*1 arbitrary, discriminatory, application and unconstitutional penalty. death
Therefore, I respectfully dissent. POLLOCK, For reversal and remandment —Justices GARIBALDI, STEIN and COLEMAN —4. part, part concurrence
For dissent in HANDLER —Justices and O’HERN —2.
Argued April August 1996 Decided 1996.
BIO *19 Herman, Deputies and Susan Assistant Daniel V. Gautieri (Susan Defender, L. argued appellant the cause for Reis- Public ner, Defender, attorney). Public General, Heinzel, Attorney argued the cause Deputy H.
Paul (Deborah Poritz, Attorney New respondent T. General of for Jersey, attorney). opinion of the Court was delivered
GARIBALDI, J. defendant, Loftin, the murder of Donald A convicted separately penalty-phase hearing, a Gary K. At the Marsh. verdict, and the trial death-penalty returned a empanelled directly appeals to death. Defendant court sentenced defendant 2:2-l(a)(3). affirm right. Rule We to this Court as See and his sentence of death. conviction for murder defendant’s I Phase A. Guilt
1. The crime 5, 1992, Gary working midnight to six- May Marsh was On thirty an Exxon service station located on Alternate a.m. shift at Lawreneeville, Jersey. key New Marsh had a Route One away gas pumps, from the office that was located behind a.m., stopped highway. approximately E. Thomas Citron At 4:10 gas fifty-dollar gas paid at the He for his with a bill. station. relieve at 6:30 a.m. David Paddock was scheduled to Marsh a.m., Arriving early, approximately parked 6:10 he waited in his pull up pumps, a customer to the wait truck. Paddock observed service, ultimately truck leave. Paddock then left his without to find Marsh. office, large plant-
Approaching the station Paddock saw three *20 ers, machine, slip receipts, pile pink a a of and a half-eaten cola ground just orange. orange was found on the outside passenger door of Marsh’s car. Paddock further observed the unlocked, keys pulled in the door. The door was but closed. office office, puddle in lay inside the his head of blood. Marsh and called the Lawreneeville Paddock closed down the station had occurred between Citron’s visit at 4:10 Police. The murder finding at 6:10 a.m. a.m. and Paddock Marsh lay Marsh on his back with his head located three feet from doorway in the northeast corner of the front that was located scene, police Maple, one of the first officers on the office. Officer large the floor next to that a amount of blood was on observed (back) pointed feet were toward the southwest Marsh’s head. His eyes at his side and his corner of the office. Marsh’s arms were alive, right eye Although were shut. His was black and blue. still struggling Marsh was unconscious and for breath. clothing appear
Marsh’s did not to have been disturbed. His possession of pockets were not turned out and he still was some items, bills, change, personal including three dollar some lottery spent casing tickets. A brass shell was found on the office floor, Further, four to Marsh’s left ear. the cash six inches from empty one the counters and there was also some drawer sat on change on the examination of the station office loose floor. Closer Although finger- pieces revealed several crucial of evidence. no station, prints anywhere in of defendant were found or around purpose. kill served a similar The bullet the bullet used to Marsh hung pegboard killed Marsh found behind a that on the A removed back wall of the office. few of Marsh’s hairs were testing the area of the hole. Later ballistics traced from bullet Bryco pistol, purchased by that bullet to a .380 caliber Model 48 Levittown, Supplies Pennsylvania, D defendant from & S Gun by subsequently police discovered defendant’s car under the dashboard. Peterson, owner,
Additionally, Mr. the station determined approximately ninety evening’s had been taken from that dollars Moreover, gas although reported purchasing Mr. Citron revenue. a.m., fifty-dollar from Marsh with a bill around 4:00 there was no fifty-dollar proceeds person. or on Defendant bill Marsh’s fifty-dollar possession was in of a bill at the time of his arrest. However, belong fingerprints the two detected on that bill did not Marsh, Loftin, or Citron. of a
Further examination of the office revealed the absence particularly struggle, significant fact the office is small because office, taking account of the furniture in the and narrow. Without inches thirteen the dimensions of the room are nine feet seven did, however, feet, consume five inches. The office furniture testified, Maple “Nothing space. floor As Officer considerable appeared or moved or out appeared to be touched or disturbed *21 mean, was, basically appeared ... me place. I it was the office to any struggle anybody going signs no or untouched. There was gone through anything there.” through or regained approximately and died Marsh never consciousness bleeding in the after he was discovered nine and one half hours County’s Medical day, next Mercer Chief Exxon station. The Ahmad, Examiner, autopsy conclud- Dr. Raafat conducted an gunshot to the head and ed that the cause of death was a wound entry death homicide. The wound was that the manner of top temporal region, grazing with the bullet located the left skull, entry. penetrated ear on The bullet Marsh’s of the left brain, hemispheres exited passed directly through both of his area, right temporoparietal slightly opposite side at the on slight opined bullet’s right temple. Dr. Ahmad that the above possibly tilting upward path through the skull was caused fracturing lines to run impact. head on The bullet caused The doctor top from the to the base of the skull on both sides. right eye and blue as a result of testified that Marsh’s was black seeping causing fractures inside the skull and blood bullet eye into the area. cuts, injuries,
Dr. Ahmad observed that Marsh had no external or or There were no “defense wounds” on the hands bruises. struggle. arms that would have been indicative of a 2. The arrest wallet, police
Because the had been unable to find Marsh’s companies card Detective Burns notified each of Marsh’s credit robbery place. requested taken Burns that a murder and had anyone if at- Police should be contacted Lawreneeville tempted to use the cards. murder, days May on
Defendant was arrested four after the purchase family computer from a attempted when he belonging Pennsylvania charge card store with a Sears Sears agreed selecting computer system, defendant Marsh. After help purchase. open Plus” account in order to finance the a “Sears *22 Defendant handed the representative, Cassidy, Sears sales Mr. charge belonging the driver’s license and Sears card to Marsh. Cassidy Mr. spoke called the central credit office and with John Cassidy provided general Metzler. some information to Metzler defendant, spoke directly and then Metzler to who identified Gary provided himself as Marsh and Metzler with relevant factual information, name, including Gary security Marsh’s social card number, address, age, employed by and the fact that he was Exxon. message
Metzler discovered the from the Lawrenceville Police thereupon as soon as he Marsh’s accessed account. Metzler Cassidy potential instructed to stall defendant because this was a case of credit fraud. Mr. Metzler then called the Lawrenceville Police, Police and thereafter as store Middletown as well security. security videotaped leading up Store the events to and including receiving property, the arrest of defendant for stolen card, by deception. fraudulent use of a credit and theft The videotape played guilt of the arrest to was at the penalty phases of the trial. Sears,
A person search of defendant’s was conducted at where- upon police recovered his bi-fold wallet from his left breast Marsh, pocket. belong The wallet did not but when Officer plastic Burnett searched the insert of the at the wallet Middletown station, Township police he found four of Marsh’s cards: two cards, card, security a credit social and a health insurance card. in Also found the wallet were both Mr. Loftin’s and Mr. Marsh’s licenses; plan in driver’s some identification and health cards Mr. name; belonging including Loftin’s various cards to Mr. Marsh cards, card, card; registration gun a credit bank and a vehicle permit Washington; in Mr. name from the Loftin’s Levittown, receipt Supplies Pennsylvania] D [from & S Gun purchase Bryeo pistol of a and the [.380 caliber Model 48 fifty- receipt indicating paid gun,] that Loftin in full for the and a belonged dollar bill. The items that and defendant were Marsh together, eye mixed and the date and color on Marsh’s driver’s appear- had altered so as to conform defendant’s license been indicated that Marsh had None the items the wallet ance. worked Exxon. offense, defendant, years twenty-six
At the time of the who was children, old, Dorothy young and two residing with his wife Bristol, Pennsylvania. police and executed a search obtained *23 they a home At his home found warrant of defendant’s and car. weapon, a in a closet contained rounds for .380 caliber box that (of fifty) twenty-six original its and a smaller box that contained making own items for one’s ammunition were bullets. Various confiscated, powder, reloading including also found and smokeless measurer, dies, scale, press. reloading powder a and a turret The that was from Loftin’s home was ammunition confiscated application An form for a compatible weapon. with the murder gun living police club was from the room closet. The also seized clothing of from home. confiscated several articles defendant’s any gunshot blood detected on of Loftin’s Neither nor residue was possessions. car, police weapon, the murder a .380 defendant’s found gun required half equipped safety with a ten and one
caliber gun. pounds weight gun in order to fire the The found matching bore a serial the serial number defendant’s car number receipt gun purchase on a for a recent found defendant’s wallet. Deady, Trooper Stephen ballistics and firearms State State’s spent along-side retrieved Marsh’s expert, testified that the shell head, Exxon and bullet retrieved from the office wall behind discharged defen- pegboard, had both been fired and from gun. weapon on the dant’s The was hidden under dashboard magazines two for a driver’s side. Also in defendant’s car were weapon. magazine empty was and one was semi-automatic One partially There was “side-kick” holster loaded. also a shoulder under driver’s seat. police additionally plastic found mask in car.
