose includes hair and foam comparison, examined the seat cover from defendant’s 1970 brushings right Neigh- Chevrolet taken from Amie’s boot. piece backing bor removed a of foam from the seat cover and compared pieces edge it to two of foam found on the of the boot microscope, sole. He testified that when viewed under a foam from the seat cover of defendant’s car matched foam right found on Amie’s boot. testimony Neighbor,
After the of Mr. final State’s sched- witness, witness, surprise uled the State introduced a Diana objec- Bossard. Ms. Bossard testified over defense counsel’s stopped tions that in she mid-October had at the Morris County shopping planned Mall to do some clothes for a Novem- Mall, ber vacation. Once in the she looked for clothes in Bradlees, Bug, Surprise the Fashion and the Store. After she Surprise p.m., entered the Store at 8:45 she walked to the back young girl long being of the store and “a saw Oriental with hair unkempt-looking talked to in a loud voice an older man.” man, tall, hair, dirty-blonde The who was with a thin face with beard, cheekbones, high days growth speak- and several was bikes, ing girl taking in a loud voice about dirt but the was not store, part in the conversation. After several minutes in the purchasing anything. Bossard left without Ms. Bossard identi- girl fied the as Amie Hoffman and the man as defendant. at 314-318. Infra
Finally, attempted the State to introduce two items seized during the execution of a search warrant at defendant’s resi- photo dence. The first was a album found on defendant’s nightstand, pages pictures the last five of which consisted of “Oriental-looking” women. The second item was a letter ad- International; Japan Mr. dressed to Koedatich from enclosed pictures more were three of Oriental women. The State’s theory this was that evidence demonstrated defendant’s inter- explained est in females why Oriental to the defendant Amie, pursued Amie Hoffman over other women. who was of extraction, adopted by age Oriental Hoffman’s five. excluded the Court evidence because it found there were no support facts to the State’s contention that defendant wanted to have sex with Amie Hoffman or to abduct her because he was sexually attracted to Oriental females.
D. The Case Defense’s *16 Borzeka, opened by producing The a defense Michael cousin defendant, uncle, Borzeka, and John the defendant’s both they of whom testified that had seen the defendant on Thanks- giving Day According in 1982 and he had had a to that beard. uncle, “heavy, his defendant’s beard was full.” Both witnesses admitted, however, they only remembered this because of Michael, photographs allegedly taken and Michael testified that defendant’s beard was “close to his face.” The defense earlier, Clark, testified, produced next Mrs. as recounted who sports go slowly by that she had heard a small car her house on from retention tanks at Combs Hollow Road the direction of the night Longo in question. 12:45 a.m. on the Detective followed The defense with his version of what Mrs. Clark had told him. Raymond Di- testimony of Lt. introduce the sought then Department, who had received Police of the Morristown Biasse self-professed from a call on December phone a construction patient, he had a said that psychiatrist, who murder, his and that worker, might have committed who had to an Oriental woman who been attracted patient had evidence, argued, This the defense continually rebuked him. Bossard had Helen Cato and Diana possibility raised Amie Hoffman. the defendant —with man—not seen another however, “classic” ruled, that the statement was The court unreliability patent. its was hearsay, and that Baldwin, the defendant’s called David Paul The defense then living was at home high was in school and step-brother, who that defendant’s car had 1982. Baldwin testified November testified that his running in November. He also well been night in fall and that on the step-brother had had a beard that playing Atari most of upstairs at home question defendant was Finally, he testified evening, least until nine o’clock. of the house and associat- seized in the search that the sneakers bought for defendant as by Helen Cato were ed with defendant prosecutor’s on the gift in December 1982. Based a Christmas Baldwin, the defense moved for a of Mr. cross-examination mistrial, at 321-324. was denied. which Infra Sheehan, the former sought to call Kevin
The defense then school, high in order to at Amie’s Assistant Football Coach may have been Amie’s killer. suggest that Mr. Sheehan inadmissible. concerning Mr. Sheehan to be court held evidence at 298-313. Infra Koedatieh, defendant’s sister-in- Kathleen
The defense called September law, that defendant was bearded who testified 21,1982, although grand jury before 1982 and on November starting grow just she testified that defendant had Baldwin, Julia The defense then called beard in November. mother, that her son had a beard who testified defendant’s also testified that November 1982. She September from *17 upstairs playing James Koedatich was at home Atari on the night question p.m. p.m., from 8:00 to 11:00 and that she had living in the room until been eleven o’clock and would have seen the defendant if he had left. Like step-brother defendant’s she police stated that the sneakers the seized were a Christmas present for defendant. evidence,
To rebut the State’s fiber foam the defense Gowrie, called four witnesses. Thomas director of sales for Fabric, Hillsboro, Carolina, Falk Fibers & nylon North manu- facturer, company testified that his sold to Western Textiles 400,000 approximately yards per year nylon of monofilament similar to that found in the defendant’s seat cover. Tom Hannah, Textiles, recognized of Western tape on the de- tape fendant’s seat cover as similar to company that his sells Co., Manufacturing to Crest a manufacturer of seat covers. company He testified that in yards 1982 his sold million of 2V2 tape tape to Crest. The also was used the manufacture sweatbands, caps, jackets. McIntyre, and life Paul director Corp., of finance and administration for General Foam testified 340,494 company yards that 1982 his sold linear of charcoal gray Laminating. foam to U.S. witness, principal expert
The defense closed its case with its Reffner, principal microscopist Dr. John research for American Cyanamid. polyester Dr. Reffner testified that from the similar, identical, polyester victim’s skirt but to the cover; samples the defendant’s seat the fabric could not be said identical, stated, “large to be Dr. Reffner because there was a control,” degree variability within the data set on the because testimony the fabric was so common. The same held cover, nylon rayon for the skirt found and seat for the boot, carpeting from the and the the foam. Dr. Reffner general availability concluded that “because of the of the fibers variability and the within the data set itself there ... is no single point comparison says of match or these two words, together. joined materials were at one time In other way say part there’s no that the fibers and the foam were *18 increase, the automobile or the seat cover.” This doubt would testified, if Dr. Reffner he knew that the victim worked cross-examination, clothing Dr. Reffner acknowl- store. On edged rayon that he did not know that the had not been fibers carpeting 1973. Dr. Reffner used car since also acknowl- edged comparison that he had run tests with foams from suits, covers, caps, hanger baseball and wet none of which redirect, matched the foam from the seat cover. On Dr. Reff- given currency his conclusion that ner reaffirmed common fibers, many too of variables allow “[t]here’s [sic] direct connection of these fibers from the skirt to that car.” was, opinion, uncertainty” in his There “reasonable that the fibers on the victim’s clothes came from the defendant’s car. rested, having thereupon
The defense the State announced its call, witnesses, police intention to as rebuttal two officers who claimed to met the have defendant at his brother’s service station, testify both of whom would that the defendant was during the objections, clean-shaven fall of 1982. Over defense testimony. the court allowed rebuttal at 317-320. Infra conclusion, three defense called witnesses surrebut- Monahan, tal: Carol Charron and Robert who had worked with fall, the defendant at his brother’s station that and Nicholas Borzeka, uncle, defendant’s who had work done at that station. growing Each testified that defendant had been a beard 1982, growing fall, September through had continued it and had had dark hair. argued
The defense summation that the case was based on innuendo, “supposition, nothing prosecu- else.” on the Based summation, tor’s the defense moved for a mistrial which the court denied. at 324-326. Infra law, being charged jury
After on the retired for delibera- deliberating, tions at 11:20 1984. a.m. on October While jury Horwath, requested testimony of Barbara Diana Bos- sard, Gonzalez, Cato, Timothy O'Grady, Christene Helen and jury requested the identification witnesses. The also the testi- mony regarding of Mrs. Hoffman Amie’s on whereabouts Mon- day, Tuesday, Karyn November November Speak’s testimony Tuesday, about Amie’s whereabouts on No- 26, 1984, p.m. 23. At 3:05 vember October returned counts, guilty knowing namely, a verdict of on all murder, purposeful killing committing in the course of assault, kidnapping aggravated kidnapping, or sexual assault, aggravated possession dangerous sexual and of of a *19 weapon purpose. for an unlawful Penalty
E. Phase Trial trial, sentencing prosecutor aggra- At the the introduced as vating prior factors the fact that the defendant had a conviction murder, c(4)(a);2 outrageously that the murder Sec. was vile, c(4)(c); wantonly that Sec. the murder was committed for detection, c(4)(f), purpose escaping the Sec. and that the engaged murder was committed while the defendant was commit, committing, attempting flight committing to or from assault, kidnapping aggravated c(4)(g). and/or sexual Sec. by penalty phase attempting Defense counsel commenced the consent, however, prosecutor jury. to waive the would not c(l), application in so accordance with Sec. the for waiver of the jury presented signed was denied.- Defense counsel then a by statement defendant in which defendant made clear that he mitigating presented wished that no factors be on his behalf during penalty phase. expressly requested the He also to be death, sixty days being executed within sentenced to if in By making request, fact he were such a defend- so sentenced. attempting right appeal to his his conviction. ant was waive to Defense counsel followed his client’s instructions. At the sen- trial, therefore, tencing opening defense counsel made no state- 2C:11-3, containing provisions, 2N.J.S.A. the Code's murder consisted of five subsections, (a) (e), to at the time of these crimes and their trials. The death convenience, (c) (e). penalty provisions found in subsections to For are shall, instance, c(1) referring provisions designate Sec. to to these we for use 2C:11-3c(1). N.J.S.A. ment, factors, presented mitigating no evidence of made no closing jury. jury to the The trial court informed the statement throughout that was entitled to remain defendant silent the prove proceeding obliged that the was State still to its case. jury The trial court instructed the defendant to be if jurors beyond sentenced to death were “satisfied aggravating alleged reasonable doubt factor or factors they outweighed by this case exist and that are not any mitigating proceeded explain factor.” The trial court then to to aggravating jury factors that it was consider in its deliberations, general mitigating as well one as the factor provided c(5)(h). Sec. The trial court also instructed the jury obliged beyond that it was to find a reasonable doubt did, mitigating however, that a factor existed. The court instruct that its regarding decisions the existence or of aggravating mitigating nonexistence or factors had to be instructions, unanimous. Elsewhere its court trial stated may only you that “the defendant if sentenced death are beyond convinced aggravating reasonable doubt that outweigh factor mitigating or factors either factor or that the[y] equal mitigating are factors.” The trial court *20 jury any further mitigating instructed factors had to outweigh aggravating permit in order factors a sentence less than death. jury interrupted sentencing phase
The its deliberations to unanimity seek clarification on whether required was order mitigating to find a factor. The trial jury court instructed the mitigating that a factor did not exist unless based it was on the jury’s finding. unanimous jury unanimously proffered
The found that two of aggra- vating factor, prior factors existed: the murder conviction in the kidnapping/sexual murder course of assault factor. jury agree unanimously unable to subjec- on the more i.e., factors, (eleven tive the vileness factor found that it did exist; not) it purpose one that did and the murder for of escaping factor, detection and thus did not find them to exist. Because could not unanimously agree on the existence factor, mitigating of a none was found to exist. The court then sentenced the defendant to death. 16, 1984,
On November
the Office of the Public Defender
Appeal
filed a Notice of
on defendant’s
objec-
behalf over his
tion. The defendant moved before this
stay
Court to have the
execution,
of
which had
upon
filing
been entered
Appeal,
Notice of
vacated. This Court denied the defendant’s
motion on
Koedatich,
December
1984. State v.
On imposed the trial court thirty-year prison term fifteen-year period with a parole ineligibility on kidnapping count and twenty-year a concurrent term with years ten parole ineligibility aggravated for the sexual assault, the sentence consecutively to run to the sentence for murder should the death sentence be overturned. The court merged all murder, other counts kidnapping, into the aggravated sexual assault counts. The court also levied a fine $1,050 payable Compensation to the Violent Crimes Board. The defendant filed a hearing motion for a limited remand for possible on taint of the verdict. This Court denied that motion on October 1985.
II. Constitutionality Penalty of Death Statute statute, The defendant attacks capital punishment this state’s 2C:11-3, N.J.S.A. grounds, claiming both federal and state it prohibition to be against violative of the cruel and unusual Const, Const, punishment. VIII, XIV; US. amends. N.J. I, para. art. 12. We addressed this issue in State v. Ramseur, (1987), 106 N.J. 166-82 and now reaffirm our holding in capital punishment Ramseur that our state’s statute is not violative of either the federal or the state constitution’s *21 ban on cruel and punishment. unusual
250
Next, penalty we consider defendant’s claim that the death prosecuto- statute is because it fails to control unconstitutional seeking rial discretion in the death sentence. Defendant main- Legislature possibly tains that could not draft a death penalty potential statute that would eliminate at arbitrariness level, prosecutorial consequently penalty the death is inherently Jersey unconstitutional under the federal and New Thus, constitutions. defendant asserts that the penalty death argues act is unconstitutional on its fact.3 Defendant that the gives county prosecutors statute unfettered discretion in seek- ing the death sentence in cases in which the statute allows the prosecutors death sentence. Because have unfettered discre- determining capital tion in whether prosecutions to initiate statutorily possible, those cases which a death verdict is statutory defendant maintains that the rationally scheme fails among to differentiate those for whom the State seeks the penalty death and those for whom the State seeks lesser penalties. Accordingly, plaintiff argues, the statute does not “meaningful distinguishing ensure a basis the few cases in penalty] imposed which many death from the cases [the not,” Georgia, Furman v. 238, 313, which it is US. 408 92 2726, 2764, (1972) (White, J., S.Ct. L.Ed.2d concur- ring), allowing penalty thus “wantonly death to be and ... Id. at freakishly imposed.” S.Ct. L.Ed.2d at (Stewart, J., concurring). Ramseur, In State v. this Court addressed challenge a facial constitutionality to the penalty respect the death act with There, recognized pass discretion. we that in order to Furman, constitutional muster under capital punishment “a objectives: imposition statute must achieve two limit penalty group to what is assumed to small for which [it Union, position 3Amicus Curiae The American Civil Liberties takes the that the prosecutorial inseparable proportion- issue of discretion is from the mandate of Furthermore, ality proportionality argu- review. does defendant not advance a independent challenge prosecutorial ment of his discretion.
251 810, 2762, 33 at appropriate, see id. at 92 S.Ct. at L.Ed.2d is] (White, J., concurring), and ensure that the limited class rationality and consisten- penalty selected for the is chosen with 310, 2762, (Stewart, at 2d at 390 cy, see id. at 92 S.Ct. L.Ed. J., Ramseur, concurring).” supra, 106 at 183. State v. N.J. noted, eliminating primarily “are aimed objectives, Both we capital proceedings past in the and their arbitrary nature high risk of discrimination.” Ibid. Ramseur, beyond
In this Court also looked the federal consti- requirements tutional as formulated Furman and later 2d 859 Gregg Georgia, v. 428 U.S. 96 S.Ct. 49 L.Ed. Constitution, (1976), Jersey which mandates consist- New ency reliability capital punishment. in the administration of Ramseur, supra, 106 at 190. We observed that State v. N.J. and, “provides appro- our state Constitution an additional where against priate, expansive protections more source of the arbi- penalty.” trary imposition and nonindividualized of the death time, however, our At the same while we observed that Ibid. arbitrary provides protection against additional Constitution capital imposition penalty, of the death we also cautioned consistent, perfection, totally defendants are not “entitled to at 192. We refused to procedures.” accurate and reliable Id. construing penalty the death statute our State invalidate “that, though requirements unspec- Constitution to mandate ified, could never be met.” Ibid.
Thus, companion Biegen- case of and its Ramseur wald, (1987), directly prosecuto- address we did not N.J. Ramseur, argued defendant that the statute rial discretion. and therefore violated the failed to channel discretion Here, by Gregg. requirements constitutional of Furman contrast, prose- fails to check argues defendant that the statute guarantee cannot cutorial discretion therefore impose penal- the death arbitrarily capriciously State will not or sentencing helps to assure ty. limiting jury discretion While of those that those sentenced to death are a rational subset crimes, charged capital it does not at all assure that actually of those who could be are a rational subset those convicted Note, death-eligible “Discretion offense. See charged with Statutes,” Penalty the New Death Constitutionality of and the (1974). 1713-14 As one commentator 87 Harv.L.Rev. noted, sentencing guarantee that “confining discretion cannot rationally of all death are a selected subset those sentenced to *23 at 1714. capital offenders.” Id.
Nevertheless,
several discretion
the mere existence of
progression
capital
of a
case does not render a
ary stages in the
penalty
Gregg Georgia,
scheme unconstitutional.
v.
su
death
2937,
at
jury nullification would not be acts of executive clemency permitted. Finally, alien to would have to be Such a would be course, prohibited. system, totally justice. our notions of criminal [Ibid.] it would be unconstitutional. Moreover, therefore, that the federal Constitution does not Gregg, holds require prosecutorial beyond aggravat- discretion limits in That the federal Constitu- ing factors outlined the statute. guidelines prosecutors in administer- tion does not mandate for penalty dispositive, however. As ing the death statute is Ramseur, independent apply stated in we state this Court analysis appellate in our review of death verdicts. constitutional Ramseur, supra, Accordingly, at 182. we State v. N.J. prosecutorial claim at the examine defendant’s of arbitrariness stage light independent analysis in of the of our own Constitu- tion.
Defendant, Smith, in unlike the defendant State v. (Law Div.1985), prosecu N.J.Super. 578 does not claim that the arbitrarily selecting particular capital tor acted in his case for Smith, prosecution. brought defendant to the attention of court, support arbitrary of his claim of selective fifteen prosecution, other cases similar to his own which the Smith, prosecutor did not seek a death sentence. supra, N.J.Super. support at 591. In of defendant’s claim penalty inherently here that the administration of the death arbitrary, Specifically, he relies on statistical defendant data. portion preliminary report submitted to this Court study Jersey penalty the Public Defender’s on the New death Capital Reimposition statute entitled “The Punishment Jersey: Leigh New Homicide Cases From 1982-1986” B. Bienen, Defender, Weiner, Deputy Neil Alan Assistant Public Associate Senior Research Sellin Center Studies Criminology University Pennsylva and Criminal Law at the *24 nia, Denno, Sociology, University and Deborah W. Professor of Pennsylvania. preliminary of Defendant contends that the study designated capital results of this reveal that cases are county county in a manner that is inconsistent from eases arbitrary compared by are and a manner that is when cases county by and victims. groups identified of defendants anticipated in it would be asked to
This Court Ramseur that prosecutorial dis- possible consider “concerns about misuse of prosecu- including cretion in the review all cases in which a ... penalty.” had seek the death v. tor the discretion to State Ramseur, 329; supra, McCrary, 106 at also N.J. see (1984) judicial review of (permitting 147 limited N.J. charge authorized prosecutorial capital discretion to murder Act). preliminary under the the of the data submitted On basis Defender, however, by find no reason to conclude the Public we prosecutorial this time discretion the administration penalty being of the death abused or that it has resulted in unconstitutionally arbitrary an scheme of of cases selection for capital prosecution. Study attempts
The compari- Public Defender’s a statistical homicide, except manslaughter, son of cases of “all vehicular 6,1982, August where the homicide the occurred after effective imposition capital punishment Jersey.” date of th’e in New authors, purpose Study, according The to its is to prosecutorial examine the exercise of discretion and differences among practice procedure twenty-one criminal in all coun- ties in the state. The criteria for inclusion in data base are charge for a prosecutor’s formal homicide offense office disposition charge and a final of that at the trial court level. Preliminary Report surveys the case characteristics of 568 study cases. The authors of the identified and assembled case responses given characteristics based on counsels’ defense with incorporated interviews researchers. The interviews defendant, study victim, variables from basic data offense, the circumstances of the case processing decisions and trial, strategies, applicable aggravating and the statutory mitigating factors. prosecutors Of the 568 cases in the Interim Report, included aggravating involving served a notice of factors cases (18.1 568), (68.9 percent defendants 71 of whom 103) percent capital went to case trial as a case judge jury. proceeded before a or 71 cases Of the to a trial, capital (74.6 percent) in capital resulted a conviction for eligible4 fifty-three proceed- death murder. Of the cases that distinguishes 4The Interim between homicides and Report death-possible death-eligible homicide. Our discussion will that distinc- Report employ tion as A well. homicide is defined as a in which homicide death-possible *25 serving aggravating regardless factual basis exists for of an notice factor whether the A served notice of a factor. case becomes prosecution actually death-eligible aggravating when the notice serves of an factor. prosecutor
255 trial, imposition in penalty phase eighteen resulted the ed to a Overall, then, of the 568 homicide cases penalty. of the death Preliminary Report, prosecutors aggra- served notice of in the percent, percent capital in resulted in a vating factors 18.1 12.5 trial, penalty phase, and 3.2 guilt phase percent 9.3 went to a in the death sentence. The Public Defender percent resulted Preliminary surveyed that of the 568 cases the also claims statutory percent 57.2 at least one Report, 325 cases—or —had present death-possible. and were thus aggravating factor However, number, prosecutor of that the served notice of a out Thus, only according Preliminary 103 cases. to the factor percent aggravating cases had an factor Report, 39.1 any aggravat- notice of present prosecutor but the did not serve ing factors. Preliminary Report two statistical correlations advances pursue penalty the death in a
indicating that the decision to (1) prosecu- death-possible dependent policy case is on occur, county prosecution is to which tor of which (2) policy county county, the race of victims differs from and defendants.
First, Preliminary the Public Defender maintains discrepancies in the administration of the Report reveals wide desig- among example, For a case penalty death the counties. death-possible likely to Preliminary Report as nated County percent prosecuted death-eligible as in Monmouth time, County death-possible cases of the whereas in Hudson time; death-eligible only percent prosecuted were as percent the rates were 23 in Essex and Camden Counties rate for middle-sized counties was percent, respectively. The percent. Converse- percent, and for small-sized counties given bargain offered in a ly, plea chances that a would be higher Counties significantly in Hudson Camden case were Thus, suggest that County. in Monmouth these statistics than prosecution depends capital cases for the selection of homicide prosecution occurred. part county in which the *26 Preliminary Report explanation The offers no discrep- for the prosecutorial ancies in capital prosecution. selection of cases for question The critical in assessing prosecutorial discretion is applied what standards are to death-possible move a case from death-eligible to answering status. To assist in question, this rely solely this Court cannot county-by-county statistical discrepancies findings or on developed that are exclusively by defense counsels’ evaluation of the case included in the data base.
That among there are differences the counties in the likeli- prosecutor hood that a pursue will the coincidence that the —or prosecutor pursued capital has more often prosecution does —a not, alone, standing demonstrate that the penalty being death arbitrarily imposed. Surely, myriad there are a why of reasons prosecutor handles differently, different cases such as the willingness plead of a defendant guilty, strength case, cooperation State’s a defendant’s in the State’s case against co-defendant, weight relative of the statutory aggravating factors, mitigating and availability and relative credibility persuasiveness witnesses, and the resources office, county prosecutor’s only to list a few. As thus presented, far comparisons the Public per- Defender’s do not county prosecutors suade us that the acting are arbitrarily or capriciously. urges Public Defender also that the race of the victim5
affects the prosecute. decision to involving Cases white vic- Preliminary Report impermissi- 5The does not exhibit that a defendant’s race bly death-possible death-eligible. influences the selection of a case as White (.44) highest (.30) defendant cases advanced at the rate relative to blacks (.18); Hispanics nearly white defendants were two and one-half times more likely progress death-eligible stage Hispanic to the than were defendants. At sentence, processing stage, imposition the final of the death white-defend- Based, then, outpaced Hispanics. ant cases still blacks and on the race of the defendant, appear greatest probabilities advancing whites to have had the Jersey’s judicial system Hispanics probabilities, death in New the least early stage tracking imposition least at this of the death sentence. designated death- percent of cases tims, comprise 40.9 which percent of Report, for 61.1 Preliminary account by the possible advance to percent of all cases that and 54.9 all death sentences a case the odds that the victim was white capital trial. Where death-eligible were 43 death-possible to from advance would *27 Hispanic were where the victim was the odds percent, whereas percent. 26 were the victim was black percent, 15 where defendant, prelimi- of victim with race combining race of both death-possible cases where nary reveal that data percent chance Hispanic had a 9 the defendant were victim and death-possible cases death-eligible, designated while being of 44 had a were white victim and the defendant which both the death-eligible, and where being designated chance of percent percent a 27 chance were black victim and defendant both the the defendant designated. In cases where being of so (44 total), percent there was a 45 white and the victim black death-eligible. designated case would be that the chance however, admit that Preliminary Report, The authors of progression may race influence other than characteristics Furthermore, they acknowl- Report. surveyed their cases merely suggest data are tentative edge that these the admin- may have infected arbitrary factors impermissible or Moreover, in this state. penalty statute of the death istration judicial take the Court to Defender asks although the Public part of the never Preliminary Report, it was this notice of hearing or subjected to and was never record of this case opportunity to a formal had proceeding at which the State other may data Thus, preliminary the submitted challenge it. while prosecutors are adminis- understanding how beginning for be a sufficiently act, they are capital punishment tering the preliminary conclusions. to draw reliable for this Court updated and have been in this case data before this Court capital causes. in other this Court expanded submitted to analyze the for the Court appropriate more Accordingly, it is At this form. comprehensive more Study’s findings their 258
point,
merely
Court
we state
that this
has considered and will
Study.
to consider this
continue
Despite
prelimi
our reluctance to draw conclusions from the
evidence,
nary empirical
recognize
greater
we
the need for
guidance
prosecutors
they attempt
perform
as
their
duty
enforcing
constitutional
this
death
statute. Other
penalty jurisdictions
validity
prosecutor’s
have held
depends solely
exercise
discretion
on whether a
basis
factual
See,
charging
aggravating
exists for the
e.g.,
factors.
Free,
154,
396, 399,
People v.
112 Ill.2d
97 Ill.Dec.
492 N.E.2d
1269,
(1986);
State,
922,
(Ind),
1272
Resnover
460
2d
N.E.
den.,
873,
231,
(1984);
cert.