The defendant’s However, evidence, was not as and no mask confiscated car mentioned member the team searched defendant’s Rather, finding only during penalty-phase the mask. it was cross-examination of Detective Burns that for the first time the acknowledged the mask’s existence. 11, 1992, September
On
indicted on four
counts:
purposefully
knowingly murdering Gary
or
K. Marsh
his own
conduct,
2C:11-3a(1)
(2) (count I);
to N.J.S.A.
contrary
felony
2C:11-3a(3) (count
murder,
II);
to N.J.S.A.
contrary
first-degree
(count III);
robbery, contrary to N.J.S.A. 2C:15-1
and second-
degree possession
handgun
purpose
of a
with a
to use it unlawful
(count IV).
to N.J.S.A. 2C:39-4a
ly, contrary
pleaded
Defendant
guilty.
Subsequently,
prove
the State served a notice of its intent to
2C:11-3c(4)(a)(c(4)(a))(convic
factors: N.J.S.A
aggravating
three
2C:11-3c(4)(f)(c(4)(f))(murder
murder);
N.J.S.A.
tion for another
offense);
N.J.S.A.
escape apprehension
for another
2C:11-
(murder
3c(4)(g) (c(4)(g))
during the course of a rob
committed
c(4)(a)
bery).
prior-murder aggravating
factor is based on an
28, 1992,
County
knowing
Atlantic
conviction for the March
or
purposeful
sixty-nine year
Sophia
murder
old
Fetter. Defen
*24
22,
September
of the
on
1993.
dant was convicted
Fetter murder
Division. State v.
Appellate
His conviction was affirmed
the
Loftin,
N.J.Super.
(App.Div.1996).
On to kill intent was that defendant’s concluded Specifically, bodily Marsh, causing him serious victim, opposed to Gary as Gary had murdered that defendant injury. The also found by his own conduct. Marsh Penalty
B. Phase trial, of filed a Notice phase penalty Prior to the statutory following four included Mitigating Factors which mitigating factors: or emotional distur- mental the influence extreme
1. Defendant was under N.J.S.A 20:11- a defense to prosecution, insufficient to constitute bance 3c(5)(a); 2C:11-3c(5)(c); age, N.J.S.A. murder, time of the 2. Defendant’s wrongfulness conduct or to of his Defendant’s appreciate 3. capacity significantly law was impaired his conduct to the conform requirements degree but not to a sufficient defect, disease or as the result of mental 2C:11-3e(5)(d); N.J.S.A. a defense to constitute prosecution, significant 2C:11- criminal N.J.S.A. activity, no history prior 4. Defendant had 3c(5)(f). pursuant factors twenty-nine specific proposed Defendant also 2C:11-3c(5)(h): factor, statutory mitigating N.J.S.A. the catch-all age; at an the loss of his father early was traumatized by 5. Defendant in the set that resulted a fire he accidentally was traumatized by 6. Defendant home; loss of the family growing when up; was emotionally impoverished 7. Defendant his sense where he could verbalize of an environment Defendant was deprived 8. loss; Defendant was raised poverty; 9. growing male role model while up; of a 10. Defendant deprived positive *25 loving son; and was a considerate 11. Defendant siblings direction; sense of his with a 12. Defendant positive provided religious strong standards; and and evidenced spiritual 13. Defendant developed 14. Defendant assumed the of the man in the before he was responsibility family to do so; emotionally financially prepared got estranged from his after he 15. Defendant was forced become family choosing align himself with his wife at the of his married, family expense origin; was traumatized the loss of his first but did not have the son, 16. Defendant him of his mother to deal with his support help pain; for his wife and children; 17. Defendant maintained provided employment Defendant served in the United States 18. Navy; College; Bucks 19. Defendant attended County Community with his and children; 20. Defendant shared a wife relationship positive 21. Defendant had been a model prisoner; for the first 26 22. Defendant had led a crime-free and existence productive years life; of his generous himself; to those less fortunate than 23. Defendant had been of mental and emotional at the 24. Defendant was under the influence pressure time crime was committed; suffering time the crime 25. Defendant was from mental impaired capacity was committed; loving 26. Defendant was a father;
27. Defendant’s would be a to his execution hardship family; daughter, to his 5 old 28. Defendant’s execution would be year hardship Danielle; to his 3 old son, 29. Defendant’s execution would be hardship year Jay; of his 30. Defendant had the love and family; support remorse; 81. Defendant had sincere and heartfelt guilty exchange sentence; for a life 32. Defendant offered the State plead mitigating at the trial. 33. other evidence Any presented penalty phase of the Numerous motions were made before the 13, 1994, began September 1994. trial on November On granted expand the allotted trial court defendant’s motion to chal- peremptory challenges, providing him five additional with The trial court denied defen- lenges and the State with three. die request the “likelihood that defendant would dant’s to establish the catch-all prison” mitigating an additional factor under as mitigating granted the motion to strike factor. The court State’s However, thirty twenty-seven through as irrelevant. factors thirty. ruling mitigating on factor court later reversed its *26 de- whether defendant separate penalty-phase A determined offered the State were: aggravating factors served to die. (2) (1) murder, a during the course of prior a murder evidence of (3) apprehension. robbery, and murder to avoid many called of the same penalty phase, the State At the guilt phase including Gunnar appeared at the witnesses Ahmad, Paddock, father), Peter- David Edward (Gary’s Dr. Marsh Burnett, Mosner, Burns, son, Troop- Detective Officer Officer in a manner consistent with the Deady, all of whom testified er added, phase. Marsh guilt at Gunner evidence adduced defendant, however, Gary know nor did he own or did not indicated that a mask had carry handgun. Detective Burns a Martinson, the in car. Dr. Charles State’s been found defendant’s wearing indicated that he had been expert, testified that defendant robbery. guilt phase, at the the Sears during mask As jury. videotape to the was shown surveillance factor, aggravating parties respect prior murder to the With the March had convicted of stipulated that defendant been Fetter, by single gunshot wound to the Sophia a 1992 murder stranger sixty-nine years old and a total Fetter was head. Ms. that defendant Although the court instructed defendant. County the Atlantic sen- thirty years parole without on received tence, jury, to the in permitted defense not to submit imposed punishment, that a second life sentence as mitigation of likely in defendant’s of the Marsh murder would result result dying prison. in Jurman, attorney mitigation, his defendant called Charles trial. testified about defendant’s