469 U.S.
105 S.Ct.
Accordingly, strongly we the Attorney recommend that Gen- eral, Prosecutors, and the County various in consultation with Defender, adopt guidelines the Public throughout for use by prosecutors determining capital state the selection of participants cases. With the assistance of these various justice system, begin guide- criminal can to develop state promote lines that not will only prosecutorial uniform standards may but also assist the in its proportionality Court eventual review. reject any specific claim arbitrariness
Finally, we any arbi case. Defendant does not demonstrate defendant’s capital prosecution, selection his case for trariness any There is no arbitrariness existed. we will not assume vacating ground. sentence on this defendant’s basis
III. Jury Issues Pretrial and Selection and Foam Evidence Suppress A. Motion to Fiber 16, 1982, two after Amie January approximately months On murder, police his home to defendant called the Hoffman’s stabbing. This he had been the victim a bizarre report that police examine to seize and later defendant’s event caused car, in both the Hoffman yielded which critical evidence O’Brien murders. home, police
Arriving found the defendant at defendant’s advised the in his back. Defendant with a stab wound lower car, displaying his a vehicle police driving he that while was Believing the driver to flashing light up him. blue came behind car, stopped, exited his Koedatich claimed he policeman, be a defendant for driver chastised walked to the rear. The car, his slowly. turned to reenter driving too When defendant behind the In one motion he slid felt a to his back. he blow blood, the car he felt steering of his car. inside wheel Once home, police. The drove and called the frightened, became ambulance, which called an police administered first aid and Sergeant Perkalis drove hospital. transported Koedatich to meantime, Sergeant hospital. In the mother to defendant’s stabbing to report about the a crime alert Perkalis issued police departments. adjacent *29 hospital estab- interviewing of defendant at the the
Further alleged place not in Morristown attack had taken that the lished jurisdiction over the attack Township, and that but in Morris Accordingly, Morristown Township. the belonged to Morris car police Township police transferred defendant’s to the Morris garage freezing in order to obtain forensic The evidence. lifting fingerprints winter made conditions the almost impossible, routinely placed garage so that cars were in the fingerprints. order to obtain appeared the
Because details of the attack to be similar to the attacks, Kinnecom, O’Brien and Hoffman Detective a member County Division, Investigation of the Morris Sheriff’s Criminal responsible preservation who for was the and identification of murder, physical gathered the evidence at O’Brien was called to piece examine defendant’s car. A critical of evidence at the slaying scene of the O’Brien was a tire track found near Ms. sketched, car. police photographed, O’Brien’s The had plaster made a cast of the tire track. From the O’Brien murder 5, 1982, date alleged December to the of the Koedatich stabbing, period, five or six a week Detective Kinnecom had diligently examined thousands of tires to find tire with a pattern tread similar impression to the made at scene car, O’Brien he abduction. As soon as looked at defendant’s he pattern noticed that a tire on the had a tread similar car to the pattern tread found near Ms. O’Brien’s car. He did no further investigation, immediately but called the Prosecutor’s Office and a search warrant was The secured. interior defendant’s pursuant car was searched search warrant. agrees properly defense that the search was warrant issued, alleges original but seizure the car was improper seizure, hence the fruits in this case the evidence, improperly fiber and foam were admitted. The de- suppress fense moved the foam and fiber At evidence. suppression hearing the theory defense’s was that the defend- really ant suspect, police and that had “secured” the through subterfuge. car Perkalis,
Sergeant charge, officer testified suppression hearing requested that he that defendant’s clothes police possible and car be taken to be examined *30 identity. the circum- He recounted of the assailant’s evidence of the seizure: stances to did indicate Mr. the incident were related to you the details of you, Once
Q: anything? to do desire Koedatieh your going secure his vehicle as possible A: to Koedatieh we were to I indicated Mr. evidence. to that? And what was the Q: response agreed. A: he was, His “yes, okay,” response was that standard evidence, police Now, procedure? Q: security sir____ A: Yes, investigating this as what —this whole incident? You were Q: aggravated A: assault with a weapon. As an whom? Q: Upon
A: Mr. Koedatieh. Upon he a at the Was Q: point? suspect A: he was not. No, car, he respect the seizure of testi-
Specifically, with to fied: evidence? or Dormer to secure other any Did direct Patrolmen Scott Q: you that in time that or I Mr. Koedatieh at
A: I also indicated advised Yes, point going he as evidence also and also secure his vehicle possible we were to that all. There was no with at [sic] problems very cooperative. get to secure the automobile? that, we did seek you Before Q: why might there vehicle; and the For contact between the suspect A: possible left on the vehicle. be some forensic evidence as? Q: Such fingerprints. as A: Such might some additional forensic that the vehicle did think Q: you provide Why or trace evidence? and where the assault close contact between suspect A: Because took place. suspect not been a the defendant had The court found that police had treated defendant stabbing, the time of the assault, report- Kinnecom and that Detective like a victim an suggested that de- officer garage ed because another to the could connected O’Brien fendant’s assailant Moreover, noted that the defend- the court Hoffman murders. that in police, the course ant had initiated contact with stan- processed the car under investigation police of that Hence, upheld the seizure the court procedure. dard seizure, finding “beyond defendant’s car as a valid consent Sergeant reasonable doubt that Perkalis never ordered the defendant turn anything over his car or of that nature.” *31 appeal, the accepts
On
Public Defender
fact
that
the
suspect prior
alleged
defendant
not
a
stabbing,
had
been
to his
argues
but
instead that since defendant was not
that
advised
he
give
car,
did
have to
his
consent to the seizure of his
his
voluntarily
was not
given
meaning
consent
within the
of State
Johnson,
(1975).
disagree.
v.
68
349
N.J.
We
Jersey,
New
if
rely
the State
to
in
seeks
a non-custodial situation on consent
search,
as
basis
a
knowledge
it must
on
“demonstrat[e]
part
person
involved
he
in
that
had
choice
(footnote omitted).
matter.”
at 354
Subject
qualifi-
Id.
to that
cation, a search
a voluntary
conducted after
consent
clearly
151,
Sugar,
(1987)(O’Hern
valid. See State v.
108 N.J.
166
&
Stein, JJ., concurring);
King,
(1965).
v.
A consent sufficient to necessity avoid the of a war may express implied rant be or from the circumstances. “An implied to consent search is as efficacious and effective as an express People consent to Engel, Cal.App.2d search.” 105 v. 489, 504, 454, (1980). Cal.Rptr. may 164 463 Consent “implied,” because it is found to merely exist because of the person’s engaging activity. LaFave, conduct in a certain W. Search & Seizure: A Treatise the Fourth Amendment ¶ 8.2(1), (2d 1987). Moreover, at 219 ed. courts other states implied where, have found voluntary consent as the instant case, police the defendant adopted has initiated contact and has “cooperative posture in the mistaken belief that he could ¶ thereby prevent police divert or suspicion 8.2(g), of him.” Id. 204; State, 662, (Del. Steigler 1971) see v. also 277 A.2d 667 (actions fully cooperative implied defendant amounted to to hardly consent search and expect seizure: “One can police get to building a search warrant for a or house when the obviously cooperative gives owner is every appearance and victim, being crime”); perpetrator, rather than the of a
263 Fredette, (Me.1979) (defendant 65, initiated State v. 411 A2d 70 through police; calls to invited them to police presence urgent home; police they as cooperated with continually enter State, 705, 717-21, v. home); 404 Lewis Md. 285 A.2d searched (Md.1979) (defendant police summoned to 1080-1081 investigation willing house; cooperate with was anxious give premis neighbor police access to ly key left house with Harris, es); v. Mass. N.E.2d 443 1287 Commonwealth (1982) (defendant genuinely hope cooperative that consented State, Kelly suspicion); v. police attitude would deflect 303, 313, (Wis.1977) (defendant N.W.2d Wis.2d and, implied police called under circumstances than victim had shot himself or had been shot someone other defendant, aid implied only was an consent not “there injury had or victim to determine what caused death but Federal have reached sim responsible”). courts who Price, (2d 2d 494 *32 See United States ilar results. F. (valid Cir.1979) police he did where defendant told not search bag it he they care if was his and had searched because McManus, Thompson v. mistake); 2d picked up by 512 F. 769 it (8th Cir.) (cooperative police by discussing defendant assisted robbery as assault on wife: sufficient motive brutal den., 421 cert. house), U.S. of imply consent to second search (1975). 1014, 2421, 683 S.Ct. 95 44 L.Ed.2d Sugar, supra, in State v. N.J. concurring opinion 108 In their 174, found, based on a close Justices O’Hern and Stein case, of of that unique examination all the circumstances of his Dr. had consented the second search Sugar impliedly conclusion, reaching they “particularly In this relied property. unqualified with cooperation unabated and the defendant’s Sugar, Ibid. In the search police efforts to find his wife.” curtilage the sur was not of defendant’s home but rather of rounding his the item searched was defend home. this case car, person expectation has a lower ant’s which a much 386, 391, Carney, 471 U.S. privacy. See 105 California 2066, 406, (1985) (“‘the expectation 413 S.Ct. L.Ed.2d privacy respect with to one’s significantly automobile is less relating ”). than that to one’s home or office’ Jersey, Appellate In New the distinguished Division has certain cases from only Johnson not because there was a “coercion,” general absence but also because there was some by form of active party initiation who turned over the evidence. police requested While Johnson the had entry into apartment, McGivern, State v. N.J.Super. (App.Div.1979), police query was limited to whether there trunk; anything in the car’s opened the driver his trunk having without been asked. Similarly, Humanik, in State v. N.J.Super. (App.Div.1985), 304-05 turning sister’s police over of the letter to the directly instigated “was not by officers”; and in Anglada, State v. 144 N.J.Super. (App.Div.1976), 362-63 the defendant “knew that did not [he] have to consent” when he allowed undercover officers into his home.
Consent is question therefore a factual to be determined from the relevant circumstances. persuaded We are totality unique circumstances that defendant did fact vehicle, consent to the seizure of his and therefore find the seizure requested valid. Defendant police intervention. There subterfuge by was no police. police acted in a reason- ably objective and routine in examining manner defendant’s car. gave appearance He cooperating fully police, with the and he they led them to believe working together were all catch his assailant. The defendant thus orchestrated the events that led to the discovery of crucial evidence in both this case and the O’Brien case. It is not police the fault of the nor is the Constitution “at all guilty offended when a man stubs his *33 toe.” (1968). v. McKnight, Indeed, 52 N.J. there can hardly appropriate be a more case in which to find that the police reasonably acted in concluding that given defendant had his consent to the seizure of his car. To rule otherwise defies common sense. Accordingly, we find the foam and fiber evi- dence to be admissible. Publicity and Venue
B. deprived publicity pervasive pretrial Defendant asserts rights fair constitutional to a trial him his federal and state publicity-related four by impartial jury. Defendant raises an appeal: issues
(1) denying in motion for Did the trial court err defendant’s venue; change of jurors
(2) excusing in not all Did the trial court err cause case; the who read heard about had or (3) jurors’ certain knowl- the tainted because of Was verdict edge; and
(4) denying in defendant’s motion for Did the trial court err voir dire. attorney-conducted essentially depend
All and on the the issues are interrelated law. principles facts the same same and Hoffman and undisputed that murders of Amie It the subsequent the arrest James Koedatich Deirdre O’Brien and Williams, State v. In publicity. attended intense were case, N.J. (1983), in this but which before the trial decided case, in O’Brien murder appellant defendant as an involved surrounding publicity these this Court noted the extensive cases: generated was in the record the Koedatich case included publicity stabbing again following and Ms. O’Brien’s death December primarily early During following these Koedatich’s arrest. almost-daily periods, January including the Morristown were several newspapers Daily published by reports (Morris, Star-Ledger (Pennsylvania) and the Record, Express Easton edition). including the Dover Ad- Warren Other Sussex, newspapers, Daily Bridgewater New Herald News Courier-News, Passaic vance, coverage. articles The December less News, frequent York Daily provided killing, surrounding statewide in detail the circumstances chronicled resulting investigation and the fear that ensued manhunt extensive articles postulated possible felt area residents. These by many anxiety murders in the and several other unsolved between O’Brien murder relation page banners, front announced by area. Koedatich’s arrest January background and Koedatich’s articles extensively reported headlines. Published including his criminal involvement. particular, history personal prior just term in an prison noted that Koedatich had completed 11-year papers *34 serving Florida where he was a sentence for murder and armed 20-year jail Moreover, indicated that while in robbery. Koedatich had choked to reports although justifiable death another inmate, the incident was considered homicide. Coverage legal of in Koedatich’s case reiterated the subsequent developments surrounding stabbing
facts Ms. O’Brien’s death and Koedatich’s criminal histo- at 50-51 n. [Id. ry. 2.] publicity This continued. The Public Defender’s Office contact- Advance, Star-Ledger, Daily ed the and the Daily Record 1984, May and found that Star-Ledger had that time published ninety more than articles concerning the defendant or Murders,” County “Morris more than half of the articles published after (forty-four arrest, defendant’s arrest before the after); forty-eight Daily published Advance had about forty articles about the cases after Koedatich’s arrest. The Daily Record offered no estimate. Circulation paper of each 45,500 was as 62,400 follows: the Star-Ledger, daily, Sunday in 3,800 County;6 5,800 Morris daily, Sunday in County, Warren 8,100 12,200 daily, Sunday in County; Sussex Daily Ad- vance, 14,359 13,020 daily, Sunday; Record, 65,000 the Daily 72,000 daily, Sunday. The Public Defender also contacted various local radio stations and York, WABC-TV in New with inconclusive results.
1. Change Motion Venue of Based on the continuing publicity and on a survey purporting to show media saturation in County, Morris defense counsel brought change a motion for a prior of venue to trial. On June 27, 1984, Judge Muir, Assignment then Judge for Morris Coun- ty, rejected the results of the survey because methodological of flaws; defendant does not finding. contest this Assign- Judge ment ruled that there was no reason at that time to order 6In 1983 and in Morris had a respectively, of County population 413,900 and 417,800; Warren a 84,900 County 85,400; population Sussex 119,100 a County 119,700. See population N.J. of Labor, Dept, Demographic Office of and Economic Estimate, Official State Analysis, Popula- tion Estimates for New Revised Estimates, Jersey: 1983 and July July 1984. venue, to the discretion of change and referred the issue ruling change was not venue the trial court. *35 time, Judge on the Assignment the relied warranted Wise, 59, (1955), in State v. 19 N.J. 73-74 standard articulated convincing proof that a namely, there was “clear and whether In given cannot in a impartial trial be had” venue. fair and 39, Williams, (1983), 93 N.J. we a new articulated considering request trial a by to be used courts when standard standard, the courts are Williams change of Under for venue. of there a “realistic likelihood to determine whether exists pretrial Assign- resulting publicity. from While the prejudice” applied pass- Judge admittedly the incorrect standard ment request, court whom change the of venue the trial before ing on the occa- did not. On each of numerous defendant was tried venue, change of the trial which moved for a sions on defendant correct Williams standard. con- applied dissent court the change court’s of the of venue cludes that the trial denial “application the of an erroneous and motion was based on the That conclusion is mistaken in that antiquated standard.” distinguish the “trial court” fails dissent’s reference to ruling Assignment Judge the who single the venue of between rulings the admissibility survey, the of the and venue passed on was tried. The latter the court whom defendant of before incorrect standard. applied court never the 1984, 24, selection, September de- day jury the of On first venue, change of which counsel the motion for a fense renewed Thereafter, selec- throughout jury the trial denied. court change for repeatedly moved period, counsel tion defense selected, could impartial jury be Finding venue. that a fair change motions court all the defendant’s the trial denied venue. Constitution,- appli- made
The sixth amendment
federal
amendment, and
through the fourteenth
to the states
cable
guarantee “to
I,
paragraph 10 of
state Constitution
Article
impartial,
panel
criminally
a fair trial
accused
Dowd, 717, 722,
81 S.Ct.
jurors.” Irvin v.
U.S.
‘indifferent’
(1961).
cases,
capital
6 L.Ed.2d
it is
important
preserve
particularly
for the trial court “to
danger
prejudice
will
integrity of
minimize
Williams,
process.”
adjudicatory
supra,
infiltrate the
State v.
at 63.
N.J.
established, however,
It is also well
that a defendant is not
jurors
totally ignorant
entitled to
who are
of the facts and
given
in a
issues involved
case:
In these
and diverse methods of
an
swift,
communication,
days
widespread
can
case
arouse the interest of the
expected
important
public
jurors
of those best
to serve as
will not have
vicinity,
scarcely any
qualified
formed some
or
as to the merits of the case. This is
impression
opinion
true in criminal cases. To hold that
the mere existence of
particularly
any
guilt
notion as to the
or innocence of an
without
accused,
more,
preconceived
juror’s
sufficient
to rebut
of a
would
presumption
prospective
impartiality
juror
lay
It is
can
be to establish an
standard.
impossible
sufficient if
impression
opinion
aside his
or
and render a verdict based on the evidence
*36
Dowd,
presented
supra,
in court.
v.
366 U.S. at
[Irvin
S.Ct.
81
at
722-23,
(citations
added).]
Defendant’s basic that is because deliberating jurors had heard about the case as a result of pretrial publicity, he extensive was unable to secure a fair impartial jury. remedy Defendant contends that the best pretrial publicity grant to combat this was for the trial court to change change defendant’s motion for a of venue. Short of a venue, argues only way the defendant that the other impartial jury obtain a fair and was for the trial court to.have any juror excluded for cause who had read or heard about the Implicit case. in both these assertions is defendant’s contention publicity pervasive that the this case was so extensive and
269 unper- are prejudice presumed. must be We jurors’ that suaded. capital cases we held that a trial court has In recent “ ‘necessary change venue where it is to overcome discretion to ” pretrial publicity.’ prejudice from
the realistic likelihood v. supra, 106 State Biegenwald, v. N.J. (quoting State at 33 Williams, Bey, 96 supra, 93 see State v. 13); N.J. at 67-68 n. v. N.J. (1984). N.J. 625, 97 666 630 clarified at Biegenwald, courts, recognized, we as do the federal prejudice determining such a realistic likelihood of whether case, distinguish first particular in a a court must exists so cases in which the trial corrupted by publicity between atmosphere 86 S. Ct. Maxwell, v. U.S. prejudice 384 333, 352, presumed, Sheppard may (1966); v. 381 U.S. 85 Texas, 16 L.Ed.2d Estes 532, 542-44, 614 600, 1507, 1516, (1965); Louisiana, Turner v. 379 L.Ed.2d 14 550-51 S.Ct. 543, 1628, 1632-34, (1965); v. 13 L.Ed.2d Rideau 85 S.Ct. 429 U.S. 472-73, 546, 549-50, 424, 466, 10 L.Ed.2d 665-66 Louisiana, 373 U.S. S.Ct. 1419, 663, 83 723, 727, 1417, (1963); 360 U.S. S. Ct. 1172-73, 79 States, Marshall v. United 310, 312-13, 1171, curiam), (1959) (per and cases in which 3 L.Ed.2d 1252 1250, pretrial publicity, making the actual the determinative issue extensive, intrusive, while is less N.J. at 33.] on the panel. [106 effect of publicity impartiality Yount, v. see Patton case, type of the latter For instances 81 L.Ed.2d 1032-85, 2885, 2889-91, 467 U.S. S.Ct. 1025, 104 Florida, 282, 301-03, Dobbert v. U.S. 97 847, (1984); 432 854-56 v. Murphy (1977); 53 L.Ed.2d 2290, 2302-03, S.Ct. 361-62 Florida, 2031, 2036-2038, U.S. S.Ct. 794, 800-03, 44 421 95 Dowd, supra, Irvin v. U.S. (1975); L.Ed.2d at 595-97 v. Simmons 756-59; L.Ed.2d 1642-46, S.Ct. 723-28, at — den., Lockhart, cert. U.S.-, 814 F.2d (8th Cir.1987), DePeri, 99 L.Ed.2d United States (1988); 108 S.Ct. *37 Murphy nom. v. cert. den. sub Cir.1985), 778 F.2d (3rd 963 U.S., (1986). 89 L.Ed.2d 1110, 1518, 457 U.S. S.Ct. 916 106 pretrial publicity may be prejudice due to
Cases which most extreme relatively rare and arise out of the presumed are Stuart, 427 U.S. 539, Press Ass’n v. circumstances. Nebraska 49 L.Ed.2d 683 2791, 2800, (1976) (citing 96 S.Ct. 554, case minimal efforts to had failed to use even which “trial court ”). ‘deluge publicity’ of jurors from the insulate the trial and 270 prejudice in which was Biegenwald,
In we contrasted cases 723, Louisiana, presumed, supra, as v. 373 such Rideau U.S. 663, 1417, prejudice in which was 83 10 L.Ed.2d and cases S.Ct. Florida, 794, Murphy supra, 421 presumed, such as v. U.S. 2031, Biegenwald, supra, 44 L.Ed.2d v. 95 S.Ct. 589. State 106 34-35. N.J. at selection, Rideau, during preceding jury
In the two months detailed confession to a murder televised defendant’s was by a three and seen number residents of times substantial parish crime The place. Supreme in which the took Court granted change held that of venue should have been because a “very in a sense the televised confession real was Rideau’s trial____ subsequent in a Any proceedings community court so pervasively exposed spectacle to such could be a hollow but 726, 1419, formality.” at 83 at at 373 U.S. S.Ct. 10 L.Ed.2d Florida, 794, 2031, Murphy supra, 665. In v. U.S. S.Ct. 589, publici- the defendant also received tremendous L.Ed.2d ty prior robbery Sapphire of his of the Star of India because undisputed publici- from a York museum. It was that the New Indeed, ty widespread. prior about his convictions was each juror knowledge past had some of defendant’s convictions. Nonetheless, Supreme upheld Court the denial of defend- motion, change noting publicity largely ant’s had of venue ruling, ceased months before selection. so seven Court stated: jurors
The voir indicates dire in this case no such hostility petitioner by suggest who served in his trial as to that could not be laid aside. partiality vague jurors with Some had a recollection of which robbery petitioner charged knowledge and each had some but none past crimes, petitioner’s in the relevance to the case. belief betrayed petitioner’s past present any (footnotes omitted).] at 595 S.Ct. 2031, 2036, 44 L.Ed.2d [Id. 800, Supreme Biegenwald, As we noted in Court distinguished publicity Murphy the intrusiveness of the from Louisiana, supra, 373 that found in Rideau v. U.S. by observing: cases 10 L.Ed.2d and similar S.Ct. lacking proceedings cases in the were entirely solemnity [those] a defendant in a that subscribes which entitled sobriety system any
271
rejects
notion of fairness and
the verdict of a mob.
be
cannot
made to
They
juror
stand
for
that
to information about a state
proposition
exposure
defendant’s
convictions or to
of the
news accounts
crime with which he is
prior
charged alone
the defendant of due
To resolve
deprives
presumptively
process.
this
we must
in the
of
case,
turn,
therefore,
indications
circum-
any
totality
N.J.
stances
that
was
trial
not
fair.
at
petitioner’s
35
fundamentally
[106
Florida,
(quoting Murphy
v.
at U.S.
95 S.Ct. at
421
granting changes potentially of venue due to prejudicial publici- ty very that our similar to prejudice” “realistic likelihood of standard: change granted A motion of venue or be continuance shall whenever it is prejudicial that determined because of the dissemination of material, potentially relief,
there is a reasonable likelihood in the absence such trial of fair cannot showing prejudice had---- A actual shall not be required. Court, Superior Cal.Rptr. [Maine 68 Cal.2d 375, 372, 438 P.2d 66 377, 724, (1968) (emphasis added).] 729 however, court, A California will presume prejudice without examining first potentially certain factors that measure the prejudicial pretrial effects of publicity. Superior Martinez v. 574, County, Court Placer 29 Cal.3d 629 P.2d 174 (1981). Cal.Rptr. These factors include the nature and coverage, community, extent of news of the size offense, gravity respective nature and standings and the community. the victim and the accused in the Id. at (based P.2d at Cal.Rptr. cited factors there reasonable likelihood fair trial could not be had change); Superior without venue Williams v. Court Placer *39 584, 799, (1983) Cal.Rptr. 194 492 County, 34 668 P.2d Cal.3d denied; (held: mistakenly defendant change of venue motion community; minority group stranger and to was member of family; prominent white and from and case had victim was overtones). Balderas, 144, People 41 political But see v. Cal.3d 496-99, (Cal.1985) (held: 480, Cal.Rptr. pre 222 711 184 P.2d (1) prejudicial publicity presumptively trial not where neither (2) prominent; county population equals victim nor defendant 405,600; (3) hostility and no evidence of unusual local toward group); Superior defendant’s ethnic Odie v. Court Contra 932, 225, County, Cal.Rptr. 654 P.2d 187 455 Costa Cal.3d (1982) (held: properly venue motion denied where more than years passed coverage time of two between intense media and date, pervasive, prospective publicity geographically trial not hostile, publicity particularly standing not and of accused and case). According in victim were neutral factors to California’s court, high pretrial a defendant whose venue motion is denied may if renew that motion the voir dire later reveals that there prejudice against pretrial publici the defendant due
is actual to 947, 234, ty. Cal.Rptr. Id. at 654 P.2d at at 464. Biegenwald, recognized In we that there was exten- State v. including pretrial publicity, sive numerous articles in which the prosecutor “repeatedly guilt assumed defendant’s and also stat- only pleasure.” ed that defendant killed at 31. N.J. however, concluded, We prejudice the trial court was this is not case which required presume jury voir dire. The extensive to the was concentrated in prior pretrial publicity prohibiting further comment counsel, 1983. addition
April
May,
adjourned
allowing
the trial court
the trial date until
six
mid-November,
nearly
months to
to subside.
{Id.
permit
impact
publicity
35.]
view,
distinguishable
In our
the instant case is
from those
presumed prejudice
cases in
courts have
as a result of
which
pretrial publicity. The facts of this case differ in several
(1)
important respects:
there was no evidence of extreme com-
fear,
munity hostility,
specifically
from
as distinct
directed
defendant; (2)
against
neither the victim nor the defendant was
(3)
prominent
community;
member of the
the victim was not a
outsider;
(5)
servant; (4)
an
public
the defendant was not
community
predisposed
was not
his
absence
guilt.
pretrial publicity
persuades
these factors
us that the
State,
prejudicial.
supra, 476
presumptively
See Johnson v.
support
We find further
for this conclu
2d at 1213-1215.
So.
years elapsed
fact that two
between the time of
sion
publicity
and the commencement of
selection.
most intense
also note
Biegenwald, supra,
v.
over, smaller publicity in Fisher saturated a only most months community, and reached its intense level IOV2 distinctions, do prior Given factual we not feel to trial. these one is that a result similar to the reached Fisher warranted here. prejudice presumed, appropriate inquiry is not
Where
determining
change
necessary
whether a
venue is
to over-
prejudice”
the “realistic likelihood of
is whether under the
come
process
“the
resulted in a fair
totality of circumstances
impartial jury.”
Biegenwald, supra,
v.
at
State
N.J.
Thus, the court must examine the extent
to which
35-36.
potential jurors
any publicity
are biased as a result of
surround-
ing
determining
juror,
In
of a
courts
the case.
actual bias
place
reliance on trial court’s
great
voir dire examination of
1038-1039,
Yount,
juror.
supra,
Patton v.
at
U.S.
2892-2893,
275 juror’s during of demeanor an observation necessarily dependent upon from voir course of dire —observations which an court is appellate precluded making. [********]
Although juror’s of will not insulate him from professions impartiality always see, Jackson, Deatore, e.g., supra; supra v. State v. State excusal for cause, see, e.g., great (1976)] weight, N.J. 100 will be accorded a deal of [70 they Grillo, Jefferson, (E 1943). supra; v. State v. N.J.L. 131 72 & A Inasmuch 70, judge as the trial observed the venireman’s he was demeanor, position and of such and we statements, assess sincerity credibility accurately evaluation____ [Id. should therefore due deference to his at 64.] pay Thus, upheld this Court has the trial court’s discretion exposure pretrial refusing jurors to excuse for cause whose publicity opinion led them to form an about the facts of the case guilt or innocence of the accused: and the fair trial “a of While the constitutional standard for a impartial, requires panel Dowd, 366 jurors,” Irvin v. U.S. S.Ct. ‘indifferent’ [81 1642], (1961), jurors ignorant need not be L.Ed.2d actually empaneled case____ juror facts of the ‘It is sufficient if the can aside his or lay impression in court.’ [State and render a verdict based on the evidence opinion presented supra, (citations Sugar, omitted).] N.J. at 23 Williams, supra, 66-67, State v. N.J. In we set forth an may use “to panoply procedures” “entire of that a trial court character, availability, feasibility determine and evaluate the against efficacy safeguarding methods of and alternative so, prejudice.” doing upon In the trial court must draw “its Id. at 67. special judicial expertise experience.” own securing foreign augment options jurors to the addition change jury pool, adjournment of the trial date dire as one of the most critical voir venue, we identified the assuring impartiality: important means of dealing with and latent bias indeed means for critical, potential [An] important, of more exhaustive and is the voir dire. The court should consider the efficacy conducting searching The court in the voir dire should voir dire examinations. regarding of counsel the examination to the particularly responsive requests jurors The court could consider whether as to bias. prospective potential greater willingness in favor of the there should be a to resolve doubts excusing jurors trial cases, defendant for cause. Particularly capital jurors judges should exercise care in the voir dire of extraordinary potential * * (footnotes omitted).] [Id. *. at 68-69 *42 276 35-37, 106 at and supra, N.J. State v. Biegenwald,
In State Ramseur, 256-57, special 106 at we continued our supra, N.J. reviewing the on both to the trial court voir dire deference Ramseur, noted qualification publicity. and we both death of weighing appraisal juror’s and entire that sensitive “[a] in its duty made the trial court to resolve response must be juror prejudg- has shown bias or question the of whether the ment,” 257, “perhaps too 106 and that this Court far N.J. to appreciate the realities of the voir dire removed” from record”; thus, by a deference to nuances concealed “bloodless usually (quoting in order. at 260 the trial court is Id. State v. Gilmore, 508, (1986) (Clifford, J., dissenting)). 103 N.J. 547 recognize appellate that an faces
We court certain difficulties Among reviewing adequacy of the voir dire. other when having of things, appellate court does share benefit potential juror. Despite made in-court observations of the an vantage point, perceive appellate inherently court’s inferior we reviewing role in as follows: our voir dire tribunal is likewise under a to make an [A]n appellate duty independent juror’s voir dire examina- evaluation of the facts and circumstances and of the It whether stories are tion. should determine for itself the pretrial newspaper juror’s prejudicial, so so or the of unaffected pervasive protestation reading unconvincing a new after them so or doubtful trial impartiality should ordered. (1964), v. Van N.J. cert. 380 U.S. S.Ct. 85 369, den., 987, [State Duyne, (1965).] L.Ed.2d 1359, jury began September In this case selection on selection, day jury on ended October 1984. On first venue, change counsel his motion for a defense renewed 23, 1984, September supplementing Sunday, the record with front-page County from Record. The Daily article the Morris premature. court denied the motion as At the end of first selection, day jury defendant renewed the motion. trial again during day jury it. noted that the first court denied It selection, prelimi- potential jurors out of twelve had been five (not cause). narily qualified It noted that of these excused five, knowledge prior two no of the case. Based had selection, day of trial stated a fair first court *43 impartial jury Publicity could be selected. through continued days jury first few selection.
Defense counsel renewed his motion for a change of venue on
selection,
day
the second
jury
when he introduced an article
Daily
previous day’s
from the
Record
depicting
the defendant
“shackled and
guards
with armed
escorting him to the
Court----” Defense counsel
many people
asserted that since
read or heard about the
paper,
case
he was forced to use
peremptories for publicity purposes rather than for other rea-
motion,
sons.7 The court then denied the
stating: “I do not
regard
an appropriate
as
test the fact that someone has read
before____
about this case
people
There are
who don’t even
they
remember what
read ... and there
people
say
are
who
they
rely upon
don’t
press
determining guilt
...
or
innocence
rely upon
but will
presented
evidence
in the
courtroom____ [Tjhere is no evidence ...
that the citizens of
cases,
placed
7In certain
courts have
reliance on the fact that the defense
States,
peremptory challenges.
supra,
failed to exercise all its
Welch v. United
829;
Lockhart,
504;
Balderas,
supra,
466 A.2d
People
Simmons v.
814 F.2d
case,
supra,
only
twenty
The trial court took conducting numerous prospective All jurors required voir dire. were fill out a questionnaire. questionnaire general questions contained education, concerning juror’s occupation, condition, physical defendant, familiarity witnesses, with the prospective case, lawyers in the juror and whether the or a member of *44 family his or her or a charged close friend had ever been with a criminal violation or had ever been the victim of a crime. The questionnaire also following questions: contained the you any opinion guilt Do have as to the or innocence of Mr. Koeda- charge tich on the contained in the indictment?
Yes No [ ] [ ] you expressed opinion Have guilt an as to the or innocence of Mr. any prior Koedatich at time?
Yes No [ ] [ ] you Have anything any read newspaper? about this case in
Yes No [ ] [ ] you (circle How following newspapers one)? often do read the Ledger Daily a. Star Very often
Infrequently Never Daily Daily b. Record Very often
Infrequently Never Daily c. Daily Advance Very often
Infrequently Never d. Daily New York Times Very often
Infrequently Never newspapers? you any Do read other No
Yes [ ] [ ] names_ so, If list their you programs daily? almost
Do watch television news
Yes No [ ] [ ] so, day. usual time of If list which channels and what you juror case, If are selected to you willing sit as a on this would solely testimony and able to render a you verdict based on the will hear, presented other give evidence and the law as the court will you instructions, disregarding any ideas, it to in its other notions or you may beliefs about the law that have encountered?
Yes No [ ] [ ] (Signature juror) *45 (Please print name) twenty-six potential jurors The trial court excused based solely responses questionnaire. on their written to the Of the seventy-nine prospective jurors they who were asked if had case, not; they read or heard about the nine said that had four deliberating jurors. Seventy-seven jurors of these nine became these, forty were excused the trial court. Of were excused case, knowledge twenty because of their of the were excused reasons, hardship for were excused of their feel- five because ings capital punishment, and twelve were excused for miscel- any prospective laneous reasons. The court excused for cause juror knowledge prior who indicated defendant’s murder pending charges conviction or O’Brien case. Addi- tionally, juror for any the court excused cause who indicated he opinion guilt or she had an formed about the defendant’s or Approximately percent ninety-six jurors innocence. thirteen questioned they by the indicated that had formed such Court an opinion. counsel peremptory Defense exercised nine chal- lenges. The exercised four. trial,
Of the who sat jurors during fifteen five had not Jadwin, anything Edgar read or heard about defendant: Her- Nadel, Fiorentino, Festa, man Joseph William and Robert O’Shaughnessy. remaining jurors, Judith Deelsnyder Of arrest, Zingone had read about defendant’s Dan had not read picture about but paper, the defendant had noticed his in a Loraine Zaccaro and Glen Cosentiono had read about the case primarily years nothing two earlier but recalled the defend- background. Fascia, alternate, ant’s Leslie who as an served something years read “two ago,” about defendant initially reading she something stated that remembered “about body 80,” remarked, being found out on Route but then “I don’t Elizabeth read remember.” Criares last about the case selection, three months before and associated the defend- Budd, Brown, ant stabbing. Margaret with Alice Deborah Andrews, Herzig knowledge and Barbara each had of the case arrest, any and of knowledge defendant’s but disclaimed Brown, instance, background. defendant’s Deborah testi- case, fied that she talked about details pictures and saw in the Sunday paper but did not read article the whole and could nothing particular remember background. about defendant’s Margaret reading also Andrews testified to about the defend- papers, “[tjhis ant in the recently most in the Daily weekend” Record, nothing but particular could remember about defend- background. ant’s reading When asked if she remembered or hearing anything background, about defendant’s Barbara Her- zig replied, ago. forgotten.” “It was while I have Loraine Zaccaro answered “No” when asked if had she “ever read or *46 anything despite knowledge about Mr. Koedatieh” her hear[d] of the circumstances of the crime. case, capital rejected
In a recent we a trial court’s exclusive protective prevent juror reliance on instructions order to exposure prejudicial, publicity. (I), Bey midtrial State v. (1988). case, rely principally N.J. the instant we strength upholding of the voir dire in the trial court’s change rely denial of the of venue motion. We on the court’s repeated jury publicity only use admonitions to the to avoid provides support insofar as it additional for our conclusion. trial, Throughout process throughout selection every preserve jury’s impartiality trial court made effort to by reminding jurors duty any publicity of their to avoid about the case. juror preliminarily qualified yet
Once but not selected juror, juror as a final the trial court advised the not to read newspapers, any about the case in the not to listen to news television, accounts of the case on radio or and not to discuss anyone. swearing jury, the case with Prior to in the the trial juror individually court if asked each he or she had followed the any court’s order not to read or listen to accounts of the case or anyone. juror to discuss the case with Each stated that he or Immediately swearing obeyed she had that order. after in the jury, jurors they just the trial court reminded the that had discharge obligation “faithfully, impar- taken the oath to their tially justly.” again forcefully Once the trial court remind- jurors they subject any ed the could not be outside impressed upon jurors influences. The the case court presented must decided on the in the court- evidence be room, again jurors any newspa- instructed the not to read per accounts of the case. The trial court further instructed the jurors anything not to watch on television the case or to about case, any discuss the listen to radio accounts of the and not to any people people case with other or let other discuss the case Finally, jurors with them. were instructed not to discuss among it was in evidence or case themselves while *47 progress. repeated The trial court these instructions at the end day prior of each of trial and to each lunch recess. cases, capital In emphasized we have the trial court’s “ obligation preserve ‘to integrity jury and minimize danger prejudice adjudicatory pro will infiltrate the ____’” Biegenwald, supra, State v. N.J. at 32 cess (quot Williams, supra, State v. ing 63). N.J. recog While we change administration, may disrupt nize that a of venue court it imperative capital that the in defendant case receive an impartial jury. grant Trial courts should not be reluctant to change capital motions for contrary, venue cases. On the grant liberally. courts should such perhaps motions While change defendant’s motion for of venue could well have been granted, do not we find that the court’s failure to follow that Instead, course constitutes reversible error. we conclude in case, Biegenwald, supra, State v. this as we did in that the voir dire assured the selection of an impartial jury: Although interrogation general in some instances the trial court’s was more searching less than that our counsel, review of the requested by independent of the voir dire was sufficient-
record reveals that the overall scope quality thorough probing jury. N.J. to assure the selection of an ly impartial [106 at 29.] record, Based on this we are satisfied that the trial court took voir dire to insure that an adequate during impartial measures impanelled. voir thorough The trial court conducted dire. discharged It any juror who stated that he or she had murder, prior read of the charges, or the O’Brien or had formed opinion guilt an juror about defendant's or innocence. If a case, indicated he or she had read or heard about the the trial carefully probed court juror juror’s knowledge about the the case Finally, and of the defendant. willingly court accepted suggestions questions from defense counsel about probed. be asked and areas to be Accordingly, we conclude that the trial court did not abuse its denying discretion in change the defendant’s motion for a view, change venue. our defendant failed show that a necessary venue was to overcome the “realistic likelihood of prejudice” resulting pretrial publicity. independent from Our persuades of the record review us that the trial court’s voir impartial jury. assured the selection of dire an Justice Handler his dissent this case and in Bey State v. (I), (1988), urges adopt N.J. Court to an appellate standard of determining enhanced review for reversi- capital According ble error cases. to Justice Handler’s standard, proposed error of constitutional dimension is reversi- ble unless the State can demonstrate that such error had “no *48 jury’s on the effect” deliberations and non-constitutional error is reversible unless the State can demonstrate that the error prejudicing jury’s had “no realistic likelihood” of delibera- proposed apply tions. N.J. at 116. The standard would phases capital of a prosecution. application all murder Its sentencing trial, not be phase would restricted to the of the but apply equal guilt rather would with phase. force to the Id. at 116. The standard would eliminate all other tests for determin- error, ing “plain reversible such as error” and “harmless er- ror.” proposes Justice Handler thus a new substantive stan- dard, exclusively capital one that he intends used prosecu- tions. (I), expressed
For the reasons the Court Bey State v. supra, reject we Justice N.J. Handler’s enhanced Cognizant severity standard of review. of the of the death penalty, searching scrupu- we shall continue to conduct a lously capital careful of the entire record of a case. review Nonetheless, appellate standard of re- substantive review disagree mains the same. We thus with Justice Handler’s finding alleged that certain are under the errors reversible standard. The on his enhanced stan- enhanced dissenter relies support dard of review to his conclusion that error reversible following grounds: any was committed on one of the failure of venue; grant change the trial court to motion for failure of grant interrogate jurors in this Court to limited remand to 1985; newspaper prosecuto- connection with a article of March respect rial misconduct with to the cross-examination of David Baldwin; prosecutor’s and the guilt summations in both the phases. penalty Finally, in an issue not raised either the defendant, State or the dissenter uses the enhanced standard of review to conclude that the trial court’s instruction to jury finding that its mitigating of a factor had to be unanimous resulted in charge requires a coercive that the defendant exposed not be to the death sentence on remand. We do not agree.
2. Excusal Cause Jurors Who Read or Heard about
the Case Defendant claims that this case is unlike Biegen- State v. wald, supra, many in that so jurors N.J. of the here read or heard about the ease. Biegenwald, State v. impanelled sixteen jurors they “indicated that had encountered case____ publicity little or no regarding the substantial [A] segment jury panel unequivocally ... and credibly dem- pretrial onstrated that publicity and, passed by,” had them thus, this Court was “satisfied that jury impan- that was elled impartial.” was as a whole Id. at 36. Biegenwald jury, case, like the in this anyone “did not include who having recalled previously read anything about other murders prior or a murder conviction.” Id. at 37.
After reviewing jurors’ questionnaires and after exam- ining extensively dire, them on voir the court did in fact qualify deliberating jurors as final some veniremen who recalled read- ing hearing or about defendant in papers or television but who remembered little nothing or about the defendant. Jurors who did recall some reported of the details in media accounts anything did not recall regarding prior the defendant’s murder conviction and his indictment for the O’Brien murder. Their recollection of the factual circumstances of the murder and slight. the defendant important It is to recall that in State v. Biegenwald impanelled one of the jurors knew of defendant’s alleged prior murders prior but not of his conviction. She apparently prior learned of the murders from other veniremen.
285
Yet,
by
the defense
convinced
her voir
the trial court and
were
disregard
that
could
what she had heard and could
dire
she
by finding
impartially. We affirmed that conclusion
that
serve
impartial
final
was an
and fair one. Id. at
Biegenwald
exposure
jurors
The fact that those
who admitted
recalled
37.
nothing regarding
prior
this defendant’s
murder convictions
matter, coupled
his indictment in the O’Brien
with their
impartiality, persuades
us to reach the same
assurances
namely,
that
Biegenwald,
conclusion we reached
State v.
impartial jury.
a fair and
defendant was tried
Implicit in defendant’s contention that
the trial court
any juror
cause
who read or heard
should have excluded for
notion that
is an ineffective
about
case is the
voir dire
determining juror prejudice
means of
under such circumstanc
whereby any
suggests
adopt
es. Defendant thus
that we
a rule
juror who has heard or read about the case would be automati
regardless
her recollec
cally disqualified
of the extent of his or
adopt
rule
which we find no
tion. We decline to
such a
fact,
jurisdiction.
such a rule
support
any
this or
other
long-established precedent holding
would be inconsistent with
acceptable jurors
entirely ignorant
need
not be
Florida,
Murphy
supra,
at
at
matter
hand. See
U.S.
799-800,
2035-36,
(“Qualified
at
3. Knowledge Certain Jurors’ argues jury’s Defendant that the verdict is invalid because deliberating jurors few were aware of defendant’s involvement support contention, in the In O’Brien murder. this defend- solely newspaper appearing ant relies on a article Daily the following sentencing. defendant’s Record conviction and The quoted deliberating jurors article statements made two juror. Ap- one alternate See Koedatich Wins Juror Defense Record, 10, 1985, peal, Daily Mar. col. 1. Although defendant was first indicted for the O’Brien mur- der, he tried murder was first of Amie Hoffman. Approximately during four months after trial the Hoffman but trial, Daily published the O’Brien an con- Record article cerning jury contrasting selection in the case. O’Brien jury selection with O’Brien case the Hoffman case, Judge juror the article any noted that Stein “excluded who knew of Koedatich’s arrest record.” Ibid. article approach prevent then related that “Stein’s conservative did not jurors some from linking Koedatich to both murders once began. trial The Daily Record has learned that some jurors who convicted Koedatich of Hoffman murder knew charged killing he was also with O’Brien. This information was brought not allowed jurors before the Hoffman because it prejudice could jurors Koedatich’s case. But a few said once got they charged the trial way under realized Koedatich was killing with Specifically, quotes both women.” Ibid. the article jurors, deliberating three were jurors, two whom Ms. Zacca- deliberate, Herzig, ro Ms. one alternate who did stated, Ms. Fascia. Ms. he Zaccaro “I didn’t know did it in the beginning through halfway but the trial I realized he linked to O’Brien.” also said Ibid. Zaccaro O’Brien murder was not until discussed after verdict was returned. *51 article, Herzig Ms. acknowl- it unclear whether From jurors other knew that defendant was edged that she or the However, she did having murdered O’Brien. charged with part jury’s in the played murder no state that the O’Brien “It had no Koedatich of Hoffman’s murder. decision to convict case,” Hoffman case bearing Hoffman she said. “The on the Ibid. Ms. Fascia “said evidence at the trial.” was based on Koedatich thought jurors most of the were aware that she sur- jurors murder. She said were charged with the O’Brien that during penalty phase of the trial prised to learn Ibid. Ms. in Florida.” Koedatich was convicted of murder juror.8 Fascia was an alternate Daily copy of the July
In defendant submitted a 10,1985, support to this Court in of his Record article of March remand, trial court. On motion for a limited remand to the for confidential proposed to move for a new trial and defendant support Rule pursuant 1:16-1. jurors interviews of the Court, defense counsel sub- the remand motion before this Daily Record article. conjunction mitted an affidavit with newspa- essentially repeated allegations The affidavit justifica- or any did not advance other evidence per article and opposed the motion jury interrogation. a The State tion for showing of arguing that defendant had not made a sufficient to Rule interrogation pursuant possible jury justify taint to an further, ripe and, motion was not for jury 1:16-1 that the recall 7, 1985, mo- we denied defendant’s adjudication. On October tion. jurors argument of these that the failure find little merit in defendant’s 8We knowledge charges of his in voir dire him of the O'Brien deprived
to state their
jurors’
right
challenges.
these
Our examination of
exercise
peremptory
disclosure. Nor is
made full
and voir dire discloses
they
questionnaires
e.g.,
regarding
during
See,
dire.
State v.
voir
there
evidence
deception
any
(juror
(App.Div.1976)
court on
did
advise
Thompson,
N.J.Super.
injected
jail guard
knowl-
into deliberations
he worked as a
but
voir dire that
work).
edge
law
of criminal
long
“[c]alling
jurors
We have
held that
interroga-
back
they
discharged
tion after
have been
extraordinary proce-
is an
only upon
dure which should
strong showing
be invoked
litigant may
have
by jury
been harmed
misconduct.”
Athorn,
(1966).
46 N.J.
investiga-
We determined that
tions into secret
deliberations should
readily
not be
used to
“disappointed
invalidate verdicts because
litigants would be
encouraged
tamper
jurors,
with
to harass them and to
employ
practices
fraudulent
in an effort
to induce them to
*52
repudiate
Moreover,
their
open
decisions.
an
invitation would
any disgruntled
be extended to
juror
might
who
choose to
destroy a verdict to which he
previously
had
assented.” Ibid.
(citations omitted). Furthermore, we have observed that “se-
crecy surrounding jury
necessary
deliberations is
only
prevent
unsettling
verdicts,
but also as an aid to the
process
deliberative
itself.
juror
Each
must
free
to discuss
thoughts
LaFera,
his or her
freely.”
97,
State v.
42 N.J.
106
(1964). Freedom of debate
jurors
would be stifled if
were
argument
aware that their
and votes would be broadcast to the
States,
1, 13,
world.
Clark v. United
289 U.S.
53 S.Ct.
(1933).
77
reasons,
L.Ed.
999
strong policy
For
courts
“have generally
accept
refused to
jurors,
purpose
from
for the
impeaching
verdict,
any
a
evidence of the discussion which
they may
among
have had
considering
themselves while
their
Athorn,
verdict.”
cases).
State
supra,
(citing
v.
46
at 251
N.J.
do, however,
We
recognize
general exceptions
two
“plainest
this rule when the
principles
justice”
require a new
Athorn,
trial.
supra,
First,
State v.
4. Voir Dire Defendant contends that the trial court’s permit refusal to defense during voir dire interrogate counsel to prejudicial argues error. He that neither our decision in Manley, (1969), 54 N.J. nor Rule 1:8-3(a)9 should be *54 1:8-3(a) Rule provides: attorney-conducted capital prohibit to voir dire in construed cases. supra, v. Biegenwald, decided this issue in recently
We
State
27-30,
v.
at
where we held that our decision in State
106 N.J.
apply
capital
v.
Manley was intended to
in
cases.
State
adoption
predecessor
of Rule
Manley, we announced our
l:8-3(a),
in its
form leaves
conduct of voir
which
current
court,
grants
permit
to
or
to the trial
it
“discretion
dire
supplemental
by
Bieg
v.
questioning
counsel.” State
restrict
enwald,
(citing
supra,
54 N.J.
Manley,
at
State v.
N.J.
281-83).
Biegenwald,
at
As we stated in
v.
our decision
State
penalty
to
cases
Manley
in
v.
death
extend the decision State
more
opinion’s
for a much
Manley
on “the
based
‘call[]
in
guarded
previously
discretion than
announced State v. Sulli
case,
van,
239-40;
capital
The trial court found: permit “I don’t see how I could her to sit as I Witherspoon understand the pressed case. I think I as far as I through can and taken her all the ramifica- [have] tions that reasonably I for type responses could she gave____ Mrs. Kolen ... maintains she could not vote circumstances____ penalty death no matter going what the I’m to have to excuse her.” challenges
Defendant
this exclusion because the court “made
attempt
no
then-existing
conform to
requirements
inquire
attempt
no
wheth-
Witherspoon____ The court made
two-stage process; whether she could
er she understood
factors; or,
aggravating
mitigating
and evaluate
weigh
penalty
the death
under certain
she could consider
whether
circumstances____”
exceptional
hand,
State,
adoption,
this
points
on the other
Court’s
Ramseur,
Supreme
supra,
106 N.J. at
*56
Illinois,
510,
v.
391
Witherspoon
U.S.
Court’s modification
(1968),
Witt,
1770,
Wainwright
A closer case is Mark Erich. Mr. Erich to the court that generally indicated he could “apply you the fact as to the law ... even if don’t like the principles any principle____” inquiry of law or then turned capital punishment.
THE COURT: Do have or other beliefs one about you any way capital punishment? MR. ERICH: Yes. COURT: What are THE beliefs? your believing have MR. ERICH: I trouble in capital punishment, Do THE COURT: have fixed view about whether have or you any you trouble not? MR. ERICH: No. willing THE COURT: Would to listen the facts of the case and you all consider circumstances before would come to a as to conclusion you or whether convicted of murder is to receive the death person penalty? MR. ERICH: Yes. telling me are THE COURT: Are that there circumstances under which you you telling would vote for death or are me that under no circum- penalty you whatever would vote stances, never death facts, you penalty? MR. ERICH: the latter. Probably *57 THE Are COURT: so fixed that view that couldn’t the you vote for you death under circumstances? penalty any
[********] mitigating MR. would ERICH: I if there was I would look factors, not say any for the death penalty. THE COURT: all? Any
MR. ERICH: at all. Any aggravating THE And even find the COURT: if that circumstances you outweigh mitigating the circumstances? MR. ERICH: correct. Yes, mitigating THE COURT: If there were no circumstances, would, however, you vote the death penalty? MR. ERICH: Yes. ******** give THE The law is First if I COURT: this. I indicated to the all, you you law, have to follow it? you Right. MR. ERICH: right?
THE COURT: You understand You can do that, that? say you Right. ERICH: MR. more area that If the we’re in a Now, question. THE COURT: explicit outweigh mitigating aggravating factors, a the factors on scale qualitatively is Do that? the death. understand you penalty MR. ERICH: Yes. against death if the THE Would nevertheless vote the you penalty COURT: outweigh mitigating aggravating the factors? factors, fact, mitigating against I vote if there are MR. ERICH: would death any penalty factors. THE COURT: Any? ERICH:
MR. Any. argued juror then should have been prosecutor that Witherspoon, every because “he used word excused under automatically against The trial except penalty.” vote the death ruling parties could deferred on Mr. Erich so that court rule, did it relied on the the case law. When court research Texas, Witherspoon 448 U.S. modification of Adams (1980), adopted the modification S.Ct. L.Ed.2d explicitly in Witt: Adams which level I think into is that
We reach the second which comes play juror juror if those whatever side of the is is not on, qualified proposition ignore law or to about would lead him or her to views punishment capital charged as follow the law and the facts to the law is violate the oath to apply Judge. juror gone juror and has said if there I and around with that have around single mitigating not not vote then I would would circumstance, impose—I for the death penalty. findings as to but that vote, I an actual realize really compared they’re juror in the to seems be troubled with capital punishment except concept limiting circumstances. most give just me one existed, if the converse for the alluded what Counsel aggravating I I’ll to death. wouldn’t factor and vote put certainly person dealing in the and this is what we’re with like that want qualify anyone converse. just I just me. went around can’t follow the law. It’s one question by He through it has it and and he to be disqualified. over it, *58 argues analysis was that the trial court’s Defense counsel his simply the result of juror indicated what flawed because been, he not process not that could weighing would have perform weighing process: “There are no standards set jurors forth the statute as to weigh aggravating how should factors; mitigating they weigh all must do is them. The juror might fact that a have a notion of how those factors weighed law, should be is not that, a violation of the except constitutionally, mitigating factors must be considered.” What juror repeatedly, however, indicated is if there were factors, any mitigating perform he could weighing process. juror While such a would not have been excludable Witherspoon, under since he did indicate that he could return a death factors, sentence if there were mitigating no under the Adams- Witt standard the test is whether his views would have prevented substantially impaired or ability perform his to his duties accordance juror’s with his oath. The responses inability indicated an precisely do this case what the law i.e., requires, perform weighing process. Since his scru- ples substantially impaired ability his capital to do what the punishment requires, statute the trial court’s decision to ex- clude him proper.
Other issues raised the defendant’s jury other selection claims were addressed Ramseur, and decided in supra, State v. 123. Specifically, N.J. defendant moved before trial for implementation of the so-called “Arizona” jury or “struck” system in the exercise of his peremptory challenges. In State Ramseur, v. we held that the defendant’s similar constitutional claim for a struck was “without merit” and failed “also as suggested statement of policy.” desirable state Our reason- ing equally applicable to defendant’s claim. Id. 106 atN.J. 239-43.
Defendant also relies on the defendant’s brief in State v. support Ramseur his claim Jersey’s that New process of qualification death jurors deprives capital defendants of the right impartial to an jury under the federal and state Constitu Ramseur, tions. we held that qualifica the death jurors tion prior guilt to the phase capital of a trial was constitutional under both the federal and state constitutions
297 did not offend notions of fundamental fairness. 106 N.J. 248-54.
IV.
Alleged
Errors
Trial
Third-Party
A. Evidence
Guilt
cast
the
guilt,
In order to
doubt
his own
defendant
attempted
regarding
possible guilt of
to introduce evidence
Sheehan,
part-time
high
a
football coach at the victim’s
Kevin
school,
phone
telephone
who made
calls to a
located
“obscene”
con-
of the cheerleaders’ locker room. The trial court
outside
dire examinations of the Sheehan-related witness-
ducted voir
himself,
es,
including Mr. Sheehan
order to determine
testimony.
admissibility
proposed
The court ruled
testimony
except for the testi-
proffered
was inadmissible
Longo. The court admitted
mony of Mrs. Clark and Detective
establishing
that a
testimony
purpose
for the limited
their
vicinity
in the
may
have been
car other than
defendant’s
night
of murder. The defendant claims
the reservoir on
by refusing to admit the evidence
that the trial court erred
disagree.
possible guilt
We
of Mr. Sheehan.
his
prove
entitled to
It is well established that
defendant is
else
the crime.
by showing
innocence
that someone
committed
139-141,
(1983)
Evidence §§
Wigmore,
at 1723-30
1A J.H.