the Fetter murder Jurman County Prosecutor’s Office tenta- willingness accept the Mercer exchange for defen- plea offer of consecutive life sentences tive guilty Fetter and Marsh murders. pleading dant to both the Jurman, however, never formal- acknowledged that the State had prior that defendant had no that offer. Jurman also testified ized murder, record, County Atlantic criminal aside from the murder, County credit-card offenses and the related Mercer user, Pennsylvania. drug He also stated that defendant was alcoholic, objection, compulsive gambler. or Over the defense’s investigation experience Jurman testified that his representing defendant failed to reveal that defendant suffered any mental or that could be raised as a from disease defect *27 County prosecution defense to the of the Atlantic murder. Next, Blumberg, penal Jennifer a counselor at the Mercer Center, “major” County disciplinary Detention testified that no brought against actions had been defendant and that he was a inmate.” “model testify, story primarily did not told the of his life
Defendant but Albarus, through expert conducting psychosocial in Carmeta an histories, Dougherty, psychologist, Dr. a defense and a few close family members. history by engaging in
Albarus constructed a social of defendant him, members, family repeated interviews with his and with other personally significant, people his life. Albarus also reviewed school, Navy, institutional records on defendant such as his employment goal investigation explore her was to records. The family system help patterns of behavior in the order to her cross-examination, draw conclusions about defendant. On brought psychiatrist, psycholo- not a out Albarus was worker, gist, attorney. acknowledged or also that all of social She prior appearances capital eases had been on behalf of her defendants. one of seven children born
Albarus testified defendant was nurturing and Ellen Loftin. Fred Loftin was the more Fred five, poor parent, provider. but a When Donald was Fred Loftin suddenly disappeared. pregnant, Mrs. Loftin was left with seven children, great and a amount of debt. constantly extremely keep Loftin hard to her
Mrs. worked dressed, fed, that the children and educated. Albarus testified rarely being provider meant Mrs. Loftin was strain of the sole home, ability had little to nurture the children at and that she Loftin never able to relate Albarus believed that Mrs.
home. maternal manner because she came her children in a warm or upbringing with ex- dysfunctional and abusive and dealt from a traordinary stresses. family, of his year following Fred Loftin’s abandonment Defendant, old, six-years set his mat-
conditions deteriorated. family ground. home burned to the on fire and as a result the tress assistance, Loftins, already public on were moved to one stay Though only planning to for a brief bedroom hotel room. actually period. for an period, the Loftins remained extended counseling explore why out received he acted Defendant never causing help guilt him and trauma of in this manner or to with significant event. such attempt in the related that Fred Loftin did to resurface
Albarus instance, separate In the first children’s lives on two occasions. twelve, approximately eleven or Fred Loftin when defendant was Denver, family him' in called his and invited his children to visit only to meet his Defendant was the child that refused Colorado. *28 instance, Loftin came home to visit. father. In the second Fred unclear, Although transcript appears it that defendant was the time, early in his father returned. At that his twenties when father, demanding why did confront his an answer to he defendant family. explanation, had left the Defendant received no and never fully Although resolved the issue. Albarus testified on direct that defendant, departure she ac- defendant’s father’s “traumatized” Jackson, report prepared by Ryno knowledged that a Dr. a psychiatrist, defense-retained concluded that “Donald does not having any feeling regarding leaving.” recall his father’s Albarus, According always struggling to “do to defendant was right thing” “perfect younger, he the and be the son.” Even when responsibility Although his mother. seemed to want to take for marijuana drop during of a brief stint of defendant did out school teens, advertising early flyer he soon found a the road to use his pursue through Defendant chose to that avenue. salvation Jesus. school, Returning completed to his G.E.D. The testimo- defendant actually expended ny adduced at trial indicates that defendant stay help siblings get or significant trying time effort to his on and right path. on old, Dorothy twenty-years was he married
When defendant Albarus, a of According to as result Ellen Loftin’s McMillan. compelled his strong disapproval, felt to abandon first defendant loyal family. separation family to to his new in order remain Dorothy’s and first son was still- painful was most when Donald not attend the funeral. born and Mrs. Loftin did relationship, al- Dorothy and a conflict-filled Defendant had though which conflicts manifested themselves the extent to disputed was at trial. The various forms domestic violence First, roots. to have several defendant conflicts seemed own, uncompromising, rather visions Dorothy each had their far more role a wife. Defendant’s vision was proper marriage have been Conflicts in the also seem to conservative. in, by, inability defendant’s to achieve rooted or exacerbated want- experts suggested Defense success he desired. Donald went provider to that his father was not. Defendant ed be the careers, attaining goals which he through number never to a family to himself and his Denver. He aspired. Defendant moved Navy joined fairly successful. Within eventually ship duty. idea of Unable to stand the year, assigned he was young daughter, place in a with their separation and survival new day attempted suicide on that defendant was Dorothy Loftin general discharge to attend sail. He then obtained scheduled to to his wife. Navy, Dorothy from sent discharge his
After however, Pennsylvania. Eventually, defen- family home her family with Dorothy’s and work to live with dant did return home decided to return auto- his Defendant then father-in-law. *29 training successfully completing his mechanic school. While Institute, job mechanic. obtained a as a Lincoln defendant never Ultimately Rather, only washing cars. was able find work he County at Bucks to return school he and his wife each decided Community College. Dorothy very Loftin did at college, well but defendant was performing on a passing level. He refused to counseling seek grades for his or to depression handle the resulting frustration performance. from his Although the conflicts can be certainty, identified with some how these conflicts manifested relationship themselves within the Christie, less clear. Probation Officer Daria the Atlantic Coun- ty supervisor case prepared who presentence report following murder, defendant’s conviction for the Fetter testified that in a phone Dorothy interview Loftin indicated that she unhappy marriage, “very spiteful,” defendant was and that defen- “frequently dant her abused” and the children. Rather than taking responsibility actions, for his Dorothy reportedly Loftin said that defendant shifted the blame. Christie also testified that Dorothy Loftin calling refrained from police because she was fearful of Dorothy defendant. allegedly Loftin reported also mentally defendant was abusive. questioned
When on cross-examination, however, direct and Dorothy Loftin stating denied ever that defendant “abused” her or Although children. Mrs. acknowledged Loftin that defendant occasion, hit her on one she testified that she did not call the police because she had no call; bruises and did not see a need to she denied that she reprisal feared if she called.
Both the presented defense and the testimony psychol- ogists who evaluated defendant’s mental health. Dr. Edward J. Dougherty, a psychology expert, defense concluded that defen- dant’s aberrant behavior was consistent with the fact that he suffered from personality “borderline disorder.” On direct exami- nation, Dougherty Dr. explained that the disorder manifests as a pervasive Self-image pattern instability personal relationships. sometimes Begins marked [sie] passivity, adulthood and early in various appears It ways. long
takes time to It is a serious develop. very disorder. personality person A is believed to suffer this if disorder he or she satisfies five out of nine criteria set forth in Psychiatric the American Diagnostic (DSM-IY). Association’s and Statistical Manual Dr. *30 nine met six or Dougherty testified that defendant seven criteria. (2) (1) imagined ... frantic or efforts to avoid real abandonment He demonstrated: characterized by of unstable and intense interpersonal relationships pattern (overidealization alternating of his between extremes of idealization and devaluation (3) mother); and unstable markedly disturbance: persistently
wife identity (6) self-image due a marked self; reactivity or sense of affective instability (8) (7) feelings anger or ... intense mood ... chronic of emptiness inappropriate, (9) anger controlling or ideation transient, ... and stress-related paranoid difficulty dissociative symptoms. severe experiencing defendant Dougherty opined Dr. further that was symptoms he committed the offenses. to severe when moderate degree on the of stress that Dougherty based this conclusion laboring at the time. Unlike the structured defendant was under Navy, auto- experienced in the that defendant had environments school, through a prison, struggling or was mechanic defendant stability. or He was period he did structure where not have wife, school, relationship his objectively in his with failing —in image he yet fighting to maintain the employment his endeavors — Dr. by appearance of success. putting achieve on the hoped to explained Dougherty that grey ... no is how he white areas. This Loftin sees the world in black and Donald being with
judges when starts faced see, and life. And he doesn’t he when people everything, gray it. he can’t handle world, are areas there reality dealing jobs, dealing Dealing with with with identity. people, family who corrobo- also numerous members The defense called by provided background information much of the factual rated defendant, begged Albarus, relationships their with described family members who spare his life. Some brother, sisters, wife, parents, twin included testified defendant’s that these witnesses testified father-in-law. None of and his childhood, indicated during abused his and all defendant children. mother was to her defendant’s devoted rebuttal, as its Dr. Charles Martinson the State called did expert. concluded that defendant psychiatric Martinson Dr. disease, defect, illness, as any or disorder from not suffer mental Rather, Dr. Martinson asserted DSM-IV. in the defined Dr. Mar- economic reasons. committed the murder for only tinson that the “remorse” defendant exhibited occurred added jobs. when he respons- learned that Marsh held two Defendant’s in a completion es “sentence test” administered a defense- *31 psychologist retained also revealed defendant’s lack of remorse. example, complete For when beginning “My asked to the sentence wrote, greatest ...” mistake was defendant “become incarcerat- “I completed ed.” don’t know how ...” was to read “I allowed myself get predicament.” into this “I ...” feel bad when was completed “I my family.” with think about “It hurts when ...” completed “things was with I away” have achieved life are taken only completed and “I ...” wish that was with “racism is banished society.” from
Dr. Martinson also concluded that defendant did not suffer from a personality borderline disorder when he murdered Marsh. In- stead, opined he that defendant exhibited narcissistic and antiso- personality cross-examination, cial traits. On Dr. Martinson ac- however, knowledged, that defendant signs did exhibit some emotional distress.
Although testify, right did not he did exercise his See, infra, allocution. 680A.2d at 795. 6, 1994,
On December jury sentence, the returned a death finding proved that the State has aggravating each of the three beyond factors a Although juror reasonable doubt. at least one factors, had found the statutory mitigating existence of the 2C:11-3c(5)(a) N.J.S.A. 2C:11-3c(5)(c), and N.J.S.A. and at least juror one had found the existence of proffered seventeen of the factors, non-statutory mitigating jury the unanimously found that aggravating the three outweighed factors mitigat those nineteen ing factors. The aggravating further found that each factor individually outweighed mitigating beyond factors a reasonable doubt. I,
Defendant was knowing sentenced to death on count or purposeful murder, murder. felony Defendant’s conviction for II, merged count was capital into his conviction for murder. twenty years Defendant was to a sentenced term of with a ten- to a term disqualifier III. He was sentenced year parole on count disqualifier on year parole years a and one-half of five with two III made concur- on counts and IV were count IV. The sentences life to the I. The were run consecutive to count sentences rent County serving the Atlantic sentence that defendant murder conviction. January this Court on Appeal was filed with
A Notice of on appearing The Trentonian As result of an article 1995. a verdict, penalty-phase returned the day after penalty- argued motion to interview defense submitted and motion for jurors. That denied. Defendant’s phase motion was remand was denied this Court. limited record, seeking to expand made two motions Defendant prosecu- stating autopsy report and affidavits include proper notice advance with provide tor failed defense counsel mo- report. Both County presentence obtaining the Atlantic granted. tions were
II Constitutionality of Act the death-penalty statute violates argues that the Defendant punishment contained against cruel and unusual prohibition the have federal We Eighth Amendment of the Constitution. the Harris, see, e.g., v. rejected arguments, State similar repeatedly (1995); 126 525, 574, Biegenwald, v. A.2d State 662 333 141 N.J. Moore, IV); (1991) v. 1, 16, (Biegenwald State A.2d 172 594 Ramseur, (1991); v. 106 N.J. 420, 486, 864 585 A.2d State 122 N.J. (1987), reject them 123, 185-97, continue to 188 and 524 A.2d today.
Ill Guilt-Phase Issues jury guilt-phase Death-qualification of A 1758, 162, McCree, 90 106 S.Ct. 476 U.S. In Lockhart v. approved of (1986), Supreme Court the States 137 United L.Ed.2d 384 practice
the qualifying” jurors. qualification” of “death “Death jurors prevent excludes for cause those whose views “would or substantially impair performance the of duties.” Adams v. [their] Texas, 38, 2521, U.S. 100 S.Ct. L.Ed.2d 589 (1980); Oklahoma, 81, 85-89, see also Ross v. 487 U.S. 108 S.Ct. 2273, 2276-79, (1988)(clarifying 101 L.Ed.2d 88-90 that death- qualification excluding jurors always entails who would either Ramseur, oppose always support penalty); supra, or death 248-56, Jersey N.J. at (requiring A.2d 188 New trial courts to test). jurors, death-qualify follow Adams To in the trial court capital forms of questions them the nature of the cáse and then closely them capital punishment. on their of views separate juries empaneled guilt Two for penalty were the phases capital aggravating defendant’s trial because one of the penalty factors cited the for phase prior awas “blinding conviction. To avoid impact” prior murder guilt, murder on the determination required this Court has IV, separate juries. Biegenwald 43-44, 126 N.J. at penalty-phase A .2d jury fully qualified. 172. death guilt phase, Prior to selection defense made counsel objection qualification clear jurors his death who would guilt: determine Judge, I on as stated the record my is that there should be no yesterday, position mention whatsoever this is a death case. I as far as I’m mean, penalty concerned that issue is irrelevant as whether this determines that totally Mr. Loftin committed the offense or not. determining guilt or They’re death.
innocence, not agree prejudicial. I is with State there some is impact impact Any jurors jurors, things time mention death you or certain start penalty prospective going juror on in their heads. I think And when the hears it’s a death penalty juror might guy guilty seeking [case, that] think this that’s the State is why *33 the death penalty____ Ultimately, agreed the trial jury court not to inform the of the case, potential penalty in juror death the but that if decided a potential sentence, lie; asked the trial if about the court would not juror fairly issue, impartially the was unable to and decide that
335 again com- juror be Defense counsel then that would removed. plained: going I Honor, can’t sit look, the that are say, your individuals only Obviously, going against So we’re the death what are the individuals that are penalty____ jury suggestion, Judge, is a with pro-death if we use that
have, packed people penalty. sentence, and thus
However,
juror
potential
the
no
asked about
being death-qualified.
without
guilt-phase
the
deliberated
sponte
failure to sua
that
trial court’s
contends
the
Defendant
jurors, during
jury and inform
death-qualiiy
guilt-phase
trial, of the
jury charge at the close of
voir dire
during
decision,
consequences of
violated his constitutional
potential
their
jury’s
imposition of
responsibility for the
rights by “dilut[ing] the
Mejia,
v.
penalty,” constituting plain error. State
141
the death
(1995)
Bey, 112
State v.