Mississippi,
v.
410 U.S.
(hereinafter
Wigmore). In Chambers
1038,
(1973),
Supreme
Court
S.Ct.
93
cert.
sub nom. Cox v.
den.
United
U.S.
447
160
Hall,
(1980);
Pettijohn
v.
S.Ct.
599 F.2d
In State v. supra, we set forth the standard governing admissibility the third-party guilt: of evidence of agency A defendant of course seek to that another the may prove produced charged. death with which he It would seem in to if be sufficient principle engender the offered has a rational to a reasonable proof tendency doubt with case____ enough to an feature essential of the State’s think respect We it not to some event and its hostile leave connection with the prove case to mere conjecture. in the Somewhere total circumstances must there be some thread inducing regard bearing of reasonable men the as event the capable upon State’s case. The rests in a sound question exercise relevancy ultimately discretion. N.J. at 179 (citation omitted).]
[31 Mr. sodomy-murder Sturdivant was convicted of the of his stepdaughter. argued infant Defendant on appeal that the trial refusing erred court to admit into proffered evidence the testimony sister, Campbell. of his Mrs. She would have testi- days death, fied that seven before the child's she her observed own child can opener insert a into the vagina victim’s and claimed, show testimony, defendant would that rectum. Such girl’s the death. The evidence Campbell the child caused little Campbell child at established that the deceased trial intervening any during time week. together were at judge “trial could not find a fair basis We concluded death.” Id. for a between event connection [that] result, defendant did not meet the 180. As a we found admissibility for of such evi- articulated above standard dence. adopted a to that articu
Other courts have standard similar v. Sturdivant admissibility of evidence of lated in relevancy guilt. generally Trial courts must make a third-party determination, proffered probative value weighing the as testimony against countervailing considerations such capacity of the evidence to mislead or confuse the time, consumption just As the court undue name few. supra, 621 F.2d Armstrong, United States stated relevancy, subject the discretion standards of “fundamental *61 to to evidence and insure of the court exclude cumulative case, of testimo orderly presentation require of a the admission ny person a other the defendant prove which tends that than 953; Id. at accord charged.” that is committed the crime Crenshaw, v. 698 F. 2d at 1066. supra, United States 116, 103, Hall, at People supra, Cal.Rptr. 718 P.2d v. 226 at Supreme recently articulated a test that the Court California v. “To State Sturdivant: test in be closely resembles our own admissible, ‘substantial party the third evidence need show act; person committed proof probability’ of a that third capable doubt of defend only raising it a reasonable need guilt.” ant’s stringent criteria established more
Other courts have In Fortson v. third-party culpability. of evidence of admission 147, Indiana, Ind. 161, (1978), the Court N.E.2d 379 153 269 did person third possibility held that “the mere that some enough. tending incriminate another act is not Evidence facts which competent and confined to substantive must be 300 suspicion
create than a that other person more mere such Elsewhere, particular question.” committed the offense appellate recognized courts have a trial “to court’s discretion it speculative conjectural exclude such evidence if is too or or against too disconnected from the facts of the case the defend- LeClair, (Me.1981). ant.” v. 425 A.2d 187 In State supra, v. 2d Denny, 120 Ms. 357 N. 2d W. Wisconsin Appeals adopted tendency” test, Court of the “legitimate which as it described follows: “legitimate test asks whether so tendency” evidence is proffered time, remote in or circumstances direct place connection cannot be made crime____ long between the third and the as as motive and person opportunity long have been shown and as as there is also some evidence to connect directly charged a third to the crime which not remote in or person time, place the evidence should be admissible. [Id.
circumstances, 357 N.W.2d at (citation omitted).] The issue of whether the trial court abused its discretion in excluding of third-party guilt particularly evidence is a fact-sen- sitive one. In cases which have courts held that the evidence excluded, was improperly some link was demonstrated between party the third and the victim or crime. As we stated in State Sturdivant, supra, 179, in v. 31 N.J. at the total circumstances capable inducing there was “some thread reasonable men to regard bearing upon the event as the state’s case.” See also Green, (evidence supra, United States v. F.2d 247 co-worker, defendant, physically defendant’s who resembled was convicted for improperly similar offense excluded on rele- vancy grounds); Armstrong, supra, United States v. 621 F.2d (evidence matching that another man description money purchase robber had used bait robbery from excluded); Hall, improperly car was Pettijohn supra, (evidence crime, F.2d at eyewitness that sole to the besides *62 victim, identified as another the criminal is critical to issue guilt); of defendant’s supra, v. Morgan, United States 581 (evidence F.2d at selling drugs 936 that another was from the same house was in determining relevant whether defendant purchaser drugs); was a or distributor of United States v.
301
(evidence
person
Robinson,
110
shown on
supra, 544 F.2d
than defend
person,
video resembled a
other
bank surveillance
ant,
in the area
suspect
a
in other bank robberies
was
who was
(evidence
relevant);
Echols, supra,
On the other an examination excluded, properly third-party have held that evidence was “prove event proffer of evidence did no more than some hostile conjecture.” with the case to mere its connection [left] Sturdivant, at 179. There must be supra, v. 31 N.J. State or crime. link the evidence and the victim the some between (evidence DeNoyer, supra, v. 811 F. 2d at United States operating were in the commu prove other deviate sex offenders speculative); nity properly excluded as too remote and was 1040, (1981) 400, 439 A.2d Giguere, v. 184 Conn. during period of time there were (police testimony that same neighborhood was several assaults of women the same affording possible ground of properly merely as excluded person); People Luigs, 96 possible suspicion against another (1981) (evi Ill.App.3d 421 N.E.2d Ill.Dec. crime found near the scene of the dence that second knife was complete lack properly excluded because record revealed crime); Fort testimony connecting the second knife to the (evidence intending State, at 153-54 supra, son v. 379 N.E.2d may have committed crime that two of victim’s friends to show *63 302 joint prior activity
on the basis of their criminal with victim was properly being competent simply excluded as not “cast others”); Kent, 780, suspicion upon People Mich.App. v. 157 668, (1987) (evidence 674 that three 404 N.W.2d other fires fire, approximately principal at same time as the occurred any suggesting without facts that someone else set the other fires, properly raising suspicion was excluded as a mere that fire); principal someone other than defendant set the State v. (evidence (Mo.) telephone LaRette, obscene 648S.W.2d 103 during year prior received slaying calls victim to her was acts, as having excluded disconnected and remote no other another”), suspicion effect than “cast a bare den. cert. Missouri, sub nom Larette v. 78 U.S. S.Ct. (1983); Denny, supra, L.Ed.2d State v. N.W.2d (evidence may gotten 16-17 that murder victim have trou into dealer, major drug ble with person that victim owed another $130, may enemy, person gave that victim have had an shotgun exchange drugs, victim and that victim sold shotgun properly motive, excluded for failure to show opportunity, crime). or a direct connection with the case, prof-
In the instant the trial court concluded that the testimony fered did not draw a sufficient link between Mr. victim, failing and the thus require- Sheehan to meet the liberal Sturdivant, supra, ments of for the admission of third-party-culpability prof- evidence. Our examination of the testimony fered leads us to the same conclusion. proffer testimony Karyn
The first of evidence involved the Speak, Amie’s childhood friend and fellow cheerleader. Ms. Speak regarding phone testified on voir dire “obscene” calls pay phone made to the located outside the cheerleaders’ locker Speak phone answering room. Ms. recalled on several occasion, occasions. On each the male voice asked for Ms. Beth Thomas, a fellow cheerleader. On none of the occasions did the Speak Speak male caller ask for or Ms. Hoffman. Ms. Ms. actually testified that she the caller never heard utter obsceni- phone. ties over She also testified that she did not associ- anyone, man’s did recognize ate the voice with and she that of Mr. Speak voice as Sheehan. Ms. testified she had began Mr. working known Sheehan since the time he at the *64 testified, however, as Speak school a football coach. Ms. observing she never saw Mr. or Sheehan her the decedent. She also testified that did she not become aware that Mr. Sheehan person responsible was the for phone calls until after Ms. Hoffman’s death. proffered
The trial court found the testimony to be hearsay probative inadmissible and without value. The court there no phone found causal link between the taken calls Speak respon Ms. and the assertion Mr. Sheehan was court, for the murder Amie According sible of Hoffman. to the was “no there causal connection or link between the fact that in telephone she took two calls ... booth outside the cheer locker leaders’ room and death of Amie or her Hoffman apprehension kidnapping anything or or of that nature.” agree proffered trial testimony
We with the court that the regarding phone simply possible obscene calls raised a ground suspicion providing any without direct connection Stump, with the murder of Ms. Hoffman. 254 See State v. (evidence Iowa 119 N. 2d 210 must than W. raise more den., suspicion), mere cert. U.S. S.Ct. dire, (1963). Speak L.Ed.2d As Ms. testified on voir requested male caller at no speak time to to Ms. Hoffman. In fact, her testimony showed that the calls were to directed altogether. another cheerleader such Without direct evidence Sheehan’s to Mr. connection the actual murder or Ms. simply Hoffman such evidence of motive is too to be remote admissible. LaRette, supra, Supreme Court of Missouri phone proof
had the use of occasion address obscene calls as third-party guilt: regarding The trial court excluded defendant’s evidence properly proffered Fleming during obscene calls received to her telephone by Mary year prior the crime cannot be slaying. itself, and remote outside acts, Disconnected pointing other than the someone up purpose proved separately than to cast a bare can have no other effect other and evidence which accused; conjectural as to the commission of raise a inference or to another, suspicion admissible. another is not the crime by S. W.2d at 103] [648 insuffi- phone calls without more is of obscene Thus evidence admissibility party. The suspicion on a third cient to cast compelling less phone call evidence is even obscene were not even phone the obscene calls case where instant to the murder victim. addressed regarding the responded questions Speak Ms. also hosted at her home. parties Amie is said to have unsupervised parties the Hoffman she attended two testified that She not attend. party one other that she did and was aware of house parties. alcohol was served at both Speak recalled that Ms. and the lengthy colloquy defense counsel During a between *65 court, unsupervised par counsel insisted that trial defense attack, target easy an to Ms. Hoffman vulnerable to ties made attending parties. pushed to draw some any persons her When Sheehan, “target theory” and Mr. this connection between theory pursue to that counsel stated that he wished defense on a with one another and Mr. Sheehan were involved Amie basis, their rela Amie threatened to disclose consensual until According proposed parents. to defendant’s tionship to her made the killed the victim when she theory, Mr. Sheehan proffered The trial court concluded that the alleged threat. which are the nothing to do with the “events testimony had case,” proffered testi this and excluded the subject matter of mony as irrelevant. only far too remote from the proffered evidence not was
The support any connection of Amie’s murder circumstances crime, it and the but also Mr. Sheehan whatsoever between and Amie Hoffman. no link between Mr. Sheehan established Mr. attended these testimony was elicited that Sheehan No All of Amie Hoffman. that was parties that he was a friend or court, established, he was a recognized by the trial was that as
305 part-time high by coach at the school attended Amie she at was cheerleader the school. The theories that the pursue wished to aspect defense based this Speak’s Ms. testimony pure conjecture were and were nowhere supported aspect proffered the record. This of the regarding evidence possible guilt Mr. provides Sheehan’s the best illustration nothing evidence that does suspicions more than cast mere on a party. attempt third A defendant may to show that another However, had the motive to commit certain crime. may he proffered not do so where the evidence of motive simply af “possible ground suspicion against fords a person.” another 17; Denny, supra, State v. at People N.W.2d see also v. 509, (1977) Mulligan, Colo. (proof P.2d opportunity or motive proof insufficient without third party directly crime); connecting committed act him to Hill, (1985) (proof 196 Conn. 495 A. 2d of motive proof connecting insufficient without other party third of charged). fense
The ruling trial court’s next Sheehan-related concerned proffered testimony Mary of Mrs. Clark and Detective Longo. The sought defense testimony to introduce their order show sports that Mrs. Clark heard a small car in the (near vicinity home) approximate reservoir her time of The present murder. defense also wished to evi dence that Mr. sports Sheehan owned a small car. The com support bined effect of this evidence be to would the inference defendant, that the murderer Mr. rather Sheehan than larger Chevy. court, who drove a trial adopting a broad *66 view of relevance due to the circumstantial nature case, testimony State’s the proffered ruled that of Mrs. Clark Longo purpose and Detective was for the of support admissible ing the inference that car other than the at defendant’s was approximately morning reservoir at a.m. on the 12:40 after the murder. ruling admitting the testimo- the trial court's agree
We with Longo purpose for the limited Detective ny of Mrs. Clark and in the the defendant’s was showing car other than that a view, In our such evidence of the murder. vicinity at the time tendency prove that a third legitimate to in fact have a did context, the crime. In such a committed the person could have from the too remote cannot be labelled proffered evidence crime, theory particularly when the State’s circumstances murder transported by car to the the victim had been court’s decision that agree with the trial We likewise site. sports possession of a small regarding Mr. Sheehan’s evidence link did not draw a sufficient the time of the murder car at the victim and hence was inadmissi- Mr. Sheehan and between ble. Amie any draw connection between
Because it failed to Sheehan, court also deemed inadmis and Mr. the trial Hoffman Vanderbush, an proffered testimony of Mr. Russell sible County of the Morris Investigator Major in the Crimes Unit Vanderbush, According to Mr. Mr. Shee Prosecutor’s Office. p.m. him the hours of 6:00 allegedly told that between han 23rd, busy preparing report he was 12:00 a.m. on November cards, deposit completing the he He that after cards. claimed Miko, coworker, Ms. who lived ed in the mailbox of a them reportedly told Mr. Vanderbush that Maplewood. Mr. Sheehan stopped Maplewood Police way deposit the cards he on his to directions to the patrol car to ask for officer in a blue-and-white supposedly Mr. Vanderbush Mr. Sheehan told Miko residence. Gruning’s, he a restau depositing after the cards went Vanderbush, Orange. According to Mr. rant located South Gruning’s, frequently claimed that he went Mr. Sheehan his friend David question spoke he day on the where to Mr. Vanderbush that allegedly He also mentioned Butler. evening working Gruning’s on the Mills was Ms. Patricia November 23rd.
Mr. testified that he set out to verify Vanderbush veraci- ty shortly of Mr. Sheehan’s account after the 29th November Miko, allegedly interview. Mr. Vanderbush Ms. interviewed him who informed that she had no contact with Mr. on Sheehan Vanderbush, evening According the 23rd. to Mr. Cap- Maplewood tain Department Moore of Police him informed using department that his was not patrol blue-and-white cars on 23,1982, Maplewood November and that none of the officers on duty evening giving recalled anyone. directions to Mr. Mills, spoke Vanderbush also testified he to Ms. Patricia who told him that she did at Gruning’s not work on November 23rd. Mr. also Butler told Mr. Vanderbush that he did not see Grunings, Mr. Sheehan and that fact he had seen him approximately for year. Gruning’s one Mr. Butler worked at and mentioned to Mr. that Mr. Vanderbush Sheehan was not a frequent customer. provided
Mr. testimony regarding Vanderbush further infor- mation McLagan Randolph he obtained from Lt. James Department. Vanderbush, Township According Police to Mr. McLagan Lt. told him that Mr. Sheehan claimed inter- when company viewed him that he in the Dorothy of Ms. p.m. Cerbie the hours between of 8:00 and 12:00 a.m. on the night McLagan allegedly murder. Lt. told Mr. Vander- Cerbie, bush that on November 30th he interviewed Ms. who p.m. informed him that she was with Mr. Sheehan from 8:00 25th, 12:00 day a.m. on November 24th after the following morning. reportedly murder and the Ms. Cerbie told McLagan Lt. that she had no contact with Mr. Sheehan November 23rd.
Mr. testified on Mr. Vanderbush that based Sheehan’s uncor- alibis, conflicting roborated he obtained a search warrant Among investigators things, Mr. Sheehan’s car.10 other alleges twenty thirty suspects 10The there or other in this Prosecutor were case also whose cars were searched. link Mr. Sheehan to that would for fiber evidence searched *68 testimony, investiga- According to Mr. Vanderbush’s murder. as a result of the nothing of evidential value tors discovered search. argued testimony, defense proffered support prove that Mr. testimony tended to Mr. Vanderbush’s
that during investi- guilt of displayed a consciousness Sheehan proof of Mr. present further gation. The defense offered producing testimony guilt by consciousness Sheehan’s Root. The investigators Charlie Johnson Walter defense testify approached that when investigators would defense murder, Mr. in connection with the Hoffman September 1984 investigators that informed the began to sweat and Sheehan attorney. investigators The have to contact his they would Mr. testify they that when told Sheehan would further placed he had the knife they simply wanted to know where garage, in the Mr. Sheehan had told his mother to hide he profusely and ran off into his house.” “began to sweat testimony tended to argued that Mr. Vanderbush’s defendant guilt consciousness of that Mr. Sheehan demonstrated show investigation for the murder of Amie Hoffman. while under alibis, according and inconsistent This and his uncorroborated defendant, defend- an inference that he rather than created guilty Amie’s murder. ant was Vanderbush, testimony Mr. the trial hearing the After theory: up problem with the defense’s court summed tonight, am I two words Amie Hoffman. Why I want to think of Listen, you linking all asking with Amie we heard Mr. Sheehan What have you? thing linking with Amie Hoffman. heard a Mr. Sheehan Hoffman? I haven’t about. That’s what I’m concerned link, testimony finding Mr. Finding such Vanderbush’s no declared the hearsay hearsay, the trial court within ruling. agree with that testimony inadmissible. We evidence of an incrimi- sought also to introduce The defense allegedly made to Mr. Dale nating that Mr. Sheehan statement Jones, Charge of Homicide with the First Assistant then County Essex Public Defender’s Office. Defendant’s attorney, Kenny, Mr. claimed that he had been told Mr. Jones that Mr. (Mr. Jones) (Mr. Sheehan told him Sheehan) that he told his (Mrs. Sheehan) mother to “hide the knife in garage” after being called in questioning. dire, On voir Mr. Jones testi- fied that he in spoke fact to Mr. Sheehan on November 1982, in capacity his as an attorney, and spoke that he to Mr. Kenny in April 1982 Kenny when Mr. visited Mr. Jones for strategy meetings (Mr. Kenny’s) his preparation for the trial, Koedatich but Mr. Jones denied that he ever told Mr. Kenny anything regarding Mr. alleged Sheehan’s statement. denial,
Because of Mr. Jones’ Kenny Mr. called himself to the Kenny’s stand. Mr. co-counsel conducted the voir dire exami- nation of Mr. Kenny, who testified that he went to see Mr. *69 April Jones in preparation case, 1984 in for the instant at which time Mr. Jones informed him that he was Livingston at the Headquarters Police night on police brought the the Sheehan in questioning. for Mr. Sheehan’s mother reportedly called the Office, Public Defender’s requesting that an attorney be sent to son, meet her just who had been called in questioning. for According Kenny’s to Mr. testimony, Mr. Jones told him that he spoke briefly station, to Mr. Sheehan at the until Mr. Sheehan’s arrived, attorney and that Mr. Jones then him told that Mr. Sheehan had informed him that he had instructed his mother telephone via to hide the knife in garage. the recognizing
While that the evidence sought it to intro hearsay, duce was argued the defense that Mr. Sheehan’s statement to Mr. Jones should be admitted as a declaration against interest. The defense insisted that Mr. Jones’s state ment to Mr. Kenny should grounds be admitted on similar since obviously against it was professional his own interest to reveal his client’s party. According confidences to a third to the position, defense’s Mr. Jones’s statement Kenny to Mr. was particularly damaging to his own interests allegedly because he disclosed the attorney information to another who would use it client. exculpate
to
his own
The defense claimed that
Jones,
proffered evidence of Mr. Sheehan’s statement to Mr.
Vanderbush,
testimony
the earlier
Mr.
sup-
combined with
might
ported
possibly
the inference that Mr. Sheehan
be re-
murder of
sponsible for the
Amie Hoffman. The trial court
position
although
considered the defense’s
and determined that
alleged
statements of Mr.
and Mr.
Sheehan
Jones could
properly
against interest,
as
prof-
be admitted
declarations
was
fered evidence
inadmissible nonetheless because it did not
victim,
link
draw a sufficient
between Mr. Sheehan and the
thus
failing
satisfy
requirements
Sturdivant,
of State v.
supra,
The defense also conducted a voir dire examination of Mr. attorney, Sheehan. the advice of his On Mr. Sheehan invoked privilege against the fifth amendment self-incrimination in re- sponse virtually every question. Boiardo, Relying on In re (1961), authority, court N.J. trial demanded on invoking several occasions to know Mr. Sheehan’s basis for privilege. example, recognize For the trial court refused to privilege when Mr. Sheehan refused to answer whether he was Parsippany High Questions a coach at the Hills School. response successfully to which Mr. Sheehan was able to invoke 280-Z; privilege included: whether he owned a Datsun Hoffman; whether he knew Amie he whether knew about room; phone obscene calls made outside the cheerleaders’ locker gave Livingston whether he false information to the Police murder; regarding night his on the whereabouts of the where murder; night he spoke whether he ever *70 Jones; Dale whether he had met with Dale Jones since the night interview; alleged of their and whether he abducted and killed Ms. Hoffman. The trial court “the concluded that fact person right plead privilege against that a has a self-in- trial, crimination for an offense for which another is on does give any person rise to reasonable inference that the who privilege guilty invokes such a is of the crime for which another person charged.” evidence, ruling admissibility of the Sheehan-related
In on the alleged statements of Mr. Shee court found that the the trial admitted as declarations properly Mr. Jones could be han and Nevertheless, it held that the evidence was interest. against link between it did not draw a sufficient inadmissible because Mississippi, and the victim. Chambers v. Mr. Sheehan 297, the Court 35 L.Ed.2d supra, U.S. S.Ct. parties third hearsay admission of statements of considered the against penal interest. had been made where those statements case, third-party held that the declaration was In that Court was, however, link There a direct between admissible. Chambers, statement and the crime. Indeed in statement signed a party murder. The third had a confession to the was murder, separate and on three written confession to sworn persons that he had orally declared to three different occasions Larsen, Again, the murder. in Idaho committed State (1966), alleged proof consisted of an 415 2d 685 the offer P. three disinterested party made a third oral confession party told body found. The third persons shortly after the deceased, proceeded to relate he killed the and then them that Although the concerning the crime. Court certain other details third-party recognized that such out-of-court v. Larsen admissible, proffered it found this generally are confessions there was no “other substantial evidence inadmissible because clearly to show that the declarant evidence which [was] tend[ed] the accused guilty the crime for which person in fact the illustrative at 692. These cases are on trial.” 415 P.2d [was] determining proof courts have considered type against penal interest. third-party statements admissibility of connection cases, evidence drew a direct proffered In these of the crime. party and the commission the third between Here, support such a no factual basis the record there was finding. record, that the trial we are satisfied
After our review of the ruling proffered that the its discretion court did not abuse guilt excluded. As the testimony possible Mr. Sheehan’s *71 throughout trial court stated numerous times voir dire the Sheehan-related witnesses: I understand how that could be evidence that he committed the offense or don’t going give gives rationale —rises to a rational belief that he did it. I mean to of____ generous standard that I could think How are most
you probably going to tie this man to Amie Hoffman at all? you up evidence, ruling admissibility And in its final on the of the standard, applied liberally court most the State v. Sturdivant defendant, benefit, “giving every favorable benefit to the testimony to still could find this be admissible.” [and not] trial court concluded: looking In I’ve indicated for the two that I’ve been for any event, past days some evidence that there’s a link with Amie Hoffman in this case. There seems conjecture, offered —in an to surmise, to be suspicion attempt speculation something show that Mr. Sheehan either did or have had to do with her may something do with death —either did or have had to Amie Hoffman’s may all____ killing____ nothing linking There’s Mr. Sheehan to Amie Hoffman at I rulings, findings think I’ve made sufficient conclusions and as a basis my evidence____ decision not to of this do not find that permit any testimony [I] jury this could be submitted to a to create —to testimony permit conclude or draw inference that another other than any person person —that crime or that there
James Koedatich committed this is reasonable doubt as to other Koedatich whether a than James committed this crime. person sum, In we find that the trial court did not abuse its discre- ruling proffered tion inadmissible the evidence of Mr. Shee- possible guilt. han’s
B. Evidence Stab Wounds of Defendant’s Self-Inflicted challenges
Defendant the trial court’s admission into arrest, surrounding evidence of the circumstances defendant’s i.e., the self-infliction of the stab wounds and Mr. Koedatich’s subsequent police. call to the The evidence to which defendant objected testimony expert regarding of an involved witness wounds, the self-inflicted nature of the as well as the stab testimony patrolman who went to the wounded defend shortly stabbing. Supra ant’s home after his at 241. evidence, admitting prosecutor this the court found that the right give background “has a some evidence as to some of leading up the circumstances He has an obli [the arrest]. gation things in to exclude certain that chain of evidence which *72 Defendant a trial. deny so as to fair prejudicial would be Defendant a put I cannot an incident which the described But category; simply in that I cannot.” wound self-inflicted that the court should have invoked Evid. Defendant claims prejudicial. The court’s 4 to exclude this evidence as Rule. contends, so, constituted of to do the defendant a denial failure Harris, 37, 465 104 process Pulley law under v. due of U.S. (1984). 4, it 29 Evid. Rule. is L.Ed.2d Under S.Ct. if of the trial to exclude evidence “its within the discretion court substantially by the outweighed risk that its probative value is (a) consumption of time admission will either necessitate undue (b) danger prejudice or of confus- create substantial undue or Sands, misleading ing jury.” issues or of See State v. (1978). evaluations, making “In these the trial N.J. judgment.” with latitude court has been entrusted a wide J., (Schreiber, dissenting) Balthrop, 92 N.J. 144). Sands, A (citing supra, 76 trial court’s State v. N.J. ruling upset unless has an abuse of that will not be there been discretion, i.e., judgment. error of Ibid. there has been clear surrounding argues
Defendant that the evidence his arrest have prejudicial in that it contained information could was the O’Brien murder. caused the to associate him with reported being testified that defendant Patrolman Dormer flashing light by over on road a vehicle with a blue pulled defense, information had the top. According to the this O’Brien murder be- tendency to defendant with the connect by off the road reportedly Ms. O’Brien was forced cause Furthermore, re- there had been numerous another vehicle. being cars forced following murder of other ports the O’Brien road, flashing with a blue in some cases a vehicle off exclusively falshing light was light. Since vehicle with murder, argues, admis- the O’Brien defendant associated with disagree. We unduly prejudicial. such sion of evidence evidence, the trial court was admitting proffered any prejudicial connection potentially effect sensitive permit to the O’Brien murder: “We do not direct evidence on case as the State’s O’Brien matter. But that does not any link reporting mean sensible between the of this charge against incident and the ultimate Mr. Koedatich for this complied offense obliterated.” We believe that the trial court Balthrop, supra, State v. majority opinion this Court’s with There, 92 N.J. at 546. we requiring established a rule a trial finding court articulate on the record the basis for its danger thereof, prejudice, “substantial of undue or the absence objecting party proffered that would accrue to the if the Ibid. evidence were introduced.” trial court assured defendant that admission of the preju- evidence would not be to him no dicial because connection with the O’Brien murder *73 permitted. be Our would review of the record us satisfies court complied the trial with those assurances. We therefore judgment admitting find that trial court’s the evidence was sound. Testimony Diana Bossard
C. Identification challenges Defendant the trial court’s decision to admit the testimony Bossard, surprise of Diana a witness who came just with testimony prior forward identification to the close of the State’s case. story Ms. Bossard’s was that she been had Surprise County in the during Store Morris Mall the second there, or third week in p.m. October at about 8:45 While unkempt-looking she saw an talking older man in a loud voice young girl to long Oriental with hair. The man and the girl young rack; opposite clothing were on sides girl staring straight was ahead into the Mall while the man “was girl” trying impress by talking bikes, motorcy- this “dirt cles, racing, man, something of that nature.” The she recollect- ed, leather, “had on jacket, vinyl a tan or jeans,” thick and and “tall, light blond,” dirty was had sharp brown features (“his high, cheekbones were like his cheeks were sunken. He balding forehead”). was around the Ms. Bossard identified the Amie, girl as and the man as the defendant. On cross-examina- tion, having Ms. acknowledged pictures Bossard seen of both having read about newspaper, in the and defendant the victim having recently come only newspapers, in the the case her observation of the man admitted that She also forward. stated, glance,” and on voir quick look” or “a girl was “a had a and that dire, surprised be he beard” that she “would [if] prison previous that “he was learned the winter she had murder.” testify, permitted Ms. Bossard to trial court
Before the testimony should inadmissi- argued that her counsel defense quick (1) was a she admitted that the observation because ble “mass (2) having exposed to the she admitted been glance, and Amie Hoffman and to the surrounding the death of hysteria” fact, defendant surrounding arrest. publicity defendant’s she exposure publicity, to the for Ms. Bossard’s argued that but Surprise man in the defendant as the not have identified would Store. improper no conduct that there was
The trial court found surprise Defend- producing witness. behalf stated finding. The trial court challenge that ant does not now up information late shows with “just because a witness must auto- not mean “that that witness proceedings” does there ruled on whether matically The court then be barred.” testimony: Ms. Bossard’s “suggestible” about anything anything suggestible about her is whether or not there The second [issue] a reasonable measure me, proof beyond It by any testimony. appears *74 convincing; that there has been burden of lesser proof, clear doubt, any suggestible, that would nothing would be been done that which has externally changed sources or or outside make her influenced be —that would testimony forces. [********] suggestibility anything would tend to which which that is not
Now, approaches identification____ as to taint evidence any presented finding suggestibility, the violation of of in the absence of a It is rare, certainly rights, of that evi- and the value that identification constitutional person’s jury jury, to the would not be submitted submitted to the dence should not be their ultimate evaluation. for 316 now claims that the of this
Defendant admission testi mony due-process rights his Ms. violated because Bossard’s exposure pretrial publicity including photographs admitted to — suggestive of the victim and defendant —was so as to taint her assessing pretrial recollection. The for standards whether en testimony taint the of eye counters with defendant will an Brathwaite, 98, witness are set forth in v. 432 Manson U.S. 97 2243, (1977): S.Ct. L.Ed.2d 140 determining is the the of identification [RJeliability linchpin admissibility The factors to be considered ... include the of the testimony____ opportunity degree the witness to view criminal ... the witness’ of the attention, accuracy criminal, of his of the the level of description demonstrated at prior certainly confrontation, the and the time the crime the between confrontation. Against weighed corrupting suggestive these factors is to the effect of the identification itself. S.Ct. at 53 L.Ed.2d at [Id. at 2253, 154.] Ms. Bossard’s in-court of identification the defendant was not product any impermissibly suggestive law-enforcement procedures. Rather, pictures before us is issue whether the newspaper she saw the defendant her tainted recollec- words, tion Surprise of the incident Store. In other could seeing picture the defendant’s the newspaper have caused Ms. mistakenly identify Bossard to defendant as man she interacting saw with Amie at Surprise Hoffman Store? An response question affirmative certainly that would have reliability testimony. affected the of Ms. Bossard’s Also of potential credibility harm to her was the fact that she took come believe, months to forward with her identification. We however, it totality was reasonable under the credibility circumstances commit the issue of Ms. Bossard’s to the jury: good judgment juries, We are sense content American rely upon grist with evidence some element of untrustworthiness customary foi; intelligently are mill. Juries not so cannot measure susceptible they weight of identification that has some feature. testimony questionable [Manson Brathwaite, U.S. S.Ct. at supra, L.Ed.2d at 155.] proper
Thus it was for the trial court to issue treat the as one weight admissibility. rather than We find that the trial *75 making evidentiary in its discretion court did not abuse ruling. 3:13-3(f) to Rule Remedy
D. Pursuant case, its close of defendant’s the State announced At the call, witnesses, police officers who intention to as rebuttal two station. met defendant at his brother’s service claimed to have testify that defendant was clean shaven Both officers would had facial hair was during the fall of 1982. Whether defendant dispute throughout in the trial. Defense counsel question (1) grounds: the defense was objected proffer to the on various witnesses; (2) surprise the State again once forced to confront dispute defendant’s facial characteristics were knew earlier; (3) the defense should have named the officers suddenly required to call surrebuttal witnesses would be prosecutor responded by stating that he did short notice. The willingness testify regarding de- learn of the officers’ not case, time after the defense at which fendant’s facial hair until request for such information. responded the officers to his supplied defense with a argued that he prosecutor also night p.m. testimony previous at 5:00 report of the officers’ purpose disagree with the State’s The trial court did Rather, view, testimony. its seeking to admit the officers’ hinged on whether admissibility proffered of the evidence the names of the witness- should have disclosed or not testimony on hearing the officers’ at an earlier date. After es dire, testimony was admissible: the court ruled that the voir there’s me from what I’ve heard so far that ample opportunity it seems to Now, being guard I it, off met. There’s put by for that to be nobody testimony jury. I of the And don’t in the don’t see it shouldn’t presence why permitted go on with the case. see we can’t why arguments object, before. heard course, KENNY: but I, you’ve my MR. going Judge, I to have after this order is how much time am is, now My position to rebut their testimony? prejudice morning hearing No we’re summations. THE COURT: Tomorrow anything from what defense, that can’t be met all in terms of or surprise jury. hearing in this out of the I’ve been able to hear presence today Henderson, Randolph Township, police Lloyd officer doing September business testified that he had been *76 station, had met defend- service and defendant’s brother’s with clean-shaven. The described the defendant as there. He ant light hair was by that November defendant’s testified officer cross-exami- colored, may unshaven. On and that he have been photo defendant’s nation, showed the officer defense counsel “so, 8, 1982, and asked: there- dated November driver’s license fore, sir, picture is not truthful. you’re lying, either or this counsel concluded: that correct?” Defense Isn’t lighter than and the defendant’s hair was 27, 1982, yours, on October Now, Q: that sir? correct, have a beard or a mustache. Isn’t the defendant did not A: sir. Yes, lighter or in that his hair was than 12th, area, yours And on November 11th Q: he didn’t have a beard or a mustache. A: sir. Yes, a beard and a mustache. Isn’t And on November his license shows 8, 1982, Q: correct,
that sir? According A: to this, yes. being much darker than as a his —And it also shows his hair And, yours; Q: being that sir? correct, the same color as his hair is Isn’t fact, matter of today. A: It that way, yes. appears telling here about this, it that not the truth fact, sir, Isn’t Q: you’re today McLagan; fact, Isn’t that a sir? because were asked not to Chief your you A: not. Absolutely further MR. KENNEY: I have no questions. Gary elicited from testimony and cross-examination was
Similar (“His Gouck, hair Randolph Township Police Officer another mine, mine, clean- lighter lighter somewhat than was ... than shaven”). conclusion, the defense called three witnesses surrebut- Monahan,
tal, had worked with who Carol Charron Robert fall, and Nicholas Borze- defendant at his brother’s station ka, uncle, defendant’s who had had work done at defendant's grow- had been station. Each testified that defendant brother’s growing through it ing September, had continued a beard fall, from Ms. had dark hair. The State elicited and had jail defendant at the the admission that she had visited Charron night testimony. prosecutor also read to before her grand jury testimony that she could not remember witness her beard, couple of times he started “a if he had had a Mr. from Monahan Lastly, prosecution it.” elicited growing Henderson and seeing Officers fact that he remembered Gouck the station. testimony appeal violated that this
Defendant now claims 3:13-3(f) if provides that rights under Rule 3:13-3. Rule his discovery, subject to additional evidence party discovers of the existence thereof. the other or his attorney he shall notify party promptly brought proceedings during it is the attention time the course of the If at any it order such has failed ... may party of the court that a comply party grant a or continuance, or materials ... inspection permit discovery introducing or it the material disclosed, from evidence prohibit party enter as it deems such order appropriate. may *77 timely, of the defense was urges that the notification The State the officers hours before prosecutor the had interviewed since points out that Rule The State also the defense was notified. 3:13-3(a)(7) the names and prosecutor the to disclose requires attorney prosecuting the “any persons whom addresses added). (Emphasis evidence.” to relevant knows have question of view, reach the necessary it is not to our police that the two in fact unaware prosecutor the was whether department’s active of their as result officers knew defendant violation, it is assuming such investigation case. Even of the by of the admission to defendant was harmed difficult see how produce all of the able to testimony. The defense was officers' Moreover, necessary. defense deemed it surrebuttal witnesses vigorous was and of the officers counsel’s cross-examination ruling by anticipated in its court thorough, a the trial result testimony for that “ample opportunity observing that there arguendo Therefore, if to assume even were met.” we to be testimony, would admitting we erred the trial court that See such error as harmless. compelled disregard (1971). Macon, 337-38 57 N.J Misconduct Prosecutorial E. prosecutorial instances argues that various
Defendant phases warrant guilt penalty and during both the misconduct his sentence. three reversal of conviction and He cites instanc- (1) prosecutor duty es: violated his disclose names witnesses; potential (2) prosecutor’s and addresses of cross- step-brother examination of defendant’s constituted misconduct instruction; by (3) prosecutor’s the court’s and cured guilt penalty phases at the &ope summations and exceeded the inflammatory. and of the evidence were Because we have prosecutor’s alleged addressed elsewhere violation of Rule 3:13-3, supra present at we limit our discussion prosecutor’s alleged during misconduct the cross-examination step-brother during guilt of the defendant's the State’s phase summation.11 Step-brother
1. Cross-examination of Defendant’s Baldwin, The defense called step- David Paul the defendant’s brother, high who attended school and lived at in Novem- home Baldwin his ber 1982. testified that brother’s car had not been 1982; running had well November his brother a beard fall; question night that on the the defendant was upstairs playing evening, Atari most least until 9 o’clock; that the seized in sneakers the search of the house with bought associated the defendant Helen Cato were gift for the as defendant a Christmas December 1982. cross-examination, During prosecutor course of his *78 if asked Baldwin his brother had ever worked in Mendham. As question, prosecutor pointed
he asked this the to Mendham on a map introduced into evidence to show the the reten- area near Randolph Township, attempt tion in in an tanks obvious to show an between place association defendant the where the body in spite victim’s was found. He did this fact that he Koedatich worked in until knew that had not Mendham after the murder. during 11Discussion of misconduct summa prosecutorial phase penalty
tion at 336. appears infra prosecutor testimony went on to elicit that Baldwin County himself had to the Morris Mall on numerous been played games developed and that he video occasions there. He great games, the fact that defendant had a interest in video proceeded to ask Baldwin whether the defendant in then was crime, County allegedly Morris Mall on the afternoon knowing prosecutor’s that that was not the fact. The cross-ex- of Mr. amination Baldwin caused á motion for a mistrial. The court ruled on as trial that motion follows: going going THE COURT: ... is to have a but to trial, Nobody perfect they’re get going in a fair trial I’m to make sure of that. here, brought There are four items as the motion as the basis for the motion for mistrial. got of the when asked a said as soon as he detectives, One question yesterday, subject Then moved on to some- out —and himself. immediately stopped thing else which was unrelated to that kind of an answer. totally Mr. Rubbinaccio asked an do know Second, today open-ended question, you dangerous he lived. never what the where That’s a because know question you going Thanksgiving. witness is to answer. Do know where he lived before you Dangerous He asked David the brother of the Defendant. it Baldwin, question, should not have been But it was cured and then in the context of the asked. it was dealt was cured. with, way certainly asking young Item No. 3 is man if he knew had his brother worked when, this might Something I but direct, add, Mendham. well beyond scope having nothing this case that more to do with the facts of he importantly, give working long which rise to this December, started there in after the events indictment. give I’ll have to a curative instruction as to that. outrageous And I can fourth, is, the question quite frankly, say absolutely Mall to ask a did he know that his brother was in Morris on the witness, County the time that the victim in a case where his is so of, day disappeared presence with no factual basis critical to be a reasonable doubt, absolutely proven beyond for that question totally improper. I’ll to I cure it. it, have cure but can given strong- instruction, I am satisfied that curative forcefully, appropriate I I’m satisfied that there would be manner, a clear and articulate ly hope grant in this case. no need a mistrial accordingly The motion is denied. motion, Having denied the the court instructed disregard questions relating employment defendant’s possible presence the Morris Mendham and to defendant’s County Mall 23rd: on November
322 brought things
THE COURT: Before the witness is I have a back, to couple concerning morning discuss with some that were asked this you questions morning. because should not have this been asked I’ll deal with two they areas. Mr. asked if One. Baldwin was a about whether or not he knew his question in the Defendant this had brother, case, worked Mendham. There was not as I tell, far as can will not be factual basis evidence which has been any any being will or be to that asked. presented presented support question disregarded, nothing It is be to do with the in this evidence case. asked, The second was the effect or the substance question question Mr. if Baldwin was asked he knew that his the was in was, brother, Defendant, the Morris Mall on that afternoon. That afternoon County particular particular being I afternoon of 23rd of November. is There not nor will presume there be as far as one to this date, knows basis in facts of that any any question having been have asked. You not heard or it is will that have expected you any or reason to hear will hear evidence that afternoon Mr. any presence playing games Koedatich the Morris Mall video or his that County presence afternoon at all for that matter. question defendant raises is whether curative argues were instructions sufficient. Defendant that tell “[t]o jurors support that there was no factual asking basis whether the defendant worked Mendham and ‘it is to be ’ disregarded tantalizing ... is rather than and proba curative bly highlighted testimony prosecutor better than the could Farrell, State v. N.J. 99, have on his summation.” 61 107 Kelly, State v. 97 N.J. (1972); 178, (1984) (prosecutorial 218 cf. grounds misconduct only egregious for reversal if it so was Tirone, State v. 64 N.J. deprive trial); as to defendant of a fair (1974) (“In whole, the context of the as summation a say prosecutor’s we cannot comments so inflam were Bucanis, matory deny trial.”); as to a defendant fair denied, 26 N.J. 45, 56, cert. U.S. S.Ct. Ramseur, supra, State v. (1958). 106 N.J. L.Ed.2d 1160 320-24, prosecutor’s this Court held that cross-examination of witness, during made which he “several statements can providing personal as opinion construed his about defend guilt,” improper. reasoning ant’s The Court’s was that such as improper they those ... are because “[statements jurors’ divert from attention the facts the case before Id. at 322. Similarly, prosecutor’s them.” in this case *80 basis, that he knew had no from regarding “facts” inquiries untrue, wholly that would be inferences could be drawn which facts from the relevant jurors’ diverted the attention arguably necessarily prejudicial. in a manner that was of the case Ramseur, supra, 106 N.J. out State v. in pointed As we prosecutor guilty has of miscon- that a been the determination misconduct is inquiry. not end our Prosecutorial duct “does egre- so reversal ... unless the conduct was ground not for deprived defendant of a fair trial.” Ibid. The gious that it determining the for whether set forth the standards Court then “we consider whether denied defendant a fair trial: misconduct proper objection, whether timely made a defense counsel the court promptly, and whether the remark was withdrawn instructed stricken from the record and the remarks ordered Bogen, v. N.J. them. See State disregard jury to the Ramseur, supra, 322-23. N.J. (1953).” at State 141-42 v. Ramseur found that the defendant was in The Court concluded, however, trial; with the deprived of a fair it following admonition: willing engage in a conduct to obtain a conviction
A proscribed prosecutor oath____ sanction, harsh Because death is a case his uniquely betrays capital resulting prejudice from find prosecuto- will more readily Court necessity criminal matters; prosecutors case than other rial misconduct a capital obligations stringent ethical their who fail to take particularly seriously jeopardizing, strongly postponing, enforce- even risk cases thus capital at ment of the law. 324.] \Id. comported in this case followed procedure the trial court in Ramseur: the defense procedures outlined with the curative sustained, the court issued objected, objections were defendant’s conclude that We therefore curative instructions. honored. right to a fair trial was Guilt Phase Summation State’s 2. during the that occurred misconduct
The effect of the exacerbated, step-brother was of defendant’s cross-examination guilt phase during the State’s argues, misconduct defendant summation, prosecutor stated During his summation. following regarding “If he defendant’s arrest: had walked out there, have given he would been to kill.” license Before object (he defense could starting counsel had risen and was object), jury the court dismissed the and left the bench. When returned, instruction, court issued a curative telling jurors phrases that “such as ‘a to kill’ part license have no language appropriate your which consideration in case____ instructing you this I’m disregard time to this during last comment the last summation.” *81 grounds Defense counsel moved for a the mistrial on that the prosecutor insinuating killer, was that defendant was a serial responsible County. for other murders in Morris The trial agreed interpretation court that prosecutor’s with of the re- marks, but prosecutorial equivalent denied the motion: “It’s the courtroom____ soiling the floor the It very close to a suggestion, yet suggestion you but going that were to let go a serial ... and I frankly, murderer I think probably that’s do____ that, what it to was intended I’m satisfied because I strong cautionary took a recess gave instruction any ... ameliorated____” damage done that statement was Defend- ant improper submits that this conduct was incurable. argues prosecutor’s State that the comments in summa noting tion were proper, prosecutors are entitled to wide 413, latitude in summation. State v. 52 Mayberry, N.J. 437 (1968), den., 673, cert. 393 21 US. L.Ed.2d S.Ct. (1969) argues . The prosecu State also that the content tor’s reasonably statements could be inferred from the evi Carter, (1982). dence. State v. Lastly, N.J. the argues State even if prosecutor’s statements were objectionable, charge the trial court’s any “curative removed possibility fact, of prejudice to the defendant.” the State argues, the judge’s curative “focused jury’s instruction obligation attention on fairly, its to decide impartially, this case bias, and objectively prejudice sympathy.” without or record, we are satisfied that the review of the After a careful leaving immediately in the bench and quick action trial court’s prevented prosecutor’s statements instruction its curative “substantially the defendant’s fundamental prejudic[ing] from defense.” jury fairly the merits of his right to have a evaluate Here, Bucanis, 56. as supra, 26 N.J. at v. State context, timely there was “a supra, at cross-examination promptly remark was withdrawn proper objection ... from the record the remarks stricken ... and court ordered Ramseur, v. disregard them.” to State instructed Ramseur, supra, 106 at 323. As we stated N.J. however, prosecutor’s in this case fact that the misconduct “the way in no prejudiced defendant excuses cannot be said have warning prosecutors our it.” therefore reiterate Ibid. We will not hesitate to refer its “that this Court capital cases gov- special ethical rules possible violations of the own motion ethics committee prosecutors appropriate to the district erning disciplinary action.” Ibid. V.
Penalty Phase jury properly the trial court failed instruct Because phase, reverse the sentence death sentencing we must *82 sentencing proceeding. Specifically, the a and remand for new mitigating in the factors must requiring erred that trial court for a sentence less outweigh aggravating factors order the requiring jury that the must imposed, and than death to be mitigating a factor. agree unanimously the existence of Mitigating Factors Weighing Aggravating and A. 63, we held "that 106 N.J. at Biegenwald, supra, In find that the jury the must as a matter of fundamental fairness factors, mitigating that this aggravating outweigh factors In beyond a doubt.” that reasonable balance must be found to instruct case, properly trial court’s failure we held that the error, necessitated, plain that defend- as a matter of jury the death ant’s sentence be vacated and the case remanded a hearing. sentencing new Id. 62-69. case, jury,
In this the trial pertinent court instructed the part, as follows:
The defendant be to death must sentenced if are a satisfied you beyond aggravating alleged the reasonable doubt that factor or this factors case outweighed mitigating exist and that are not they by any factor. will if defendant be sentenced to find death a reasonable doubt you beyond aggravating mitigating existence of an factor or factors and that outweigh aggravating does not or which exist. Put factor factor factors another be sentenced to death way, are may you only defendant if aggravating convinced a reasonable doubt that the beyond or factor factors outweigh mitigating mitigat- or either that are to the equal they factor added.) ing (emphasis factors, by instructing
Thus the trial court erred jury death could imposed only aggravating be if the factors were outweighed any “not mitigating We factor.” vacate defend ant’s sentence resentencing. and remand for Jury Unanimity
B. Unnecessary to Find Mitigating Factor
The trial jury agree court instructed the that it had to unanimously about the or mitigat existence non-existence of a ing factor.12 The jury verdict sheet likewise indicated that the question had be unanimous on the existence of mitigating factors. II, Bey (1988), State v. N.J. we held agree
need not unanimously regarding the existence of a miti- — gating U.S.-, factor. Maryland, See also Mills v. jury. Your verdict in this case must unanimous, members You agree aggravating must as to the existence or non-existence or any factor agree mitigating You must as to the or existence non-existence factors. factor. added.) (emphasis *83 (trial (1988) penalty erred in court S.Ct. L.Ed.2d find in order to charge requiring jury be unanimous phase by II, Bey factor). the expressed For the reasons mitigating compels to vacate mitigating-factor instruction us trial court’s for a new penalty and remand the case the defendant’s death However, find instruc- proceeding. we do not these sentence supplemental same effect as the instructions tions to have the Ramseur, 304-15, supra, 106 N.J. we v. where State jury deprived permissible of a deadlocked they defendant found Instead, and, statute, than on remand a verdict other death. accordance with jury in court instruct the the trial should Bey II. Factor Jury Mitigating Hear Evidence C. Must the attempting to opened counsel penalty phase The with defense during penalty phase. prosecutor would the the waive accordance with N.J.S.A. consent, court, in trial not so the 2C:11-3c(1), Defense counsel then application. denied statement, following which presented to the trial court the sign to court: defendant wished before rights to to a motion to a new trial has me attorney explained my My mitigating case at the death phase my evidence of factors present penalty right concerning Amie to my the death of Hoffman also my appeal guilty I do not want verdict. I have told attorney conviction my anything that I want to be executed within days done on behalf and my being sentenced to death. my presence. signed the the trial court’s Defendant statement defendant- then informed the court that the Defense counsel nothing concerning absolutely do instructed him to had case, making sentencing phase including or of this mitigating statement, concerning miti- opening presenting no evidence factors, making gating no summation. instructions, defense counsel defendant’s
Pursuant to phase proceeding. presented during penalty no evidence any opening jury, to the nor did he offer made no statement He Indeed, sought to jury. defendant even summation However, trial court aggravating factors. stipulate stipula- and decided that no accept stipulation refused previous convic- accepted tions other than defendant’s would *84 328 murder, prove
tion of
and the State would
to
have
the existence
alleged aggravating
of the
factors. Defendant maintained his
position throughout
sentencing phase
presented
no
Indeed,
sentenced,
mitigating evidence.
even
he
after
was
defendant continued to resist
trial proceedings.
further
He
urged this Court
the stay
to vacate
of execution
court
that the
after
issued
the Office
the Public Defender filed a Notice of
Appeal on
behalf.
defendant’s
We denied his motion.
v.
State
Koedatich, supra,
Defendant now that his death sentence must be vacated because the mitigating heard no evidence of during penalty phase.13 factors Defendant makes two First, respect with this argues claims issue. he that his right present mitigating waiver his evidence invalid comply 3:9-2, it did because with governs Rule which acceptance guilty pleas. Secondly, argues he that defense evidence, present counsel’s failure to mitigating notwithstand- ing express his own regard, instructions in that constituted ineffective assistance counsel. unpersuaded by
We are defendant’s first contention Specifically, the waiver was invalid. disagree we with procedures defendant’s contention that employed instant case were insufficient to assure voluntariness. Defend may ant concedes that voluntary one make a of a waiver right. However, constitutional knowing waiver must be voluntary, depends and whether such a is waiver made upon totality whether the supports circumstances Zerbst, 458, 464-65, conclusion. Johnson v. 304 58 U.S. S.Ct. 13Defendant in the trial, O'Brien which he a life subsequent received mitigating sentence, allowed defense counsel evidence in the present penalty beg took the stand himself to life. We phase, his therefore presume sentencing hearing that at the new case, this defendant will not continue his mitigating refusal to allow evidence of However, factors to introduced. there no reason to be confident on this Hence, the issue must be question. addressed.
329
1019, 1023,
1461, 1466-67(1938);
Fitzpatrick
L.Ed.
v. Wain
1057,
(11th Cir.1986);
wright, 800 F.2d
United States v.
Ellison,
1102,
(7th Cir.1986),
den.,
798 F.2d
cert.
479 U.S.
893,
(1987);
McCombs,
107 S.Ct.
First the must have been in the sense relinquishment voluntary it was the of a free and deliberate choice rather than product intimidation, or coercion, Second, the waiver must have been made with a full deception. right being both of the nature of awareness the abandoned and the conse- of the decision to abandon it. quences Spring, (1987) v. 479 U.S. 107 S.Ct. 93 L.Ed.2d [Colorado 965 564, 851, 954, (quoting Moran v. 475 U.S. Burbine, S.Ct. 106 89 421 412, 1135, 410, L.Ed.2d (1986)).] knowingly Defendant claims that the waiver was not or voluntarily analogizes made. He entering this situation to the court, plea, argues minimum, guilty of a and that the at a stringent should establish standards as as those set forth 3:9-2, requires completion Rule which of a detailed Administra- “explaining tive Office of the form the Courts nature of the offense, possible penalties rights the and the he or she is waiving entering guilty plea.” when We find defendant’s best, analogy guilty-plea imperfect the to context to be at since rejected stipulation required the trial court the idea of a the event, prove during penalty phase. any State to its case the In our review of the record satisfies us that defendant’s decision forgo presentation mitigating during to evidence Rather, penalty phase was not the result of coercion. right knowing record indicates that his waiver voluntary. unequivocally expressed The fact that defendant court, attempt later his wishes to the trial combined with his to rights, appeal waive his convinces us that he was aware of the consequences of his actions. legal
Although unpersuaded by we are defendant’s reasoning, persuasive policy we reasons exist for not find 330 capital
allowing a defendant in a case to execute even a right his knowing voluntary present mitigating waiver of during penalty phase. policy evidence These reasons are substantially penalty based on the State’s “interest in a reliable Deere, People v. 925, 41 determination.” Cal.3d 710 P.2d Koedatich, Cal.Rptr. supra, (1985); State v. (O’Hern, J., concurring N.J. part, dissenting part); Hightower, N.J.Super. State v. 44 (App.Div.1986). Hightower, Appellate Division held that a may prevent not attorneys presenting defendant his from miti- gating Appellate evidence. The Division stated its reasons for allowing attorney present mitigating a defense evidence even express imposition over his client’s order not to contest the the death sentence: Certainly expressed tension exists between desires of the client as to his lawyer necessity penalty and the constitutional insure that the is ultimate circumstances,
extracted in a “wanton and manner.” In freakish normal lawyer required by the Rules of Professional Conduct to “abide a client’s concerning representation.” objectives decisions
[*] [*] [*] [*] [*] [*] statutory scheme, may impose penalty only Under our the death if the aggravating mitigating outweigh beyond factors factors a reasonable *86 jury allegedly mitigation, doubt. If the did not hear the evidence in it could difficulty discharging statutory, moral, duty. have its and indeed Our conclu- penalty sion is a reinforced recent amendment to the death statute which requires appeal an even must be taken if defendant does want to appeal Supreme proportional- our and that State must Court review the issue of ity request. of the sentence on defendant’s [********] says only appeal guilt phase The defendant now he wants the and not challenge penalty phase, inferentially challenge proportion- the also not the ality penalty applied guarantee of the him. death as But this is no that he way penalty imposed. present
will this still think if the death is Defendant’s may eventually proportionality require desire thus thwart or effective review penalty phase. jury the new trial on conclude We that the should hear all testimony. (citations omitted).] relevant at 44-46 [7d. Koedatich, supra, See also (O’Hern, N.J. at 554 J., 98 concurring part, part) (“What dissenting in in required is at the capital sentencing stage is an individualized determination on
331 the of the character of the individual and the circumstanc- basis es of the crime. The record before us does not disclose or how jury whether the was informed of the essential information concerning character of precede the the defendant that should jury’s judgment.”) reasoning find the in Hightower, supra,
We
State v.