N.J.
475, 485,
(quoting
Prior-murder what he defendant concomitant defendant. otherwise sentence because the P.2d that convicted voir dire before (1978). [110] questioning guilt did, of other admissible as evidence did. See at 116 death Because of of the phase convictions are relevant [(1991)](finding eligible. who he guilt should almost crimes”). presumption United about guilt phase, sentencing is.”), phase See a States v. Myers, prejudice defendant’s however, cert. [State v.] Pinnell, invariably that during phase innocence denied, “implied that “objective is limited to a determination to the that portion focuses in other murder convictions could come 550 that a defendant determination U.S. F.2d be only a bifurcated trial defendant had engendered part 1036, after on the character 311 Or. 1044 case, S.Ct. of the appropriate by (5th must be tried for see Evid. R. [98] previously at voir was thwarted” Cir.1977) (“A that are not has found of what the 58 L.Ed.2d dire of the prior been 172.] [Id. 44-45, A.2d *34 336 Erazo, 112, 133, (1991),
In State v.
126 N.J.
That
prior
of a defendant’s
would
conviction
“blinding impact”
subsequent
a
have
on a defendant’s
conviction is
IV,
undisputed. Biegenwald
43-43,
126
at
N.J.
594 A.2d
Moreover,
asserts,
172.
defense
have
counsel
counsel
as
defense
cases,
in
death-qualifying jury prior
guilt phase
other
that
a
to the
See,
Lockhart,
produces conviction-prone juries.
e.g.,
supra, 476
at
(discussing
U.S.
Even
we
“except
have held that
cases,
most extreme
strategic
by
decisions made
defense counsel
present grounds
will not
appeal.”
for reversal on
State v. Mar
shall,
(1991) (Marshall I).
Thus,
A.2d
I, supra,
Marshall
we
error
found no
when the court
a
conducted
qualification
pursuant
limited death
at voir dire
coun
defense
request.
Therefore, if
objects
sel’s
Ibid.
defense counsel
to the
death-qualification
guilt-phase jury
involving
in a case
e(4)(a),
aggravating
objec
factor
a trial court shall deem such an
tion
be a
right
death-qualified jury
waiver
defendant’s
to a
However,
guilt-phase.
any
objection,
in the absence of
such
jurors
give guilt-phase
severely
trial courts will
death
restricted
qualification, specifically
informing
prior
them defendant’s
conviction for
presents
proper
murder. That result
balance
expressed
between the concerns
defense counsel that a death-
holding
the Court’s
qualified jury
prone to convict and
is more
findings.”
legal
jurors
told
effects
their
should be
“of
*35
II,
Bey
(quoting
Mejia, supra,
B. Voir Dire Individualized voir dire
1. objection, con- During guilt phase, the trial court the without prospective jury. Sixteen ducted an in banc voir dire questioning and told jurors the called for from entire venire were any applied to The responses question to them. provide to very carefully to to remaining venire “listen court instructed the that one or questions. In the event all the court’s remarks and excused, necessary to any persons going then it’s be these are than the Rather replace to them someone from courtroom. with you if simply going I’m to ask repeat questions all of ... any you or not have you’ve everything heard ... and whether jurors repeatedly instructed the court further responses.” The they any question, that, responding to they if uncomfortable felt questions and raise their hands and for a more then could wait few private a meeting to on more discuss issue seek a sidebar level. It indictment. asked whether read the entire
The court then court next anything the case. trial jurors about knew place, asked if crime took and where the described location again location. The trial court anyone familiar with that responses asked furnishing questioned jurors all affirmative questioning was needed. additional counsel whether employed day voir dire the court continued The next jurors approach the court at encouraging procedure, again same potential sidebar to court discuss sensitive issues. The listed all likely witnesses and individuals whose were men- names be trial, asking during any juror any tioned whether knew of them. officers, many Given that witnesses would be law enforcement juror any court give asked whether would be inclined to or more weight testimony. less inquired to their- The trial court also juror, any family, whether their or close Mends had ever been employed by County any the Mercer Prosecutor’s Office or other agency; law they enforcement whether had been victims of crime; crime; they had ever been accused of a whether prior had petit jury, and, grand acknowledged service on a or to those who service, prior explained differing civil burdens involved juror responded civil If affirmatively and criminal actions. any questions, juror questioned these court more specifically. *36 juror
Each
required
provide pedigree
was then
information
name, residence,
status,
such as
occupations
marital
of them-
juror,
selves and
spouses.
every
their
For
the
court turned
they
counsel and
“any
questions
asked whether
had
additional
or
and,
end,
applications”
they
at the
if
asked counsel
desired addi-
request,
tional
each
responded
sidebar. To
negatively.
counsel
l:8-3(a)
Rule
provides that
interrogate
“the court shall
the
prospective jurors
required
in
box after the
number are drawn
without placing them under oath----
punisha
At trials of crimes
death,
ble
juror
the examination shall be
of each
made
individu
drawn,
ally, as his name is
and under oath.” Defendant contends
that the in
dire
requirement
banc voir
violated both the
of Rule
l:8-3(a)
provide
“heightened”
and also failed to
juror
need for
impartiality
Williams,
39,
capital
(citing
in
cases
State v.
93 N.J.
(Williams
61,
(1983)
I)).
339
added),
245,
part
other
(1968)(emphasis
A.2d
rev’d
on
245
20
(1971);
946,
2277,
L.Ed.2d
see
grounds, 403
91 S.Ct.
U.S.
(1988)
Williams,
413,
Moreover, rather claim that an individualized defendant’s led to more candid proceeding an in would have than banc *37 jurors unsupported is no by by the evidence. There responses jurors fully the prospective in record that were indication considering Practice Committee is 1 The Court's Criminal currently Supreme guilt a case is an amendment "to make it clear when phase capital usual method selection tried from the phase, be penalty separately Judges guilt individual dire.” be rather than voir should employed phase (Nov. 1995). 67 n. 5 Bench Manual Cases Capital candid with the they court or would have been more candid if were questions asked in an individualized voir dire. Defendant jurors points to backgrounds; who failed to disclose criminal however, jurors sidebar, questioned those all were at in an individ- manner, yet ualized still failed to disclose the information. .Be- examples by cause all the initially cited defendant occurred at panelist replaced juror sidebar a prospective when new a struck by peremptory challenge, prospective defendant’s assertion that jurors kept people learning silent for fear of other their secrets is unfounded. Martini,
Although
perfect,
no voir dire is
State v.
131 N.J.
(1993) (Martini I),
2. of voir dire on racial bias when, previously case,
We have
held that
as in this
the trial
murder,
involves an interracial
defendant is entitled to have the
jurors
potential
questioned
prejudices
about
and biases. Rams
eur,
243-48,
188;
Prior to requested voir defense counsel that the trial court ask following questions: prejudice Mr. Loftin ais black victim man, would that white, or any way sitting juror
influence your as this case? prejudice, Do know of such as you any reason, bias, or other can opinion you serving juror? think of that would from as a prevent you completely impartial *38 and noted that the agreed question first trial court to ask the The voir in the court’s own extensive question would come out other “if at end of counsel that dire. The court informed defense you jurors still have preliminary questioning of the the court’s list, can you’d to raise from this we questions that like additional time.” address it at that gave following instruction to trial court jurors:
prospective
prejudice,
deciding
without
bias,
áre to do so without
are,
But in
what the facts
you
going to talk a little bit
and I’m
kind,
or favor of any
without sympathy, passion,
prejudice,
when we hear the word
us,
for most of
bias and
because
more about
or
us of
prejudice,
get
want
to think
accuse
because we don’t
anybody
we
defensive
being prejudiced.
that
And that’s
I asked
question yesterday.
why
an African-American and
in this case is
I
out to
that the defendant
you
pointed
make a
and I asked would
white,
any
you
in this matter is
that the victim
—
all answered no
racial
and you
in this case based on the
makeup,
decision
as
can make a decision
so these attorneys
to find a little bit about yours,
We need
prejudice
fair and
on
to be
or
will
your ability
to whether or not
bias
your
impact
in this case.
impartial
but I
going
give
a
example,
an
And it’s very simplistic
I’m
to
you
example.