43,
N.J.Super.
concurring
Justice O’Hern’s
and dissent
ing opinion in
persuasive.
State v. Koedatich to be
Essential to
application
our statute is that its
cannot result
death sen
“wantonly
freakishly imposed.”
tences that are
and ...
Fur
2762-2763,
Georgia, supra,
man v.
U.S.
S.Ct. at
(Stewart, J., concurring).
at 390
In Gregg
L.Ed.2d
v. Geor
188-95,
gia, supra, 428
atU.S.
These
are established not
accused,
interests of the
but also to enable a state to enact
penalty
penalty
constitutional
statute.
our death
death
Under
statute,
death,
may
jury
before a defendant
be sentenced to
aggra-
beyond
proffered
must find
a reasonable doubt that the
vating
jury
weigh
aggravat-
factors exist. The
then must
ing
against
mitigating
imposes
factors
before it
the death
penalty;
imposed only
the death sentence is
if the
finds
aggravating
beyond a reasonable doubt that the
factors out-
weigh
mitigating
prevents
A
factors.
defendant who
*87
mitigating
presentation of
evidence “withholds from the trier of
bearing
potentially
penalty
fact
crucial information
on the
deci-
prevented
if
from
no less than
the defendant was himself
sion
by
judicial ruling.”
introducing such evidence
statute or
Peo
Deere, supra,
Courts gives correspond any penalty death and other rise to “a tween reliability in in ing difference the need for the determination appropriate punishment specific that death is the case.” 280, 305, Carolina, supra, v. North 428 U.S. 96 S.Ct. Woodson 2978, 2991, 944, 961; Ramseur, 2d accord L.Ed. It self-evident that the state and its supra, 106 N.J. 326. overwhelming insuring an interest in that there is citizens have imposition penalty. Accordingly, in the of the death no mistake statutory duty every the constitutional and to review we have any judgment of death. Without evidence the record of mitigating missing significant portion are of the factors we imposition evidence that enables us to determine if the Hence, appropriate. penalty death we would be unable to discharge statutory requirement to re our constitutional and, therefore, safeguard judgment, view a we would fail to insuring reliability death-penalty deci state’s interest alone, ground penalty there must be a new trial. sions. On this turn to the issue of whether defense We nevertheless evidence, present mitigating despite his or counsel’s failure instructions, her client’s constitutes “ineffective assistance of counsel” in violation of the sixth amendment to the United problem arises from defense counsel’s States Constitution. position. untenable The Model Rules of Professional Conduct provide attorney under normal circumstances an is to concerning objectives a client’s decisions “abide context, however, 1.2(a). representation.” In this fol MRPC lowing may the client’s instructions result the client’s execu argues representation only such can tion. The defendant as ineffective assistance of counsel. We think be characterized not.
333
The standards for ineffective
assistance
counsel were set
Supreme
forth
Court in
Washington,
Strickland v.
466
668,
2052,
(1984).
104
U.S.
S.Ct.
Courts have reached
conclusions when faced with a
claim of
arising
ineffective assistance of counsel
from counsel’s
accession to a
present mitigating
defendant’s wish not to
evi
Deere,
353,
925,
People
supra,
dence. In
v.
41 Cal.3d
710 P.2d
13,
Cal.Rptr.
Supreme
222
the California
Court held that coun
sel’s
mitigating
failure to introduce
evidence—and his endorse
ment of his client’s decision to seek death —constituted ineffec
tive assistance. The court
attorney’s
held that “the defense
honest
right
but mistaken belief that he had ‘no
whatsoever to
infringe upon
operat
his
decisions
his
life’
about
own
[client’s]
deny
right
ed to
defendant his
to the effective assistance of
364,
931-32,
41
Cal.Rptr.
counsel.”
Cal.3d at
See also 43 729 Cal.3d P.2d 368, (1987) Deere; Cal.Rptr. (following 386 failure evidence, mitigating defense counsel to offer because defendant “expressly informed me that he didn’t want this kind of evi- ineffective assistance presented,” constitutes to be
dence 714 P.2d counsel); Burgener, Cal.3d People v. (1986) Deere; (following de- 1274-76, Cal.Rptr. parents, psychiatrist, not to call instructed counsel fendant “The cellmate, aggravating factors: stipulate former from introduc- deliberately refrained defense counsel fact that *89 death, penalty than support in of a lesser ing any evidence available, required rever- itself though such evidence was sal”). however, contrary proposition. is, authority for the
There
den.,
358,
(5th Cir.), cert.
McKaskle,
2d
361-62
727 F.
Autry v.
(1984),
1458,
the Fifth
The issue urges has essential no as the client act, that counsel had duty The state case____ must was for the and the client, lawyer decision control [T]he though advice. even determination, lawyer’s the client’s contrary accept [/<£ 278-79.] State, (Mo.Ct.App.1985) Larette v. 703 S. W.2d See also mitigation, so regarding (where prepared had evidence counsel movant’s consequence to introduce it “was that failure recalcitrance,” counsel’s conduct was reasonable under Strick- land, prejudice and no proven was guilt since the evidence of overwhelming). was Strickland-Fritz
Applying
case,
this
we do not find that
defense counsel’s
anything
reasonable;
conduct was
but
he
was,
all,
after
adhering to
by following
ethical canons
his
of the Strickland standard to
Application
client’s instructions.
situation,
short,
this
results in an anomaly: defense counsel’s
reasonable,
conduct was
but
the result of that conduct was
prejudicial.
view,
In our
simply
wrong
it is
standard to
apply. As Justice Broussard of
Supreme
the California
Court
opinion in People v. Deere:
aptly
so
concurring
stated
his
involving
I hesitate ...
to describe this case as one
"the ineffective assistance
right
of counsel.” The constitutional
to the effective assistance of counsel
belongs
facing
to defendant
A man
the awful
personally.
alternatives of
execution or life
without
imprisonment
could
possibility
parole
rationally
advantage
execution, or at
least feel
prefer
of life
comparative
dignity
not worth the
imprisonment
humiliation and loss of
he believes
mitigating
entailed in the
presentation
evidence. Here counsel satisfied
making
knowing,
intelligent
himself that his client was
a rational,
decision,
and then acted in accord with his client’s
I
wishes.
do not believe his conduct
*90
right
violated
constitutional
of defendant.
any
Although
obligations
counsel in this case fulfilled his
to his
he failed to
client,
assigned
presenting
a
mitigating
role
to him
perform
the
that of
the
by
state,
evidence
to assure the
necessary
of the
determination. But
reliability
penalty
assigns
the fact that the state
defense counsel a role which
him to
may require
act
to his client’s wishes on a
contrary
matter of such vital
to the
importance
troubling
client
a
presents
The defense of a
case
picture.
often
capital
requires
trusting
a close and
between counsel and
our
relationship
client;
decision
yet
against
counsel to violate that
to take a
requires
trust,
his
and
position
client,
evidence revealed to him in confidence
perhaps
present
his client.
by
alleviating
Trial courts should
methods of
this conflict.14 In
explore
some
might
presenting
cases it
mitigating
be desirable for counsel, in addition to
jury
evidence, to inform the
of defendant’s
In other
personal position.
cases,
might
jury.
the court
the defendant himself to address
permit
the
Alternative
mitigating
the court could call
with
evidence as its
ly,
persons
own
or
witnesses,
mitigating
new counsel to call
and
appoint
them,
on the record the
thereby place
evidence essential
to a careful, balanced
determination.
penalty
majority
14The
v. Deere,
personal
CalRptr.
(Broussard,
concurring).]
23-24
J.,
at
934-35,
at
P.2d
ground
the
of incom-
thus concurred “not on
Broussard
Justice
counsel,
steps
taken to assure
no
were
petency of
but because
369-70,
at
penalty trial.” Id.
Cal.3d
and balanced
fair
Cal.Rptr.
at 24.
P.2d
intro-
sum,
mitigating
the
factors must be
it follows that
position. As Justice
duced,
the defendant’s
regardless of
stated,
explore methods of han-
trial courts should
Broussard
preserve
need to
that are sensitive to the
dling this situation
relationship.
Brous-
trusting attorney-client
Justice
close
consideration, although
solutions merit serious
proposed
sard’s
Nor do we foreclose the
adopt
reject any
or
of them.
we do not
may
the trial court
may
that cases
arise which
possibility
mitigating
present the
evi-
compel defense counsel to
have to
contrary.
to the
despite a client’s instructions
dence
Penalty Phase Summation
D. Prosecutorial Misconduct:
oc
prosecutorial misconduct
Defendant claims that
In defendant’s
phase summation.
during
penalty
curred
infected the delib
view,
prosecutor’s remarks
summation
regarding the victim
inappropriate considerations
erations with
case.
personal beliefs about the
prosecutor’s
and with
telling
part
that “this
argues
Defendant
is how
and that
trial
is when we think of
victim”
...
“[t]his
Hoffman,
cheerleader, someone who
Amie
I want to know
future,”
improperly shifted
life,
prosecutor
had a
had a
who
background and record
from the
the focus of deliberations
crime to the
circumstances of the
particular
accused and the
U.S.-,
Maryland,
Booth v.
character of the victim. See
*91
(1987) (Maryland
that
2529,
statute
(1969),
den.,
cert.
U.S.
S.Ct.
338 contends,
misconduct, requires the reversal of death dissent agree. We do penalty. not 477 Wainwright, supra, recent v. U.S.
In the case of Darden 144, Supreme 168, 2464, States 106 91 L.Ed.2d United S.Ct. prosecutorial articulated test for misconduct similar to Court a Bucanis, supra, v. 26 the test that we articulated State N.J. 45, namely, prosecutor’s ‘so “whether the comments infected resulting as to make the conviction the trial with unfairness a ” 2466, process.’ 169, of due 477 at 106 at 91 denial U.S. S. Ct. (quoting Donnelly DeChristoforo, at 157 v. 416 L.Ed.2d U.S. (1974)). 431 94 S.Ct. 40 L.Ed.2d To warrant reversal prosecutor’s under our own standard a statements summa “substantially prejudice the tion must defendant’s fundamental right jury fairly to have a of his defense.” evaluate merits Bucanis, 56; supra, Biegen v. 26 at v. State N.J. accord State 40; wald, Ramseur, supra, supra, at N.J. N.J. (“While 322; (1984) Kelly, see also 97 N.J. State v. conduct, condoning aspects prosecutor’s all of the we con not that, trial, in the the entire did not clude context of it cause trial”); Tirone, supra, defendant be denied a fair State v. whole, (“In at 229 a N.J. the context summation as we say prosecutor’s cannot that the comments were so inflammato trial”). ry deny as to a fair do not find that We defendant prosecutor’s in this case reversal under remarks necessitate this standard. By
E. His Own Conduct object jury charge
Defendant to the nor to did used, sheet claims verdict but now that because verdict finding sheet did not that committed include defendant conduct,” “by murder his of death must be own sentence vacated. find little in defendant’s that the death
We merit assertion penalty express jury must be there no vacated because finding by committed the homicidal act his own defendant provides only person conduct. N.J.S.A. convict- 2C:11-3c 2C:11-3a(1) (2) ed of murder under or N.J.S.A. and “who act committed homicidal his own conduct or ... as an accomplice” death-eligible. shall be question no only proof
There is that the the jury submitted to *93 by the State was that own “by defendant his conduct” commit- allegation ted the murder of Amie Hoffman. There was no that Amie’s murder accomplice. involved an de- Defendant’s fense based on was denial and alibi. The State and the defense recognized single that this case involved a murderer. As the counsel, trial court reviewed proposed the verdict sheet with the prosecutor “by asked if the language his own conduct” was going to be added to the verdict The sheet. trial court insisted language that to include such would be redundant. The trial court added: suggestion jury anything
There’s no in this case that the would consider other or than that this defendant did it didn’t he Not like do it. there’s a third person along helping that. here; evidence like So I don’t think it’s any presented language. to add necessary object did Defense counsel not to the trial to court’s failure language request include this did he language nor that this be instructions, the added. Given facts and the trial court’s the jury guilty could have returned a verdict it found unless that defendant the act “by committed homicidal his own con- duct.” jury, charged
In its preliminarily instructions to the the court innocence, the jury presumption proof, on of burden of and Noting reasonable doubt. that identification was an issue in case, the court that the stressed the of on and burden the State extends to each element of each proof every proving charged. the course, includes burden offense This of specifically, of beyond identity perpetrator a reasonable doubt the the as the defendant of charged. with (Emphasis added). the crimes which he stands of instructions, preliminary charged After the jury these the court proven by on the elements the State each count. With 2C:11-3a(1) (2), respect the to N.J.S.A. trial court noted charged knowing that purposeful defendant was with the or Hoffman, explained murder Amie of thereafter the terms addition, In the court informed “knowingly.” “purposely” surrounding the crime could be jury the circumstances the that determining knowingly defendant acted whether considered summing up committing the murder. purposely or offense, emphasized the trial court elements of charge you regard to the determination make essential of for killing purpose- this case is whether the committed murder in defendant ly knowingly or I have defined these terms as you. kidnapped Hoffman, says Amie had the State What defendant death. intercourse with her and stabbed her to sexual In order for forced the State must establish guilty the defendant murder, find first you beyond killing Amie was committed a reasonable doubt that the Hoffman Koedatich, killing by defendant, Jerold and that the was done James knowingly purposely him or I have terms as defined those for you. evidence, after a consideration all are convinced If, you beyond doubt that caused the death Amie either reasonable defendant Hoffman added). knowingly, guilty. (Emphasis or then verdict should be your purposely proof only fair inference to be drawn from the adduced Amie trial defendant alone murdered Hoffman. was that Moreover, repeatedly instructed that it could find *94 guilty only “by if found that he his own conduct” defendant it Amie It had to find that defendant was murdered Hoffman. “perpetrator” of the murder in order to convict him. Ac- the definition, verdict, by finding cordingly, jury’s the reflected a “by his conduct” committed the homicidal that defendant own murdering Certainly any Amie Hoffman. where there is act conduct”), (“by must question at all on this issue his own it be Here, explicitly guilt phase. the in there jury submitted to the Furthermore, regard. question no in the court’s raised this charge, in view of the evidence and contentions of the State and defense, find left no alternative to the but to that either conduct, by did kill killed Amie his own or he not her defendant at all. murder, kidnapping, for
We affirm defendant’s convictions assault, aggravated imposition sexual but reverse the sentencing the a new penalty the death and remand matter for proceeding.
CLIFFORD, J., dissenting. any recognized Handler that under agree
I with Justice review, inescapable prose- the conclusion is that the standard of error, egregious given conduct resulted in reversible the cutor’s implications holding case and the of our of the State’s weakness Ramseur, (1987). Post at 365- in v. N.J. State Twenty-five years ago Brennan declared for this 370. Justice Court: against case the not the is it defendant, more, less,
The weaker the State’s obligation prosecuting man within that no bounds, attorney’s stay unjustly. prosecuting standing A rests his convicted attorney’s upon reputation prosecuting guilt “that suffer,” for shall not or innocence fairly, escape the number of convictions he obtains. In the heat of he advocacy may upon the full but he must with his talent forceful expression, propriety employ himself to fair comment the facts in evidence. confine upon (1953).] Bogen, v. 13 N.J. [State recognize outrageous Everyone seems to nature concludes, majority prosecutor’s conduct this case. however, harmless, given prompt cura- that the error was of the trial court. See ante at 323 and tive instructions court’s acknowledge I hasten to that the trial 325-326. would prosecutor, to secure this loose cannon efforts to corral courtroom, imagine on the heroic. I cannot how bordered attempt fashion some could have done more its the court by prosecutor’s of order out of the chaos left semblance by taking of liberties with the mangling of the evidence and his here, jury. But as in the view of in his summation to the record DiPaglia, 64 N.J. three members of Court prosecu- (1974), created the tactics of the “the circumstances * * * to remedial instruction suffi- did not lend themselves tor (dissenting at 306 potential for harm.” Id. cient to avoid opinion). though evidence for recalling that even “the
It is worth *95 sufficient,” legally a defendant is may deemed conviction be * * * preju- free from to a trial fair and “nonetheless entitled (1964). Jackson, 156 43 N.J. dicial error.” State justice as well as the ends of dictates that the means sound administration [T]he proceeding, just; there must be has undermined the where serious trial error 342 regard guilt. to our as to This reversal without own views is true particularly as lives are at stake and stricter are warrant-
where,
here,
appellate approaches
[Ibid,
(citations
omitted).]
ed.
Ramseur,
(reversal
supra,
also
See
State v.
N.J.
322-23
prosecutorial
of a criminal conviction is warranted if
miscon-
egregious
deprived
trial”).
that it
duct
“so
defendant of a fair
note,
A
of
Spano,
word
caution. This Court took
State v.
(1974),
plethora
prosecutors
Here, too, I would vote prosecutorial to reverse based on excess, vividly as so by recounted Justice Handler. I see little hope avoiding repetition deprivation of a fundamental right constitutional to a fair trial if we do no more than warning prosecutors capital “reiterate our cases” that dire consequences may from “special flow their violations of the governing prosecutors.” ethical rules Ante at 325. HANDLER, J., dissenting. majority upholds
The capital James J. Koedatich’s murder despite strong jury’s conviction evidence that the determination prejudiced by deluge pretrial publicity prosecutor’s doing only misconduct. so it not fails to honor previous professions different,” its requir- that “death is thus review, ing searching appellate but also frustrates the settled jurisprudence safeguarding right of this Court a defendant’s impartial a fair jury. majority’s trial before an review
343
searching;
perfunctory
the record is
and deferential rather than
judge’s rulings
publicity
its
the trial
on
and
conclusion that
sustained,
prosecutorial
and
miscon-
venue should be
error,
duct does not constitute reversible
fail to meet the
capital prosecutions exemplified by
standards for the review of
(I),
(1988).
in
Bey
this Court
v.
N.J. 45
State
upholds
rulings
publicity
the trial court’s
Court
unprecedented
despite
prejudicial
venue
local saturation of
despite
application
pre-trial publicity and
trial court’s
of an
antiquated
denying
change
erroneous and
standard
vein,
disregards
the majority
venue.
the same
the stricter
prosecutorial
capital cases,
adjudging
standard for
excesses
ordinary
acquiescing in
curative instructions that fail to over-
outrageous prosecutorial
come the effect of
misconduct. The
majority
process
appreciate
prejudicial
fails in the
that the
publicity
prosecutorial
effect of the
misconduct was exacer-
of the rather tentative circumstantial evidence of
bated because
guilt. Finally,
defendant’s
the Court also breaks with the
Ramseur,
implications
precedent
of its
v.
I. argued, concurring (I), I have Bey supra, N.J. 106-20, that an review appellate enhanced standard of *97 cases, capital in warranted and that this standard should be expressly by view, defined my this Court. such a standard First, two-step analysis. entails a consequence as a appeal posture capital appeals direct and the eventual re- quirement proportionality review, of a this Court should con- independent heightened duct an review of the record below verify fact-finding Second, in made the trial court. exemplified because the risk of inconsistent by results feder- death-penalty jurisprudence, al searching this review of the complemented record below should by clearly be defined appellate reversibility standard of that eschews normal stan- dards of such suggested review as “harmless error.” I have given that where a error is of magnitude, constitutional it must be deliberations; shown to have had no jury’s effect on the other errors must be shown to have had no realistic likelihood prejudicing jury’s (I), deliberations. Bey See State v. J., supra, (Handler, 112 concurring). “princi- N.J. at 116-17 A pal review, appellate virtue” of enhanced argued, I have “is requires it appellate ... court to see the case as a Thus, whole. critically each error ... is evaluated both for ... its individual effect on deliberations and for its effect on the structure of the entire case.” Id. at 117. This is nowhere more case, true than in the context of this underlying which the entirely conviction was based on rather tenuous circumstantial evidence. appropriate appellate
An
standard to
be used
a case such
this, i.e.,
capital
as
proofs
case
which the State's
are
tenuous,
by
was discussed
the Mississippi Supreme Court in
State,
(Miss.1985).
Fisher v.
this is most needed and most in cases approach applicable upon circumstantial evidence and where the matter of whether the defendant guilty suggest, at all is no means free of all doubt. As the facts this is an *98 State, supra, heightened 481 So. 2d at [Fisher case for appropriate scrutiny. 211.] approach This reasoned sharply contrasts with the review undertaken majority. Although Jersey, New we treat circumstantial and direct similarly evidence in terms of state, proof Fiorello, burden of on the see State v. 36 80 N.J. (1961), the central concern of the Fisher court was the weak- evidence, ness of the state’s which underscored the need for Thus, appellate enhanced review. to the extent an en- hanced standard of juris- review creates a distinctive criminal prudence cases, applicable capital to defendants in this does not argue against so much justify an enhanced standard as it. See Comment, “Deadly Capital Mistakes: Harmless Error in Sen- tencing,” 740, (1987). 54 U.Chi.L.Rev. 747-49
Moreover, adoption of such a standard of review will not prove to be unworkable in terms of the trial of cases it because governs further, only appellate emphasize, courts. I would express that an enhanced capital standard of review for murder appeals applied jurisdictions, engen- has been in other without
346
dering procedural
consequences
chaos or deleterious
and with
making
See,
capital prosecutions impossible.
out
e.g., Fisher v.
State,
(Miss.1985);
State,
481 No.2d 203
Weeks v.
That urgency attends this case. As can be inferred from the majority’s painstaking facts, account of the the State’s case kill one saw the defendant extremely proof-sensitive. No was fingerprints prints or tire to tie There were no Amie Hoffman. No incidents of the the scene of the crime. the defendant to defendant, in purse, wallet—were found on jewelry, victim— car, microscop- home. No or in the defendant’s the defendant’s car. None was found in the defendant’s ic trace of the victim crime, of the and recovered at the scene of the debris observed (and these), only the most common few of the fibers leg, mini-pad, scrapings taken from the victim’s none of the anything of the defendant. clothing, and footwear matched did human and animal hairs found on the victim and other Pubic spermatozoa type The was inconclu- match the defendant. sive, defendant’s. The thus could not be matched with on contested and inconsistent identifica- case was based State’s victim, linking defendant to the evidence tions (which evidence had more of defendant’s arrest circumstances murder circumstances of defendant’s other to do with the trigger capacity juror recollection charge, and thus had charge), general correlation between fibers of that and on a carpet and foam fibers of the victim and the common found on acknowledged that noth- experts defendant’s car. State’s comparisons, on the fiber but ing conclusive could be said based resulted in a of correlations argued that the combination against strength of the evidence “strong association.” The by repeated insinua- augmented, regrettably, defendant was evidence, of not in prosecutor of facts that were tions and, as the trial prosecutor knew were not true “facts” that the to the serial acknowledged, by prosecutorial allusion court and, indirectly, to the County Morris killings that had terrorized in another of the serial status as the accused defendant’s killings. insufficient; to the
I contend that the evidence do not rational, on the factual impartial jury, contrary, I believe that a guilty. The below, the defendant could have found record however, appeal, is whether question on this con- good conscience be defendant’s fate can deliberated *100 impartial, sidered to have been jury and whether that by corrupted influenced factors that its I emphasize verdict. proofs, however, tentative nature of the State’s because as certainty proofs diminishes, the likelihood that error prejudicial will be correspondingly. increases This fact should appellate inform our capital review of this conviction.
II.
The murders of Amie Hoffman and Deirdre O’Brien and the
subsequent arrest of James Koedatich were
by
attended
mas-
publicity.
sive and intense adverse
The Court itself acknowl-
edges the nature and
publicity.
duration of this
Ante
Williams, supra,
265-66. See State v.
The trial court attempted to counter the adverse publicity by giving potential jurors cautionary exposure instructions as to the publicity.1 Significantly, the court excused for any cause prospective juror knowledge who indicated of the defendant’s prior murder conviction or his indictment for the murder of prospective jurors required 1A11 questionnaire, were to fill out a answering questions Twenty-six jurors addition to from the trial court. were by questioning excused questionnaires. the court before on the basis of the Of prospective jurors they the 79 who were asked if had read or heard about the case, not; they nine deliberating said that had four of these nine became jurors. Forty knowledge of the 70 who indicated some of the case were excused for cause the court. jurors trial, during Deirdre O’Brien. Of the fifteen who sat only defendant; anything five had not read or heard about the *101 remaining jurors something had read of the case.2
Defendant deriving raises a host of issues from the court’s manage pretrial publicity. efforts to the effect of this massive particular, alleges defendant that the court’s conduct of the voir dire inadequate, failing that the court erred in case, jurors excuse for cause who had read or heard about the excluding and that the court erred in death-scrupled jurors. two However, majority’s it is the treatment of the two critical issues relating prejudicial pretrial publicity pro- to the effect of the — priety of the court’s denial of the change defendant’s motion to venue, post-trial and the effect of the disclosure several jurors they during had realized the trial that defendant had charged require been with another response. murder —that a
A. sustaining The Court’s decision the lower court’s denial of a change merely apply of venue reflects not the failure to an review, enhanced standard of but also the frustration of the principle underlying jurisprudence safeguarding our jury impar- tiality: jury’s independence from extrane- “Preservation Corsaro, State v. N.J. judicial ous—even 107 —influences.” (1987). respecting change 350 The law motions in State v. capital initially presented venue in cases was Williams, supra, N.J. 39. expounded 93 It was further arrest; Deelsnyder 2Judith had read about defendant's Loraine Zaccaro and earlier, primarily years Glenn Cosentiono had read about the case two but nothing background; recalled defendant’s Elizabeth Criares had last selection, read about the case three months before and associated the Budd, Brown, Andrews, stabbing; Margaret defendant with Alice Deborah arrest, Herzig knowledge Barbara each had of the case and of the defendant’s Fascia, any knowledge background; but disclaimed of the defendant’s Leslie alternate, reading something years an remembered about the defendant "two found, ago,” reading something being body and remembered "about out on Route 80. I don’t remember.” (I), (1987). Bey v. See State 106 N.J. Biegenwald, v. State Biegenwald 45. The Court observed supra, 112 N.J. Wise, 19 forth in v. N.J. old test as set State under the obtaining change (1955), defendants succeeded 73-74 few capital modified “Accordingly, in 1983 in a case we of venue. burden, conferring trial courts the discretion the defendant’s ‘necessary to overcome the realistic change where it is venue ” publicity.’ at 33 pretrial from N.J. prejudice likelihood of 13). Williams, n. It should at 67-68 (quoting N.J. outset, agree parties all at the therefore —and be noted —that Wise; applying as this initially erred State v. the trial court the effect of was to Biegenwald, held in Williams Court convincing clear and “[modify] the defendant’s burden” from to a “realistic impartial jury cannot be obtained proof that an pretrial publicity.” 106 N.J. at prejudice likelihood of from 13). Williams, 67-68 n. *102 supra, 93 N.J. at (quoting State v. therefore, us, whether the defendant question before convincing impartial an proof that could show with clear and obtained, whether, of given the saturation jury could not be but a “realistic could show that there was publicity, the defendant prejudice. likelihood” exists, likelihood” the assessing such a “realistic whether held, distinguish first “between courts must
Biegenwald Court by publicity atmosphere corrupted is so cases in the trial which pretrial in which may presumed ... and cases prejudice that extensive, intrusive, making the determi- publicity, is less while publicity impartiality the on the issue the actual effect of native (citations supra, 106N.J. at 33 Biegenwald, panel.” meets, believe, omitted). in I pretrial publicity The this case and, presumed, finding prejudice should be standard for moreover, actually jury’s an effect on the publicity had Biegenwald. in meeting either of the two tests impartiality thus Court, surrounding the case According publicity to the intense, dissipated over time and prejudicial its effect was but The defendant was arrested prejudice presumed. so cannot be 1983, December of and January in not indicted until was nearly years two after September not tried until was 1984— Hence, that it believes publicity. Court the most intense “presumptively that was not publicity with was confronted publicity of the consequences prejudicial” and therefore the juror effect on in terms of its actual properly could be assessed Ante at Further, impartiality. disagree. strongly 273-74. I was impaneled jury that concludes that Court deny the sustaining trial court’s decision to impartial, thus venue, part in on the trial court’s a decision based motion for strongly disagree I wrong standard. application initial publicity, analy- an majority’s analysis pretrial of this with the not, believe, record. supported by I sis that is
1. observes, appellate in which courts majority cases As the presumed prejudice have that a trial court should have held arise out of change relatively rare and granted a of venue “are was, Ante 269. It the most extreme circumstances.” Williams, in course, recognition of that fact that this Court Mississip supreme as California courts states such granting changes of venue standard for pi, reformulated the prejudice. of a realistic likelihood terms of the existence comports with the standard jurisdictions from whose case law See, is, therefore, irrelevant. modified Williams standard Cir.), Jenkins, writ (La.App. 3 v. 2d e.g., State 508 So. (“defendant prove more denied, (La.1987) must 2dSo. surrounding the public facts knowledge of the the mere than prejudice exists such offense,” “that there and so must show impossi trial is community that a fair mind of the the collective App.1987) (Iowa 192, 193 Lanscak, N. ble”); 404 W.2d *103 that the defend likelihood (defendant show a “substantial must in the coun impartial trial a fair and ant cannot receive State, 496 N.E.2d 401, (Ind.1986)(to v. 404 obtain a ty”); Slone of commu venue, must adduce “evidence change defendant of the trial court to convince prejudice or sufficient nity bias further, county;” he could not obtain a fair trial in that “[i]t change warranting a of prejudice local insufficient to establish 352 jurors
venue unless there is a demonstration that
were unable
(citations omitted);
Bobo,
fairly”)
State v.
727
deliberate
—
945,
(Tenn.),
denied,
U.S.-,
108
948
cert.
S.Ct.
S.W.2d
204,
(1987)(issue
change
The relevant case as the majority acknowledges, is that jurisdictions sharing from Jersey’s New “realistic likelihood” Thus, majority quotes standard. with Ante at 270-71. Superior approval Court, 375, 383, Maine v. 68 Cal.2d 66 Cal. 724, 729, 372, Rptr. (1968) 438 P.2d 377 (quoting American Bar Project Association Justice, on Minimum Standards for Criminal Relating Press, 3.2(c) Standards to Fair Trial and Free (1966)), § Supreme which the California Court states that venue should changed be where “there is a reasonable likelihood that in the had____ relief, absence of such a fair trial cannot be A showing prejudice of actual required.” shall not (quoted 271). ante at explained California Court the standard as follows: “The
phrase ‘reasonable likelihood’ denotes a lesser standard of
proof
probable
Further,
than ‘more
than not.’
...
when the
trial,
issue is
any
raised before
necessity
doubt as to the
county
removal
another
should be resolved in favor of a
change.”
venue
Superior
Martinez v.
Court
Placer Coun
574,
ty,
578,
502,
503-04,
701,
Cal.3d
629 P.2d
174 Cal.Rptr.
(1981) (citations omitted)
702-03
(emphasis added).
In deter
mining
change
that a
granted,
of venue should have been
California
(1)
Court has relied on such factors as
element
“[t]he
always present
sensationalism
reporting
of events con
cerning
capital case,”
581,
a
id. at
apply them. The concerning capital only present but events a case” was of by atmosphere in heightened this ease understandable by multiple community created the fact that there were terror and, months, arrest; no fact murders for additional suspect ultimately arrested had served eleven that the who was publicity murder. The the case years Florida for Although County pervasive inherently and sensational. Morris town,” hardly atmosphere of terror was closer a “small community, thus might expect one of a to what smaller indication venue Court’s second establishes California Moreover, status of the victim changed. the relative should supports change a of venue. Residents and the accused Amie County the contrast between Morris were saturated with Hoffman, woman, where young, a well-liked school beautiful cheerleader, high and the defend- grades and was a she earned community ant, essentially stranger to the who had returned having years eleven live with mother after served his short, cited all the California factors Florida for murder. here; present prejudice approval majority were with presumed. should have been adopted been to California’s has approach
An similar stan- the “reasonable likelihood” state embraces another Mississippi years dard, Jersey, Mississippi. As in New change of venue. extremely it difficult secure made point been have Recognizing past “discussions that its cryptic, superficial,” and that an unbiased is not “[i]f *105 impaneled, it does not matter how fair the remainder of the be,” State, proceedings may supra, Fisher v. 481 2d at So. 215-16, has, Mississippi Supreme in Court a series of beginning State, decisions with Johnson So. 2d 1195 (Miss.1985),refined its test of changed when venue should be require “where, changed that venue totality under the of the circumstances, that, appears reasonably likely it in the absence relief, right of such may accused’s to a fair trial be lost.” Fisher, supra, (citing 2d Superior So. at 220 Maine v. Court, 377, supra, 68 at Cal.Rptr. Cal.2d 438 P.2d at at 729). Mississippi Court, The pursuant standard, to this new has posited certain nonexclusive factors that serve to establish an presumption irrebutable prejudice, mandating change a White, (Miss.1986). venue. State v. 495 So.2d This test, applied heightened review, to be under a standard of includes as community’s “supposition a factor the that appellant guilty was of other crimes.” Id. significant
The most Mississippi applying case these elements State, supra, is Fisher v. prosecution 481 So. 3d a great bears similarity Fisher, factual to this case. like this case, multiple rape-murders involved in community which the by was terrorized length both the nature of the crimes and the of time for which the assailant large. remained at at Id. 206-07. Both cases evidence; were founded on circumstantial indeed, against seems, balance, case Fisher to be the two, stronger of the police jewelry as the found of the victim in Fisher’s truck. similarity end, however,
The does not with the circumstances crimes; rather, it extends to the nature and extent of the publicity and to the character of the Mississippi accused. The Supreme pretrial Court focused on the extensive publicity in light of that trial change court’s denial of a motion for a venue, stating, “Our dominant concern is the saturation media coverage television, newspaper given radio and prosecu- — — Larry tion of Fisher.” 481 Every So.2d at 217. factor cited great importance” as issue “of to the venue the court Fisher First, multiple crimes present in this case. there were is also generated community aware- by an unknown assailant which multiple offender on ness attendant fear there was Second, reportage there extensive loose the area. charged single “a sex-related that the defendant was with Third, reported with murder. it was murder” but also another Fisher, defendant, like the defendant had repeatedly that the Finally, Fisher, publicity similar to the previous conviction. against undisputed that the details of the evidence defend- it trial, specifically evidence including facts inadmissible ant— reported widely. concerning the O’Brien murder —were parallels also that of degree of saturation in this case in 1984 Although County’s population 405,000 Morris Fisher. — *106 80,000, County’s, the larger —is much than the Lauderdale in-county The circula- degree of saturation is almost identical. County— serving largest newspapers Morris tion of the three 130,000 newspaper’s the circu- approximately comparable to —is county. Morris to size of its lation in Fisher relative the stations, as by numerous radio and television County is serviced therefore, surprisingly, Not evi- County. is Lauderdale strong very in prospective jurors is dence of the infection of the of the cases; every prospective juror had heard in while both case, potential jurors had approximately Fisher 90% heard of this case. discounted, moreover, expressly jurors’ court
The Fisher acknowledged, impartiality. The court professions of their own proclaimed,” so but of seated fact, in twelve those that “[a]ll court, although professions it assumed that Fisher those faith, good did were in acceptance of them and the trial court’s 220-22. jurors. Id. at upon rely not these statements pretrial publicity saturation de- The court insisted “[t]he remains above, however, was and suggests that there scribed get or a Larry then ever Fisher could doubt that substantial Prejudice, in at 221-22. County.” Id. fair trial Lauderdale words, The court concluded: presumed. been other should have judge right We are convinced that trial Fisher’s to a respected scrupulously in all fair trial matters save one without which the rest are rendered one, meaningless. convincing The recited are our facts above to minds substantially bring that no could be in Lauderdale which could impaneled County degree right. Fisher’s trial that of his fairness which is Larry impartiality on a this record there was ... reasonable likelihood without Certainly that, change coverage of venue to a outside the the Meridian news county media, trial____ Fisher could not be afforded his fair [Id. assured constitutionally 223.] view, my indistinguishable compelling Fisher is both authority for reversal this case. The granting standards for change are type venue identical. The crime involved is proofs identical. The in both adduced cases are tenuous. The backgrounds type publici- of the defendants are similar. The identical, ty depth involved is and the saturation close so any unpersuasive. render distinction majority heavily relies much the passage too of time argue prejudice presumed. should not be Such an argument persuasively rejected by Mississippi Court Fisher, regardless which pointed out that of the interval of restraint, damage media already “the had been done.” Id. at addition, 219. In as the court Fisher noted even skillful voir may dire “Many be effective this area because: whose may substantially by pretrial publicity may views affected they incapable not know that are of sitting impartial as fair and jurors.” (citations Moreover, omitted). given Id. at 221 coverage fairly sensational nature of this and the brief interval trial, publicity between the majority’s finding intense Finally, that this interval was sufficient is not credible. *107 evidence that most members the jury of actual were aware of through the coverage subsequent defendant the media and the jurors indication that highly damaging were aware of the and concerning non-admissible evidence the O’Brien murder at the they time deliberating majority’s were the further undercuts prejudice conclusion that presumed. should not be is, short, majority To hold as today the does in to that hold This, wrongly opinion, Fisher was my decided. is not a changes recently salutary of that Writing the position. tenable adoption the “realistic likeli of Mississippi’s since have resulted standard, noted that since Johnson hood” Justice Robertson test, “there have adopted the realistic likelihood and Fisher changed venues murder trials capital been at least three verdicts____ addition,” he guilty in not resulted which added, on remand. happened to Fisher ... all know what “we capital County, had been convicted Fisher In Lauderdale County, to On retrial Rankin sentenced death. murder and State, 517 So. 2d guilty.” found not Lutes v. Fisher was J., (Robertson, dissenting). (Miss.1987) 550-51 approvingly by majority, cited Under the standards preju- publicity was such that the likelihood pretrial level “realistic,” say Prejudice to case least. dice this changed. should have been presumed. Venue should have been 2. refusal, a decision made upheld trial court’s
Having
standard,
prejudice, the
presume
to
initially
an erroneous
under
showing
question
is a
turns
of whether there
then
Court
publicity. Relying on
prejudice from the
“actual effect” of
Biegenwald, supra, 106 N.J.
parallels with State v.
assumed
dire,
ignoring
evidence
strength of the voir
that there was no such
contrary, the Court determines
to the
disagree.
Again, I
prejudicial effect.3
First,
case.
readily distinguishable from this
Biegenwald is
prior
no
case, only
jurors
of the fifteen
asserted
In this
five
pretrial
acknowledged
Biegenwald,
"there was extensive
3In
court
prosecutor "repeatedly
including
publicity,”
in which the
numerous articles
only for
guilt
killed
and also stated that defendant
defendant's
assumed
concluded, however, that the trial
pleasure.”
The Court
knowledge
impanelled jury
of the
two-thirds of the
indi-
they
publicity regarding
cated
had
that
encountered
the case.
case,
simply
It
Biegenwald,4
cannot
said
this
as it could in
significant portion
jury
that “a
array
relatively
of
pretrial
unexposed
publicity”
jurors
or that the impanelled
they
that
no publicity
“indicated
had encountered little or
regarding
supra,
the case.” Biegenwald,
The trial jurors several recalled the course of the evidence that implicated in the O’Brien murder.5 It is the defendant was that irony recognize of refusal to this “actual peculiar the court’s knowledge of murder jurors that those with the O’Brien effect” according Fascia— charge jurors,” of the to Juror —“most presumptively prejudiced would have been excluded as they if Record, Judge Daily that Stein *110 person.
The Court’s result is also
square
difficult to
its
with
decision
in
Bey (I), supra,
(I),
State v.
In Bey
N.J 45.
this Court
reversed
murder
defendant’s
conviction because the trial court
failed
jury
exposed
to ensure that
was not
to mid-trial
publicity respecting
alleged offenses,
defendant’s other
includ-
ing another murder. The Court held that the
test
such
was,
publicity
published
court
satisfied that
“[i]f
capacity
defendant,
information has the
to prejudice it
should determine if there is a
possibility
realistic
that such
may
information
one
have reached
or more of
jurors.”
Id.
at 86. If
possibility,
there is such a realistic
a voir dire must
be
any
conducted to ascertain
juror
exposed.
whether
has been
Id. at 86-87. The Court then held that the
publicity
midtrial
“[great] capacity
prejudice
had a
(id.
a defendant’s case”
at
90),
publicity
and that where the
had
a strong
such
potential for
prejudice, the
assumptions
usual
jurors following
about
their
oaths
adhering
judge’s
to the
instructions are not warrant-
ed.
sought
Id. at 81-83. The evil
(I),
to be
in Bey
redressed
jurors might
moreover—that
proceed
having
to deliberations
exposed
information,
prejudicial
been
assuring
without
court,
light
exposure,
that
of
of their
capacity
deliber-
impartially undeniably
ate
occurred in this case. The
—
remedy for this is thus
that there is no
determination
Court’s
(I).
holding in Bey
its
with
inconsistent
pretrial
non-capital
“where
cases—that
have ruled—in
We
nature, a
inflammatory in
highly prejudicial or
publicity is not
says
juror who
... she
accept the word of a
court should
trial
knowledge
facts of the case — ”
previous
of the
set aside
can
is, however,
(1979). This
Singletary,
v.
N.J.
See State
Singletary,
Moreover,
publicity
unlike
capital case.
a
inflammatory.
highly prejudicial and
case was
the instant
extensive
Where,
here,
publicity has been both
pretrial
as
information,
presumption
the normal
prejudicial
and laden with
impartiality should be believed
assert
their
jurors
that
who
situation,
has been
juror
who
apply;
such
should not
presumptively dis-
publicity should be
pretrial
to the
exposed
68-69;
Williams,
supra, 93 N.J.
at
qualified. See State
State,
the court should
supra.
It follows that
Fisher v.
disregard
they could
jurors
that
accepted “the word”
have
great.
publicity was too
publicity;
knowledge
preju-
jurors’
does discuss the
When the Court
First,
information,
the Court holds
itself.
it contradicts
dicial
improper
investigation
would
post-verdict
improper
allegation
injection
there is no
this case because
or
manifestation of racial
or a
into the deliberations
facts
Ante 288-90. The
then turns to
Court
bigotry.
religious
*111
assuming
concluding that
equivocates,
“[e]ven
the article
to be
appearing
the article
juror statements
quoted
the
...
concluding
Koeda-
that
...
is no basis for
there still
true ...
the
murder had entered
in the O’Brien
involvement
tich’s
minimum, the fact that
At a
deliberations.” Ante at
290-91.
knowledge that would
with
deliberations
jurors entered
several
this
indicates that
excusing
for cause
them
justified
have
jurors.
of some
in the deliberations
knowledge was a factor
post-verdict
jurors’
that the
willing to conclude
The Court is
accepts
impartiality.
It
erosion of
indicate an
comments do not
indict-
that the other
indicated
Ms. Zaccaro
at face value that
verdict,
Herzig
the
Ms.
until after
ment was not discussed
impartial, and
had been
Ms.
that
the deliberations
insisted
actually
surprised to
jurors
the
had
been
Fascia stated that
at
prior murder conviction. Ante
of the defendant’s
learn
did not
long
jurors
The
the
287-91.
Court assumes that so
as
information,
prejudicial
their
during deliberations
discuss
affect
knowledge of that information did not
delib-
independent
reject
assumption; who can believe that a
erations.
I
this
not color his or her
juror’s knowledge of such information will
Furthermore,
capital
in a
to the deliberations?
contributions
case,
life or death rests with each
the ultimate verdict of
mitigating
juror’s
aggravating
evaluation of
versus
individual
(1988).
(II),
majority’s
Bey
factors. State v.
N.J.
juror
assumption
weighing process
of the individual
allows
knowledge
prejudicial
corrupted
information to be
with
knowledge.
my judgment,
In
the undeniable
prejudicial
that
jurors
knowledge
with
of defend-
fact that some
deliberated
given
tenuous na-
charge particularly
other murder
ant’s
—
jury’s
proofs
more than sufficient to taint the
ture of the
—is
verdict.
Kociolek,
(1955),this Court reversed a
death sentence because some of trial, robbery the defendant had been indicted for that kill, jurors intent to and had informed the other assault with charges during deliberations. Justice Brennan wrote: jurors’ incident into the deliberations, It suffices that the intrusion of the Glenn illegal fraught standing and extraneous evidence with introduced alone, peril disregard, grievous an action the more because taken in defendant, [Id. judge. instructions of the trial defiance, 103.] actually explicit egregious case are as as the facts of The facts of this argued by press defendant: ... Kociolek. As “[h]ere murders, along murder linked the two with a third with which charged, conveyed theory the defendant was never responsible for all three.”6 Ms. Zaccaro’s person one on voir dire— argues jurors defendant the silence of the addition, 6In prejudicial information "de- their failure to recollect —on their exposure
363 it in the moreover, know that he did statement, that she “didn’t I realized he was halfway through the trial beginning but the connection O’Brien,” read to mean that can be linked to that factor in her determination the decisive O’Brien was with ”it; impermissible may signifi- information did have “he event, pre- any this is her deliberations. cantly influenced juror protestations of deference to cisely the context which instructions presumptions jurors that follow impartiality (I), Bey supra, v. N.J. longer obtain. See State should no integrity of safeguarding cases In line with our at 81-83. deliberations, the enhanced standard of review and with cases, inquiry should be wheth- capital the Court’s applicable part on the of several can show that awareness er the State flagrantly detrimental information jurors during trial of the had no charged with another murder had been that defendant affecting prejudicially their determination likelihood of realistic relatively guilt. entirely circumstantial of his Given the answer is clear: proofs, of the I believe that tenuous nature prejudice. likelihood” of a “realistic there was B. determinations, short, turn the enhanced stan-
The Court’s down, only upside capital cases not applicable in dard of review review the extent Court’s inside out. To but case, influence capital by fact that this is a influenced below; to the scrutiny of the record to have lessened seems by appropriate juror opportunity prived to have excused a defendant of the ’’ (1979); Thompson, challenge.’ (citing State v. 79 N.J. In re Kozlov prejudicial (App.Div.1976)). N.J.Super. Given the nature 280-82 peremptory information, argues, to assume that defendant it is reasonable qualified jurors challenge been had the would have been exercised J., (1988) (Handler, (II), agree. Bey 112 N.J. court. I See State many argument majority's were dissenting). there answer to this —that exercising justified would have been where defense counsel instances 7), (ante lends inadvertent challenge publicity at 277 n. but failed to based on an general fair trial before support my was denied a view: that defendant impartial jury. *113 holdings today apply extent that the Court’s to criminal defend- corrupted generally, holdings principle ants those have underlying jurisprudence safeguarding impartiality our juries: “[preservation jury’s independence from extrane- Corsaro, judicial supra, ous—even State v. —influences.” (and cited). Kozlov, supra, at 350 cases also In re N.J. See (courts expose at 239 must “seek out and outside factors N.J. impinging upon jury’s freedom of action and thus its impartiality integrity”); Duyne, and essential v. Van supra, 43 369. N.J. result, a this trial was allowed to occur in a venue that
As murders, by terrorized saturat- had been series of brutal by publicity concerning publicity ed those This linked crimes. the defendant to other crimes and related the circumstances of prior passage conviction for murder. The of time failed to his jury panel exposed, diminish the extent to which the the trial court’s conduct of the voir failed to discover the dire exposure. jurors true extent of that Several entered delibera- case, entirely tions in this in which the evidence was circum- tenuous, knowledge stantial and with that the defendant had murder, method, in in been accused of another similar close charge time and near in location to the them. The before Court facts; engages hypertechnical game it shell with these first presumption prejudice rules out the from the saturation publicity, concerning prejudice it then discounts evidence actual and, resulting publicity, finally, any from the it obviates further inquiry jury by eliminating presumed taint and actual into both legerdemain disguise prejudice. This cannot the Court’s refus- capital al to do what fairness in cases demands: to see the case (I), Bey supra as a whole.7 at 64 See State N.J. safeguard 7The Court’s failure to of this is the more impartiality rulings egregious are because several its evidentiary expressly dependent Thus, the Court the trial court's admission of impartiality. upholds including relating the defendant’s to the circumstances of testimony arrest — flashing lights being references to blue forced off the despite road — (Handler, J., concurring). Legal categories aside, and niceties it difficult, impossible if not to believe that defendant was not prejudiced, impartial and was tried jury, an much less that support the evidence does finding a “realistic likelihood of prejudice.” I only cases, can wonder what it will take future light holding, of this Court’s to hold that the likelihood of prejudice was “realistic.”
III. change venue, The erroneous refusal to resulting the trial *114 jury case, a that had compounded known about the facts of the impact by of the comments and prosecutor actions that are claimed to constitute reversible error. These claimed errors directly are attributable to the calculated misconduct of the prosecutor, misconduct recognized by judge that was the trial who tried unsuccessfully repeated to cure these instances of outrageous behavior. Because these curative instructions sufficient, light circumstances, could not be in of the I dissent majority’s from the treatment of these trial incidents. during Prosecutorial misconduct occurred the cross-examina- Baldwin, tion of step-brother, defendant’s David Paul who had school, high living been and was at home in November 1982. On direct he had testified that running defendant’s car was not inwell November playing that defendant was at home games Atari p.m. night question, at least until 9:00 on the closely fact that this information related to the circumstances of the O’Brien venue, agree murder. Ante at I 314-15. that in a neutral a venue unfamiliar cases, ruling proper. with the facts of these would have been Under the conducted, circumstances in which the trial was and in view of the fact that recollection, something trigger juror agree did in fact I cannot that this venue atmosphere fraught potential prejudice. was neutral. The was with the venue, Similarly, agree I in a that neutral it would have been "reasonable totality under the of the circumstances to commit the issue of Bos- [Diana] was, however, credibility jury." sard’s to the Ante at 317. This a which may herself, subject suggestible publicity have been as as the witness position judge predisposition may was thus a it well have shared. time, and that the sneakers at that had a beard that defendant gift and so could house were a Christmas from the seized 1982. The cross in November worn defendant not have been no questions for which there was replete with examination scope of the clearly beyond and which were factual basis direct examination. that the suggest, from the fact attempted to prosecutor
The Mall, that the defendant played games video step-brother playing of the murder video Mall the afternoon had been at the knowl- allegedly “with full suggestion was made games; this then, prosecutor edge completely that was untrue.” that retention map showing proximity of the pointing to a while Mendham, if ever worked Baldwin the defendant tanks to asked knowledge Mendham; despite the that he asked this date of in Mendham until after the had not worked defendant out, brought objec- over an prosecutor also the murder. The tion, in Florida. that defendant had lived prosecutor’s misconduct was no that the
There can be doubt acknowledged these areas egregious. The trial court itself sug- respect to the inquiry flagrantly improper; with were on the may been in the Mall gestion that defendant have murder, stated: “I think it’s the court afternoon avenue, day he’s in the Mall with that’s another dreadful *115 fact____” Nevertheless, the court denied defense no basis instead, and, jury instructed the motion for a mistrial counsel’s employ- questions relating to the defendant’s disregard Mendham, possible presence and to the defendant’s ment in 23rd.8 County Mall on November the Morris prejudice because of the these events was exacerbated 8The attributable to circumstantial nature of the State’s case. predominantly circumstantial arguably incriminating the defendant’s evidence also supports nature of the implicating wrongly a third excluded evidence contention that the trial court (ante majority rulings, at 297- in the murder. These discussed party 312), car Sheehan, owned a excluded evidence that a third Kevin sports party, (ostensibly connecting small car at a witness heard a with that sports testimony murder), gave inconsistent an that Sheehan and time of vicinity The Court now rules the curative instructions were Ramseur, State v. sufficient any to render error harmless. supra, N.J. 320-24, at prosecutor’s this Court held that a witness, during cross-examination of a which he made “several statements providing that can be construed as personal his opinion guilt,” improper. about defendant’s The Court reasoned that such as those improper ... are “[statements they jurors’ because divert attention from the facts of the Id. case before them.” Similarly, 322. in this case the prosecutor’s inquiries regarding “facts” that he knew no had basis, from which inferences could be drawn that would be untrue, wholly jurors’ diverted the attention from relevant facts of the case a manner necessarily prejudicial. that was in Ramseur
The Court found that the defendant was not deprived of a fair trial given because curative instructions were following prompt objections. concluded, however, It with the following admonition: night question, implicated account of his whereabouts on the that Sheehan attorney, privilege himself in front of his own that Sheehan would invoke the against questioned, unsupervised if self-incrimination that Amie Hoffman held parties, phone and that obscene calls were received in the cheerleader’s locker Despite room. the fact that some of this evidence could be excluded on hearsay grounds, might possible, and Evidence Rule 4 it have established a tenuous, albeit connection between Sheehan and the murder. It is not at all fully appreciated greater clear that the trial court latitude toward admissi case, bility appropriate precisely in this kind of for the reason that "the circumstantial, against completely evidence defendant was and because the punishment, proof might fixed the it was essential that no which conceiva bly finding guilt punishment imposed, affect the or innocence or Davis, 127, 129, properly People excluded if admissible." 29 Ill.2d 193N.E.2d (1963); LeClair, (Me.1981) 842-43 see also State v. 425 A.2d evidence, ("Especially upon where the state’s case is based circumstantial present court should allow ‘wide defendant latitude’ to all the evidence defense, unhampered by piecemeal rulings admissibility." relevant to his (Citation omitted.)) highly Given the uncertain and circumstantial nature defendant, against prosecutorial the state’s case and the blatant misconduct infra, willing discussed I believe the trial court should have been more to admit party guilt. this evidence of third *116 willing engage a conviction in in conduct to obtain a A proscribed prosecutor oath____ Because death harsh sanction, his is a uniquely case betrays capital prejudice resulting find from will more necessity readily prosecuto- the Court in a than in other criminal matters; misconduct case prosecutors
rial capital stringent obligations ethical fail to take their who seriously particularly strongly postponing, jeopardizing, the enforce- cases thus risk even capital [Id. of the law. ment 324.] it is my opinion, possible not conclude that defendant’s Ramseur preserved. fair trial does not address right to a was whether, capital prose- a given uniqueness proceeding, the of a outrageous, this may misconduct be so that Court cutor’s despite readily prejudice” the use of curative “more find should However, believe, implication, I the clear the procedures. admonition in Ramseur is prose- its recognition that Court’s obliged proper to conduct the trial a fair and manner. cutor Court, adhering nominally expressions while to the Ramseur, stringent apply fails to more standard of review. this insinuated,
Here, cross-examination, prosecutor the his the defendant familiar with of the murder was the area Mendham; this the knew to prosecutor he worked in because may misleading. suggested He that the defendant have also playing games the Mall afternoon of the been at video murder, possibility with encouraging the to consider a no scope questions only in fact. These were outside the basis examination, scope beyond also the factual of the of direct but entire case.