So
trying
that I’m not
is
to think that because the
simplistic
don’t want
example
you
juror
emphasizing
as
very,
I
your responsibility
make a serious
keep
point.
critical____
very
going
I am a diehard Cowboys
I’m
to use is
sports example.
The example
going
fan____
I’m
courthouse know where
in this
Now,
know,
you
attorneys
me
I don’t like the
know,
real bold.
let
They
And some of them are
from.
that?____
I handle
How do
Cowboys.
get
I
them
can’t
Getting
here,
walk in
do tell
you
to the
when
attorneys,
they
back
attitude____
right
I
that kind of
justice
Do take
don’t have the ...
because you
more subtle
or do I take the
bias,
approach?----
be
about my
attitude and
open
prejudices.
We
This is 1994.
with our biases and
isn’t that how we deal
Obviously,
things.
that,
know
go
feel about
Only you
tell
how we
don’t
out
openly
people
prejudice that would affect your
or if
have a
if have a bias
you
but we ask you
us about
defendant,
and fail-to the
tell
of New Jersey
to be fair to the State
ability
but if
sidebar,
can do it at
wait a
you
You
can
couple
questions,
it.
you
don’t —
fair and
to be
that could affect your ability
have
bias
any
believe
you
you
hand.
raise your
impartial, please
sought
explanation or
objected to this
never
Defense counsel
now, however, claims that
questions. Defendant
ask additional
extensively was
jurors more
question
trial court’s failure
First,
the trial court’s
contends
plain error.
*39
answer,
jurors
only
namely,
are not
question invited
one
that
Second,
Moore,
supra,
Justice
had
inquiry
charged
conduct a further
because defendant was
an
with
(Handler, J.,
416-20,
interracial crime. Post at
We find trial court’s ideal, example may it ate. court’s football not have been but adequately conveyed point. Limitation on
C. defense theories 1. Refusal to perpetrators allow cross-examination about other testify, present any Defendant did nor did he witnesses at Rather, guilt phase of pursued the trial. the defense following three theories to raise doubt about whether he had (1) multiple committed the murder of Marsh: there were (2) perpetrators robbery, third-party guilt; involved in the or only defendant did not commit the crime but found the wallet after (3) murder; “robbery that the murder resulted from gone bad.” cross-examining police members of the force who had investi- murder,
gated attempted testimony the Marsh to elicit *40 supporting theory multiple perpetrators may the that have been robbery involved the of the Exxon station. The trial court witnesses, police questions twice refused to allow certain and complains deprived defendant that those restrictions him of his right present to confront witnesses and a defense. death-penalty eligibility 2C:11-3c to those
N.J.S.A. limits by defendants convicted of murder committed their own conduct. capital-murder may her “[A] focus his or efforts the guilt phase raising trigger on a reasonable doubt about issues that penalty phase, vigorously contesting guilt rather than or the Brown, v. charge.” innocence on the murder (1994). 517, 651 A.2d19 Maple
Patrolman Thomas was called the State to testify police investigation During about the of the murder scene. examination, police direct the officer described the arrival at the scene, station, appearance gas appear the the victim’s and Maple ance. further testified that there no evidence of a upon struggle. During testimony, Maple partner’s his relied his report of the crime scene to refresh his recollection. cross-examination, attempted
During defense counsel to ask the anything your following question: Maple, “Patrolman was there morning 5th, in the May 6:15 investigation on 1992 between possibility of morning would eliminate in the which 9:00 robbery/homicide?” particular "with this multiple actors involved question objection, finding that the an trial court sustained The trial court scope direct examination. was outside you to cover areas not covered that want the extent “[t]o added: examination, on the defense I do believe he is listed by his direct list____ for recall on officer to be available You want the witness that, question- case, certainly may this line of you do but defense Maple and address stop.” chose not to call ing must Defendant questions. these scope of direct generally limited to the
Cross-examination 611(b). trial, argued examination, counsel At defense N.J.R.E. scope examination question of direct was within Maple used to report by Maple’s partner that written because recollection, raising implica- “suspect[s],” discussed refresh his correctly rejected multiple perpetrators. The trial court tion of report single line in a attempt, that reference to a because part constitute admitted into evidence did not that was not that, Maple because Defendant now contends direct examination. scene, legitimate question him about it was discussed the crime multiple any about the crime scene revealed evidence whether bring question into the perpetrators. That contention would it with the if trial counsel had raised scope of direct examination However, the trial any error was harmless because trial court. Maple clearly that he could recall court informed defendant *41 Thus, right questions. R. 2:10-2. defendant’s those raise present compromised at all. a defense was Sergeant Joseph Mosner. Mosner presented
The State also office, layout the includ- gasoline of the station and described and bullets were found. Defense ing the locations where blood of his Mosner about the details counsel then cross-examined the fact that layout, and elicited from the officer description of the (none fingerprints in the office police found several had defendant). Then, suddenly, defense counsel asked: matched
345
investigate the
you
asked to check or
later
were
“Sometime
Loftin,
trial court refused
Ronald Loftin?” The
brother of Donald
guilt
question
third-party
under the
doctrine.
to allow the
third-party guilt
implicated
doctrine is
when
prove
agency produced
another
that
“seek[s]
Sturdivant,
165,
charged.”
v.
31 N.J.
he is
State
death with which
denied,
873,
(1959),
A
cert.
362 U.S.
80 S.Ct.
155 .2d
(1960).
unsupported
Because of the ease which
L.Ed.2d 873
third-party guilt
may
process, we have held that
claims
infect the
a rational
only
proof
when “the
offered has
evidence is admissible
respect
to an
tendency
éngender a reasonable doubt with
Koedatich,
v.
feature of the State’s case.” Ibid.
essential
(Koedatich
denied,
(1988)
I),
225, 300,
cert.
2. Limitations on counsel’s summation defense statements, closing granted the trial court a motion in Prior to making arguments precluding limine the defense from certain during summation. Defendant contends that those limitations deprived meaningful opportunity present complete him of “a to 688, 690, Kentucky, Crane v. 476 U.S. 106 S.Ct. defense.” (1986) (citations omitted). 90 L.Ed.2d trial, During the the State focused on defendant’s statement to (as Marsh) employees Gary that he Exxon. the Sears worked at personal belongings him Because none of Marsh’s identified as an employee, jury Exxon the State asked the to conclude that defen- only that at Exxon if dant could have known Mr. Marsh worked robbery/homi- during defendant had been at the Exxon station sought argue cide. Defense counsel to in summation that defen- station, dant need not have been at the Exxon but could have simply found Mr. Marsh’s wallet and read about the homicide in newspapers reported one of the Trenton homicide Indeed, Citron, provided details. Thomas one of the State’s witnesses, police seeing had first contacted the after an article newspaper. about the homicide The trial court refused to allow defense counsel to assert that newspaper defendant read about the crime because there presented was no evidence at trial to allow this inference. Howev- er, permit argue the court did the defense that the information newspaper “people” in the was available for to read. going I want it to be to tell the that Mr. Loftin could have clear, you’re going
read the article. You’re not words. You can those say certainly say ____ that Mr. read the article could or Citron one infer Certainly a lot of conclude could have read the article. people summation, During argued defense counsel that the information supplied by defendant to “the same information Sears was *43 ... in the equipped was with that he had read Mr. Citron newspapers the incident.” about scope argument must of defendant’s summation Reynolds, the “four corners of the evidence.” State v.
not exceed
denied,
163, 176, 195
84 S.Ct.
A.2d
cert.