Moreover, of this prejudicial effect misconduct exac- during prosecutor’s summation at erbated misconduct During guilt phase of his at the the trial. summation end arrest, guilt phase, discussing prosecu- defendant’s there, “If he out of he have been tor stated: had walked would given a license to kill.” The trial court issued curative instruction, telling phrases “such as ‘a license to jurors your part language appropriate kill’ have no which is case____ instructing you in this at this consideration lam time during summation.” disregard comment the last last mistrial, grounds that Defense counsel for a on the moved *117 prosecutor insinuating was that the a defendant was serial killer, responsible killings for other County. Morris The trial agreed interpretation prosecutor’s court with that re- “It’s prosecutorial equivalent marks: the soiling of of the floor courtroom____ the It very suggestion, was close to a yet but suggestion you not a that going were to let a serial murderer go ... and I I frankly, think probably that’s what it was do____” court, however, intended to denied the motion: that, “I’m satisfied I gave because took a recess strong cautionary instruction any damage ... done by that statement ameliorated____” was that, firmly
I believe under this Court’s standard of review prosecutorial (id. for in a capital misconduct 324), case the improper questions highly during prosecutor’s cross-examina- tion, in suggested which he incriminating the existence of facts unsupported by evidence, murders, and his references to other insinuating that culpability, defendant had require added rever- appropriate sal. Under an enhanced of standard review there likelihood, particularly given realistic the weakness the case, prosecution’s prejudicial that these errors had a effect on indeed, jury’s deliberations; the more tenuous are the proofs, greater are a prosecutor both incentive for improper gain resort to tactics to a conviction and the likelihood of a prejudicial resulting However, effect from those tactics. if majority even apply were to conventional harmless error analysis, egregious this conduct should be reversible error given the implications weakness the State’s case and the its Ramseur. holding Finally, the evidence before us indi- something cates during triggered occurred the trial jurors’ information; prejudicial recollection of the State’s information, intentional allusion to that in the context of an entirely case, may circumstantial well have been decisive in prejudicing jury. Ramseur, opinion
This Court should follow its “more readily prejudice,” find and reverse the conviction.
IV. agree I death sentence. with reverses defendant’s The Court I it the reasons relied on the Court. think this result however, type prosecutorial important emphasize, that the phase during sentencing would that occurred misconduct a reversal. itself warrant during phase summa- penalty misconduct occurred
This
repeated
tion,
prosecutor made
references
when the
*118
infecting the
misconduct
victim.9 These remarks constituted
prosecutor stated
summation:
9The
on
trial, folks,
part of
is
think about Amie Hoffman because
This
when we
before,
judge
Kenny
sitting
don’t
Mr.
has his client
here and I
as the
said
hard,
(sic)
during
get
you
a
and
it's hard to
across
to
have client here
that’s
being
a trial
there once was a human
named Amie
the course of
that
to know to some
and we have
Hoffman who I think we've come
extent
Hoffman,
pictures
how
to
Amie
that were introduced. This is
I want
know
cheerleader,
life,
Amie
someone who had a
who had a future. That’s the
a
know____
I want
Hoffman that
to
the victim's
to decide whether
constitution.
in, making
sentenced Amie Hoffman
here
idea that she wouldn't make
she
on
retention tank
that
This whole
Let’s think a little bit about what
in her head when she was taken from the mall and taken
thinking
knife
ruling
was to
sure
on all
judge?
about was she
case
Well,
that this trial went
her
Randolph
protected
or not she
where
nose
There he
evidence,
[********]
to die.
and to her throat and she was
going
because
it
lives____
making
is
Amie Hoffman's
out of
rights
She
right
to
this
according
get
what
didn't
sure
girl
there because he is
of the defendant. The
out of there? Did
was
went
that admissible evidence
have
area?
to our due
she
due
through,
a
jury
thinking
process.
being raped.
of
process
what
she
about when
community
Where was
judge
up
was
have
one that
and our
to that
going
went
Was
was
any
you
to be some
easy.
stances, you
morning
You
you told
have
how
I share that burden
know,
many
and ask twelve
justice
say
us
could consider
it's not
at the
times
it’s over.
and no matter how
you
[********]
beginning
easy
When
people
think about
with
for me to have to come in here
the death
you
a
person
but there comes a
sentence someone to die. That’s not
depending
penalty
can I
many
like
sentence someone
the victim is
and I took that to mean that
times
on the facts and circum-
you
point
turn
killed,
in time when
those
there has
die,
Monday
pages
each
inappropriate
deliberations with
regarding
considerations
victim
prosecutor’s personal
and with the
beliefs about the case.
—
Booth v. Maryland,
-,
U.S.
107 S.Ct.
(1987),
Supreme
L.Ed.2d 440
disapproved,
Court
by a 5-to-4
vote,
the introduction
Impact
(VIS)
a Victim
Statement
during
penalty phase
capital
case.
Impact
The Victim
Statement describes “the effect of the crime on the victim and
family.”
his
in question
Statement
personal
described “the
characteristics
(they
the victims”
couple,”
were a “close
fifty-three years,”
“married for
“loving parents
grandpar-
ents”).
Id.
at-,
n.
S.Ct.
at
2531 n.
victim’s character is more than
hearing away
opportunity
sentencing jury
perception
someone of
from the
433,
also
*119
“principled way
We also note that it would be difficult —if not
Nor is there
64 L.Ed.2d
Skipper
[-]
many
that the victim was a
questionable
(1986) (Powell,
to rebut such evidence without
v. South
from the
any justification
cases in which it was not.”
to
398,
from its
distinguish
100
defendants____
Carolina,
character. This
S.Ct.
constitutionally required
J.
[cases]
concurring
1759
simply unappealing;
sterling
476 U.S.
[1767]
permitting
in which the death
member of the
type
(1980)
Godfrey Georgia,
judgment).
1,-,
shifting
prospect
of information does not
such a decision to turn on the
impossible
(opinion
task —
v.
it could well distract the
90 L.Ed.2d
the
of a “mini-trial” on the
community
determining
penalty
of
focus
—to
Stewart, J.).
provide
of
446 U.S.
was
rather than
sentencing
106 S.Ct.
provide
imposed,
whether
a fair
420,
See
presented
right
you,
strong,
if I
the
case to
a case
a case of cold-blooded-
ness, you
you
could sentence someone to die and
knew at that time like
standing
right
you
I’m
here
now that I have to ask
that.
proved
you
aggravating
I’ve
the
factors. You have all the reason in
asking you
you
the world to sentence him to death.
I’m
to do what
said
you
and, folks,
right
could to in the
set of circumstances
if this isn’t the
set,
right
I don’t know if there is one.
background
light
record of the
death
is
of the
the
appropriate
penalty
reject
the crime.
thus
the
accused and the
circumstances
of
We
particular
emotional
the victim’s
that
the
or absence of
distress of
contention
presence
sentencing
are
considera-
or the
characteristics,
proper
victim’s
family,
personal
-,
2534-35,
in a
at
Defendant also claims that “if this isn’t right death], which to vote I don't [circumstance one,” prosecutor if there know is committed misconduct his injecting personal beliefs into the deliberations. The rely prosecutor’s expertise induced on the or to “believe prosecutor do exaggerating fabricating. was either or We any juror expected prosecutor not think can be to believe the so say would do and thus we cannot the defendant was not prejudiced by prosecutor’s private as comments to his Farrell, (1982); belief.” State v. 61 N.J. Tucker Cir.1984). Zant, (11th F.2d review, Under the must enhanced standard of the Court prosecutorial conclude that this form of misconduct taints sentencing in all lead to the determinations. It must fairness penalty. reversal the death
V.
constitutionally
argues
penalty
Defendant
that the death
*120
prosecutors’
infirm
given
because the wide latitude
decisions
as to whether
charge
capital
defendant with
murder has
resulted in an unfettered discretion that leads to an arbitrary
capricious imposition
of the death penalty.
majority
proposes to follow this Court’s recent decision in State v.
Ramseur, supra, in which
side-stepped
issue,
the Court had
finding that there was not enough
presented
evidence
and that
analysis
such an
would
properly
part
be more
made as
of
proportionality review.
The lodestar
by
identified
modern federal death
penalty jurisprudence beginning with
Georgia,
Furman v.
(1972),
U.S.
92 S.Ct.
The United States post-Furman in its v. Georgia death-penalty jurisprudence, systems has endorsed guided sentencing Stewart, Powell, discretion. As Justices 153, 199, in Gregg Stevens stated Georgia, 428 U.S. 96 S. Ct. 2909, 2937, (1976)(Stewart, J., concurring): L.Ed.2d in order to minimize the risk that the death would be on a penalty imposed group selected of offenders, the decision to it had to capriciously impose guided sentencing standards so that would focus on the authority circumstances of the crime and the
particularized defendant. However, in Gregg v. Georgia, supra, rejected the Court possibility claim that the pervasive system, of discretion in the *121 374 charge through executive commu- original decision
from inevitably arbitrary. operation tation, the statute’s rendered discretionary of these existence reasoned The Court “[t]he determinative____ stages of these an At each stages is not may makes a decision which justice system in the criminal actor as a candidate for from consideration a defendant remove suggests that Nothing any of our cases penalty____ death mercy violates individual defendant to afford an the decision 2937, 199, 49 at 96 at L.Ed.2d Id. at S.Ct. the Constitution.” 889.10 1756, 279, 95 107 S.Ct. Kemp, U.S. McCleskey
In
rejected the conten-
again
(1987),
Supreme Court
2d 262
L.Ed.
rendered a death-
unguided prosecutorial discretion
tion that
the Court was
McCleskey,
penalty statute unconstitutional.
likelihood of
showing
data
that the
presented
extensive
with
Georgia
strongly
influenced
receiving
sentence
a death
Georgia Supreme
Noting that the
of the victim.
by the race
to other
McCleskey’s
proportionate
sentence
had found
Court
sentences,
is not constitu-
proportionality
review
death
(id.
adequate
at
statutory guidance is
where
tionally required
288),
rejected
1774,
at
the Court
-,
95 L.Ed.2d
at
S.Ct.
excessive. More-
that his sentence was
McClesky’s contention
was a
over,
prosecutorial discretion
opined that
the Court
system providing
part
judicial
necessary and entrenched
concluding:
leniency
that it should not be condemned
“[A]b-
punishment system
Georgia capital
showing that the
sent a
manner, McCleskey
arbitrary
capricious
operates in an
demonstrating that
prove a constitutional violation
cannot
did not receive
may
similarly situated
other defendants who
be
the statistical
The Court dismissed
penalty.”
the death
Id.
White,
argument
concurring,
prosecutorial discretion
10Justice
addressed
charged escape
capital
separately
offense is
cases in which no
"because the
determining
by it in
Georgia Supreme
considered
Court and are not
view of the
disproportionate.”
particular
Id. 428 U.S. at
whether a
sentence is ...
at
S.Ct. at
49 L.Ed.2d
903.
discrepancies
sentencing
as “an
evidence
race-induced
justice system;”
disparities,
part of our criminal
such
inevitable
“unexplained,” are not to be assumed to
“invidious.”
when
at-,
The course of federal should not distract state issue, independent courts from an an evalua evaluation of tion that majority recognizes required. is Ante at 252-53. Attorney Watson, 648, 666-68, District v. 381 Mass. 411 prose (1980), availability unguided 1274, 1284-85 N.E.2d Massachu Supreme Court of led the Judicial cutorial discretion capital setts to declare the Massachusetts statute unconstitu tional under the Massachusetts constitution: It be c. 488 meet the Federal constitutional if would may requirements, but here we the statute under ... the State Constitution. We
tested, appraise imposing Furman that untrammeled discretion in the death accept principle we find under the State Constitution the intolerable; penalty unacceptable post-Furman guidelines and standards of the cases that may premise statutory curative____ Furman cases do not address be subsequent entirely justice other in the criminal exercised at points pro discretionary powers cess____ Furman stands indifferent to the exercise of the "un prosecutor’s valid in the context of his trammeled discretion.” For reasons which may forgo but which do not assist ... duties, evenhandedness, prosecutor may degree charge. first murder indictment and seek an indictment for ... a lesser bargaining, degree in a first murder Also, case, plea perhaps pursuant 376 nol of the indictment in his uncurbed discretion prosse part
prosecutor may
charges
degree.
in the
The Illinois court’s State’s Ramseur, I statute. As intimated dissent State v. murder, capital of the definition of and the absence of breadth aggravat- meaningful narrowing through the consideration of factors, ing jury’s renders the discretion standardless. prosecutors of standards for in such a scheme redou- absence *123 infirmity unguided discretion the flaws that bles the because plague jury’s function the statute —the failure of the aggravating guilt-phase penalty-phase definition and the replicated guide factors to discretion—are in the absence of (Handler, J., prosecutorial standards. 106 at 405-06 dis- N.J. Moreover, senting). guidance respect the lack of with to the charge capital prosecutor’s decision to a defendant with murder danger penalty unacceptably increases the that the death will narrowing imposed arbitrarily because the needed function be provided stage prosecution. at this crucial initial of a is not surprisingly, given decision-making the latitude for al- Not statute, emerging. by arbitrary results are The lowed by amending later overturned a referendum the State 11This decision was Constitution. compiled Defender has study Public an instructive that indi- unguided prosecutorial cates that discretion leads to or has disparity disproportionate imposition contributed to of the Bienen, Weiner, Denno, penalty. Allison, death L. N. D. P. D. Mills, Reimposition Capital Jersey: “The Punishment in New (1988). Report, Interim Parts I II” The Court acknowl- edges study give the relevance of this but then fails to any implications. I to its conclusions or Ante 253-58. credit study do not insist that the Public Defender’s accepted must be aspects acknowledge in all its and would that it is flawed in respects, chiefly some its use of defense counsel to assess the However, strength of the cases study studied. lends cre- equally dence to Public Defender’s claims that serious prosecuted crimes are equal degrees by not varying counties, indicating differing county policies budgets, political cases, not to pressure given mention intense may disparities. may well contribute to these It be that the data are strongly indicative of different treatment related to the races of the victim and/or defendant but the statistics tentative- ly may present. question show racial influence The Court, believe, this I disparate is whether these results are arbitrary consequences indicative of the prosecu- of unfettered Minimally, give pause; torial discretion. it must the Court realistically, it calls for further study imposition and for the mandatory system guide prosecutors’ judgments as to charge capital whether to murder. majority importance discrepancies dismisses the
suggested by arguing study the Public Defender’s that the data any charging capital are not indicative of racial bias murder. However, majority open question stating leaves this that it arbitrary. would find racial I intolerably bias to be am troubled majority’s Study prove insistence that the must bias I Study’s preliminary because believe that evidence is *124 sufficiently strong showing by to the warrant a State that no charging bias in exists. loss, however, explain
I am at a majority how the can possibly county by county discrepancies conclude that are not Ante at arbitrary imposition indicative of of the penalty. death recognizes supporting the majority The the evidence 255-57. disparity conclusively a then defendant’s claim of such but evidence, stating: dismisses this among That there are differences the counties the likelihood that a will the coincidence that has more often prosecutor pursue prosecutor —or standing does not, demonstrate that pursued capital prosecution alone, —a being death there are a penalty arbitrarily imposed. Surely, myriad reasons a handles different cases why such as the prosecutor differently, willingness guilty, strength of a defendant of the State’s plead case, against defendant’s in the State’s case cooperation co-defendant, relative weight aggravating mitigating of the and and factors, statutory availability relative and the resources of the credibility persuasiveness witnesses, office, to list a few. [Ibid. ] county prosecutor’s only holding The majority’s county by county discrepancies significance are of no constitutional stands in contradiction to Ramseur which the Court held that the universe for assur- ing statewide, proportionality stating: We believe that statewide is the more uniformity measure, appropriate
therefore anticipate will be made throughout comparisons to “similar” cases N.J. the State. [106 329.] uniformity The standard of being emptied statewide is now by content majority’s county county determination that discrepancies possible do not indicate the arbitrary capri- imposition cious penalty. of the death I do not see how this can with Ramseur. squared be county by county discrepancies, contrary majori- to the view,
ty’s are indicative that defendants in different areas of likely being state are treated differently. To avoid this potential arbitrary imposition for the penalty, death majority require should development of a statewide stan- deciding charge dard for capital whether to murder. The suggestion majority’s strongly that it guide- recommends that developed General, lines Attorney the State county prose- cutors, not, light and the Public Defender does of its reluc- any tance to find present- constitutional difficulties in the data *125 to ensure that such standards will be by Study, the suffice ed lessen the likelihood developed. Such standards will promptly and, majority penalty prosecutions, as the arbitrary death eventual notes, uniformity and assist the Court’s promote require review. Ante at 258-59. I would proportionality standards. development of these prosecu- such a limit on majority require fails to Because the penalty statute itself the death torial discretion and because adequately does not death-eligible persons, narrow the class of I capital murder statute is hold the view that the continue to genu- constitutionally invalid because it does not overcome N.J application. 106 at arbitrary capricious ine risk of data are that such suggested indications 405-06. The occurring accordingly strongly I arbitrary may be results implications disagree majority’s reluctance to face with the given discretion to adequately guide to of this data and county prosecutors.
VI. remains, raised nor addressed A an issue neither final issue this Court’s atten- that warrants party, but one by either See review. appellate standard under an enhanced tion any if one that has decided 344-45. This Court ante exists, is en- juror that mitigating factor that a juror believes See weighing process. through to carry his belief titled reasoning (II), behind supra, N.J. 123. Bey mitigating factor that a juror if a believes this rule is that factor(s) aggravating exists, that the might he well determine factor; since a non-unanimous outweigh mitigating do not life) (of penalty-phase in a years is a verdict verdict mitigating decides that a any juror individual who proceeding, doubt outweighed beyond a reasonable factor exists and is effect, has, spared a defendant’s aggravating factors by the hand, juror believes if that individual the other life. On find, if he or she would mitigating factor exists and them, weighed mitigating that the outweighed, factor was not perform process but weighing is unable because unanimi- factors, ty required mitigating juror to find is disenfran- chised.
It is clear in this case that the trial court erred in requiring *126 unanimity in mitigating order to find that a factor exists. The Court, therefore, correctly reverses defendant’s death sentence. however, submit, I that the error runs much Ante at 326-27. deeper, dispositive principle and that the of State v. Ramseur requires that this possible defendant not face a death sentence disagree Court, on retrial. I therefore with the which rules may again that defendant exposed be to the death sentence. Ante at 327. court, noted,
The trial as jury instructed the that their findings had to be unanimous. This instruction was reflected in following interrogatory special on the verdict form: “Do you unanimously agree following that the exists as a mitigating factor?” In attempting clarify jury, during for the delibera- tions, “no, whether a “no” answer meant we are not unani- ” mous” ‘no,’ or “we are in saying unanimous the court contra- dicted itself. The court told “Anything Juror Number 5: that decide, you you have to have to decide unanimous vote. If you vote, can’t reach you a unanimous have not reached a decision on the issue.” The implied court thus that all had to agree one way or another. When Juror Number 15 voiced standard, confusion over that aloud, the court question read the ‘no,’ then said: “If the answer you is it means that can’t reach a unanimous vote Okay?” that it exists. The court thus jury instructed the first they that had to reach a unanimous say “no,” verdict to and then they that say they had to “no” if could not reach a unanimous verdict. addition,
In it was evident jurors that there were who thought mitigating that jury factor existed. When the returned, the “Everybody agrees court stated: hopeless there’s question, is that cor- [mitigating deadlock on that last factor] Yes.” rect? THE FOREMAN: Ramseur, supra, 312-15, N.J. this at Court charges, supplemental jury which held that because coercive life, could have saved the defendant’s the deadlock that broke possible face a death sentence the defendant would not resentencing. stated: Court given has coercive hold where a trial court in case capital erroneously
We that jury agree, to a that has its inability instructions ... expressed supplemental law the final non-unanimous verdict must afford defendant benefit of might Having been have been returned absent the coercion. erroneously jury resulting in to a verdict imprisonment of a substantial deprived opportunity subject to another sentenc- rather than defendant not be death, may capital ing proceeding. recognize said error in a case in some We reversible any capital may to a verdict sense to have a defendant of the opportunity deprived resulting and that nevertheless usual proper remedy imprisonment, sentencing such is of the death sentence and retrial of for errors reversal again proceeding But a which the face the death defendant may penalty____ critically prejudicial other errors that by Czachor error from different jury has an or definition it occurs after the demonstrated clearly inability bring in an uncoerced unanimous verdict death unwillingness charge as a conse- sentence. has, The erroneous coercive simply possible *127 disagreement ending save its sole the that would but as quence purpose, jury’s disagreement has reached the at point life. Even if the not defendant’s be those deliberations must take which deliberations would further improper, such coercion the occurs, defendant an free of coercion. place atmosphere If a but substantial has lost not theoretical merely possibility irrevocably resulting jury the have reached a verdict error, absent the would that, likelihood death, added).] (emphasis than rather at 313-14 [/d. imprisonment pains emphasize the nature of Ramseur took to The Court thus element, the supplemental charge; the critical coercive the sheet, verdict utter confusion 12When court came to the in the the question reigned: following find that exists as THE Do the COURT: Okay. you unanimously mitigating to the defendant’s charac- factor: factor which is relevant Any of murder? or or to circumstances of the offense ter record the THE FOREMAN: No. no? THE The answer is COURT: THE FOREMAN: No. unanimous, is that correct? that, course, And is is THE COURT: that — Honor. Yes, THE FOREMAN: your held, “by that definition it jury Court occurs after the has clearly inability unwillingness bring an or demonstrated to an unanimous verdict for the death uncoerced sentence.” Id. at 313. then, primary supplemental charge, of the vice coercive compels jurors mitigating
is that it who believe that a factor is outweighed beyond by aggravating a reasonable doubt abandoning position unanimity. factors into for the sake of precisely the charge That was effect the trial court’s in this case; any juror mitigating who believed that the factor existed abandoning coerced prior weighing was into that belief to the process by requirement unanimity. agreed, the Because all moreover, existed, aggravating inability that two factors the mitigating unanimously find a factor meant that the verdict of Thus, any jurors death was automatic. who believed the mitigating literally voting factor existed were coerced into death; indeed, powerful the coercion was so that their belief way mitigating weight one or another about the factor’s was Ramseur, contrast, registered. by not even allowed to least, jurors weighing process, reached before the coercion jurors forced to abandon their beliefs. Ramseur, moreover,
As in jury in this case demonstrated inability unwillingness an bring or an uncoerced unani mous verdict. There was jury obvious resistance existed; abandoning position mitigating that the factor jury sought unanimity, clarification of need for and ended mitigating deliberations deadlocked on the existence This, coupled mitigating factor. facts that no with the evidence presented, and that on the exist also deadlocked only ence of aggravating factors that called for substantive that, judgment, raises “a substantial likelihood absent the er *128 ror, imprisonment would have reached a verdict of remedy rather than death.” 106 must at 314. Since N.J. “[t]he (id. wrong” 313), commensurate with the and since the wrong indistinguishable principle wrong here is in from the in same; Ramseur, should remedy should be the defendant sentence. face another death not holding finally, that the Ramseur Court buttressed note, its I errors, e.g., other charge by reference to on the coercive Id. responsibility. at 315. properly apprised of its jury was not case, a trial that jurors coercion of the culminated In this prosecutorial misconduct and infection featured blatant infirmities, among and in prejudicial publicity, other jury with in defendant’s de- erroneously acquiesced which the court Under any mitigating evidence whatsoever. present not to sire capital in appellate applicable review enhanced standard view, not cases, strengthen, my the case for only these facts sentence. allowing defendant to face another death this VII. conclusion, state, unconstitutionality of the
I by is reconfirmed this penalty murder-death statute capital not, inexperience that has suggest, simply judicial I case. It is statute, incongruous and inconsistent results. produced standards, insusceptible lacking and understandable cohesive guided management. The absence of impartial of fair and framework, coupled statutory in this prosecutorial discretion determining proportionality no current means of with close. sentences, deep too inflicts constitutional wounds as as the failure constitutional infirmities well These chronic explain, in of review develop apply an enhanced standard arising capital measure, that are our large the anomalies jurisprudence. murder Hoffman; if Amie may well have murdered
James Koedatich provided by law. The so, punished severely as he should be had, however, jury before a prove did not that he prejudicial publicity. The State’s weak by highly was untainted which, publicity, deluge of reality this case was buttressed finding jurors to extent must have conditioned to some guilt without prove defendant’s guilt. Finally, the State did *129 jury’s flagrantly influence the deliberations attempting ways. improper deriving requires these errors that the prejudice from must reversed. and sentence
conviction joins in II of this dissent. Justice O’HERN Part conviction, reverse, sentence and For affirmance WILENTZ, POLLOCK, Justice and Justices remand —Chief and STEIN—4. GARIBALDI CLIFFORD, HANDLER and For reversal—Justices O’HERN—3. PLAINTIFF-RESPONDENT, JERSEY, v. JAMES
STATE OF NEW ZOLA, DEFENDANT-APPELLANT. E. August Argued February 1988. 1988 Decided As Amended October 1988. on March in the notes 5An article record,” juror any knew of arrest "excluded who Koedatich’s court] trial [the approach prevent some did not but then relates that "Stein’s conservative began. Daily linking jurors once The to both murders the trial from Koedatich jurors of the who convicted Koedatich Record has learned that some of the charged killing This infor- murder knew also with O’Brien. Hoffman he was brought jurors because it before the Hoffman mation was not allowed to be got jurors prejudice a few once the trial Koedatich’s case. But said could charged killing they underway women." realized was with both Koedatich stated, beginning Specifically, he but Zaccaro "I didn't know did it in the Ms. halfway through to Ms. Zaccaro the trial he was linked O'Brien.” I realized verdict was O’Brien was not discussed until after the also said that the murder thought jurors that most of the were aware Leslie Fascia "said she returned. charged jurors were sur- O’Brien murder. She said Koedatich was with the during phase prised penalty was convicted learn ... Koedatich to rejected majority’s emphasis an on the fact that we in Florida.” murder jurors requesting interlocutory appeal by all an examination of the defendant rejection by the influenced article is Our based on this not determinative. appeal process; purport incomplete it did not nature of the uncertain materiality report probative taint. as evidence rule on the dire, knowledge had recalled such voir notwithstanding any they impartiality might affirmations of have willing been disregard make. This Court’s evidence of “actual effect” in assessing the prejudice” “realistic likelihood of is difficult to reliance, moreover, understand. Its “strength” on the of a voir obviously identify jurors dire that failed even to those who highly prejudicial were aware information —let alone to as- ability impartial sess their frankly inexplicable. The —is Court, of independently assessing gravity instead of error (see, e.g., Duyne, supra), purports State v. Van to defer to the court; disregards trial then it the trial court’s own estimation knowledge this would presumptively disqualify a venire-