377 U.S.
(1964) (citation omitted).
cor
The “four
L.Ed.2d
ners” include the evidence and all reasonable inferences drawn
(1966).
Hill,
490, 499,
v.
47 N.J.
Moreover, argument been even if the should have adequately harmless error. The defense was its exclusion was acquired the suggest that defendant could have able to to Moreover, newspaper. the evidence was information from the Exxon station and com overwhelming that defendant was at the murder, have concluded that mitted the and no rational would merely read about the crime was not at the scene but defendant paper. sought argue in summation that Defense counsel also accident, an may not have been intentional but rather the homicide “robbery trial court restricted that gone of a bad.” The the result First, sought argue that ways. defendant argument in several a nail and nail biters are nervous because Mr. Marsh was biter could might have acted in a nervous manner “which people, he discharge weapon of the which went off.” explain the unintended argument had trial court that such an readily agree with the We no in the evidence. basis
Second, sought argue in summation that the gun. discharge an accidental homicide was the result of object objected, clarifying it did not to the defense The State that tell us this is an arguing that “the evidence cannot whether robbery fight intentional murder versus an accident or a or a just awry,” object asserting an went but it did to defense counsel evidentiary unsupported by for a basis conclusion the in limine virtually evidence. As defendant conceded at hearing, proffer the scenarios he wished to were not based on agreed facts in but the lack of facts. The trial court with evidence State, asserting support no inference to that there was fact or “robbery gone theory. agree. bad” .We *44 permitted argue, argue, to in fact that Defendant was and did conclusively proving an there was no evidence that this was not example, pointed accidental death. For defense counsel to the itself, inability, autopsy medical on the to rule examiner’s based However, actually out accidental death. because no evidence that record, supported theory developed on the the defense was correctly precluded arguing trial court from that a affirmatively support that factual basis existed to the conclusion the death was accidental. struggle
There a was no evidence of and no evidence that the Indeed, gun discharged accidentally. presented the State testimo- ny gun only safety if that could fire was removed and ten Thus, pounds pressure applied trigger. if to the even argue “robbery gone theory, defendant were able to bad” weight disregard sheer of the facts would have led the to it. “robbery support gone Because there was no evidence to bad” theory, correctly argument the trial court limited the defense on theory. that provide non-unanimity
D. Failure to
instruction
jury charge
at the
The trial court’s
followed
law as it existed
trial,
jury charges in
required
time of
but we have modified the
Mejia, supra,
eases,
475,
141 N.J.
two recent
N.J.S.A. two kill committed with an intent and those committed with an Gerald, bodily injury. intent to inflict serious In v. 40, 69, (1988), only 549 A.2d we held those convicted eligible kill murder with an intent could be for the death penalty. bodily Those who killed with an intent to inflict serious injury only non-capital could be convicted murder. Jersey the New Constitution was amended overrule Const, ¶I, Legislature subsequently
Gerald. N.J. art. 12. The 2C:11-3i, authorizing penalty mur passed N.J.S.A. the death bodily injury. ders committed with the intent to commit serious However, applicable to because the offense was Gerald is this case Mejia, supra, Accord committed before Gerald was overruled. 141 N.J. at 662A.2d 308. penalty, eligible
For a defendant to be for the death N.J.S.A. requires death either 2C:11-3c that the defendant have caused by hiring his own conduct or someone to commit the murder. “[tjhere Generally, question may no a defendant convict be theory purposeful knowing or on a of vicarious ed of murder Gerald, However, liability.” A.2d 792. 113 N.J. at imposes triggering “a device for the death N.J.S.A. 2C:11-3c *45 penalty,” requirement an additional that renders defendant Moore, 561, death-eligible. (quoting N.J.Super. Ibid. State v. (Law Div.1985)). 576, 504A.2d 804 properly jury in The trial court instructed the accordance with that it must decide the defendant acted with an Gerald whether bodily injury. intent to kill or to inflict serious The returned kill a unanimous verdict that defendant intended to Marsh. jury that it must decide whether
trial court also instructed the by Again, the caused Marsh’s death his own conduct. defendant jury unanimously decided that did in fact do so. defendant Brown, “[although jury verdict that a that a
In
we held
must be
by
own conduct
a murder
his
committed
defendant
a
support a verdict that
unanimous, unanimity
required
to
is
by
murder
his own
did not commit the
guilty of murder
defendant
511,
inability
jury’s
A
at
extended our option returning a non-unanimous also “inform at 662 A.2d mental state.” N.J. verdict on a defendant’s Mejia, the trial court the benefit of our decision 308. Without charge. provide that did not cases, give a have found the failure to appropriate
“In
we
a
provide
evidence did not
charge
harmless when the
Gerald
to be
only
intended
finding
the defendant
rational basis for
injury.”
A .2d 308.
have
bodily
Id. at
We
serious
provide
failed to
analysis when the trial court
undertaken a similar
544-47,
instruction, ibid.; Harris, supra, 141
Mejia
provide
a Brown
the trial court failed
A .2d
and when
*46
instruction,
Brown,
522-27,
e.g.,
We address the
first. The
is
Gerald issue
issue whether
there was a rational basis on which the
could have concluded
only
bodily injury
that defendant intended
serious
when he shot
(Marsh
victim,
range,
at close
in the
side
head.
was
up
shot
the side of the head
the bullet ended
in the back
then,
Obviously,
wall.
Marsh was shot from the front
or the
wall
arrived,
police
door.
three
from
When
Marsh’s head was
feet
implication
quite
the front wall. The clear
is that Marsh was
close
(who
standing
to defendant
must have been
between Marsh and
wall,
away),
gun
the front
three feet
and that defendant had his
head.)
pointing
question
to the
is
side Marsh’s
“To state the
Rose,
61, 63-64,
virtually to
it.” State v.
576 A.2d
answer
(1990).
There
that there
no
was uncontradicted evidence
sign
struggle
of a
and that the victim had no defensive wounds on
his hands or arms. There was also uncontradicted evidence that
carry weapons,
defendant had a license to
a business card for a
association,
shooting range, membership application
gun
for a
ammunition,
equipment to make his own
and over 500 rounds of
before,
gun.
apparently
gun
ammunition for his
He had
used his
half-empty.
as one box of ammunition was
In order to fire the
and,
weapon,
required
safety
defendant was
to remove the
with
pounds
pressure, pull
trigger.
ten and a half
“It
‘practically
certain’ that his
inconceivable that defendant was
Ibid, (finding
action would kill” the victim.
no rational basis to
only
bodily injury
believe that defendant
intended serious
when
defendant,
experienced
weapons
required
and was
who was
with
apply
pounds
pressure
weapon,
four
to fire
killed victim with
abdomen).
single,
range
close
shot to
current case are
Defendant contends that
the facts of the
(1990),
Long,
similar to those
State v.
119 N.J.
575A.2d
(1990),
Pennington,
and State v.
119 N.J.
Similarly,
Pennington, supra,
in
claimed that “he
the defendant
him,
glass
and he fired his
startled
the victim threw a
at
when
reflexively.”
Immediately
Justice O’Hern
Mejia,
in
found a
similar to that of the defendant
where we
bodily
that defendant intended serious
rational basis to conclude
J.,
(O’Hern,
injury
than
Post at
While defense argued counsel in summation that there could struggle have been a or an discharge accidental weapon might Marsh something defendant, have done provoke argument counsel’s is not simply evidence. There was no evidence *48 to overwhelming proof contradict the that defendant intended to kill provocation Marsh without struggle. or dissenting Our col league, however, presented asserts the defense would have stronger theory of an shooting accidental “if it had not been unfairly developing restricted in its defense at trial.” Post at (O’Hern, J., 680 A.2d at dissenting). examples, He cites as pathologist’s testimony that based on an examination of the bullet hole in Marsh’s skull preclude she could not accidental death and the observation pathologist that “neither the nor the expert State’s ballistic stated that any there was evidence that the gun point was range.” fired at blank Considering Ibid. penetrate bullets flesh and bones in the same manner whether the person firing the bullet intends kill accidentally, or shoots expert’s the ballistic testimony gun only that the could if fire safety was pounds removed and ten pressure applied of to the trigger, support those revelations offer scant for an accidental- theory. death In the undisputed face of the evidence that defen dant, shot, experienced an safety, removed the exerted over ten pounds pressure trigger, on the and then fired a bullet into the (in side of range Marsh’s head from close any signs the absence of struggle), those slender reeds could not form a rational basis for juror to conclude that defendant did not intend to kill his victim. jurors did, While the point, at one explain ask court to difference between intent to kill bodily and intent to inflict serious injury, they question felony did so in the context of a about murder and whether guilty only defendant could be found of one to have question seems charged That crimes.
or all of required to jury was a confusion about whether reflected indepen- each one crimes or consider the different choose between jury could question that the from that dently. do not infer We only that defendant basis existed to conclude that a rational find bodily harm. serious intended other cases where we to that of conduct is similar
Defendant’s
might have
to conclude that the defendant
rational basis
found no
Harris,
See, e.g.,
bodily injury.
inflict
only intended to
serious
550-51,
(finding no rational basis
We there was no rational basis for harmless because instruction was murder juror that defendant did not commit the to have concluded revealed that The uncontradicted evidence by his own conduct. by gun bought by a bullet fired was killed Mr. Marsh owning in defendant’s car. addition defendant and found crime, ap instrumentality defendant possessing and proceeds of the crime when peared possession of all of the to be arrested, credit cards including identification and Marsh’s he was fifty-dollar presented no evidence bill. Defendant as well as contrary, to the In the absence of evidence rebut those facts. conclusively that defendant presented at trial establishes evidence “by killed Marsh his own conduct.” Since there nowas rational juror otherwise, basis for a to have concluded the failure to provide the Brown instruction not will disturb defendant’s convic- tion or sentence.
rv
Penalty-Phase Issues A. Exclusion of photographs three
During trial, penalty phase Loftin, Dorothy defen wife, dant’s testified photographs about five of defendant and his family. photo depicted Each an event in defendant’s life in 1989. (1) photographs included: defendant a naval uniform at his (2) graduation defendant, from camp; again boot in his naval uniform, taken after he rushed home training from his naval daughter tend to his six-month seriously old who had ill been with (3) croup; defendant daughter, with his sister-in-law and his Danielle, (4) just prior Colorado; to defendant’s move to Clinton, nephew, with his gradua at the celebration of defendant’s school; (5) tion from technical defendant and his wife at Saint Hospital Trenton, immediately Francis after the birth of his daughter. objected
The State to defendant’s motion to introduce the photographs into argued evidence. The photo- graphs establishing any were reliable evidence mitigating therefore, properly jury, factor before the were not admissible 2C:ll-3c(2)(b). even under the relaxed rules of evidence. N.J.S.A. sustaining relevancy While not argument, State’s the trial photos through court found three five to be cumulative and therefore not admissible. Defendant now asserts that the trial ruling photos requires court’s on the penalty- a reversal of the phase verdict because mitigating the trial court excluded relevant evidence in rights. violation of defendant’s constitutional
We need not finding decide whether the trial court’s photographs through three five were cumulative was erroneous. *50 improperly- the court need not address whether trial
alsoWe admitting those by not mitigating relevant evidence excluded Any from the into error that resulted photographs evidence. exclud- photos of those was harmless. To the extent exclusion possibly conveyed impression photographs ed contends, they receiving love” capable giving and as he “was and photographs that were admitted were no different from obviously than certainly persuasive the vivid and were more family members displays of from the numerous genuine emotion feelings question love. whether to mutual “[T]he who testified depends finally degree upon reason reversal some an error is Macon, unjust possibility that it led to an verdict.” State v. (1971). photos The exclusion of these A.2d unjust possibility presented no real of an result. rulings argument find trial court’s
We also defendant’s strongly and in favor of on evidence were inconsistent biased to be without merit. mental B. Testimonial that defendant not have a evidence did County to Atlantic murder defense trial, penalty-phase At the defendant called Charles Jur man, attorney County murder trial. defendant’s from the Atlantic support thirty-two, presented mitigating Defense factor Jurman plead exchange for a guilty that “defendant offered the State examination, that de life sentence.” On direct Jurman testified offer, willing plea encompassing accept fendant was a tentative cases, County County Atlantic which both the Mercer (That life offer was would have resulted consecutive sentences. withdrawn.) subsequently also testified about defendant’s Jurman character, intelligent, explaining tempered that he was even prior the two cross-examina had no record before murders. On First, tion, important the State elicited two facts from Jurman. a mental testified that he did not believe that there was Jurman Second, County health defense to the Atlantic murder. Jurman that, reviewing presentence report with acknowledged after
357 client, accuracy his he presentence report affirmed the which defendant any history indicated that he did not have mental disease. argues
Defendant that the information solicited on cross-exami- nation scope was irrelevant and exceeded the of direct examina- Furthermore, tion. defendant asserts that even if the evidence factor, was relevant to mitigating prejudicial refute a effect of outweighed any probative the evidence value. Defendant claims denigrated that the evidence mitigating three of the defense’s factors, 2C:ll-3c(5)(a), e(5)(d), c(5)(h). N.J.S.A. Defendant testimony also claims that the believing misled the into because there County was no mental health defense to the Atlantic murder, any defendant could not have suffered emotional or mental disturbance at the time of the Finally, Marsh murder. provided defendant contends that by the instruction the court concerning testimony result, the use of the was insufficient. As a argues rights he was denied his constitutional to a fair trial, process, sentencing proceeding to due ato rehable under the State and Federal Constitutions.
Questions
admissibility
largely
of evidence are
within the
broad discretion of
McDougald, supra,
the trial court. See
577-78,
(citation omitted);
Sands,
N.J.
A.2d 419
State v.
(1978).
127, 144,
reviewing
Evidence is proba- admissible when it is relevant and when the outweighs prejudicial tive value of the evidence its effect. testimony clearly 403. N.J.R.E. Jurman’s was relevant. Jur- cross-examination, testimony, man’s supported elicited on argument sought plead guilty State’s that defendant to avoid a defense, prosecution for rebutting which there was no viable attempt willingness plead defense’s to use defendant’s as evi- committing dence of remorse for the murders. excluded, be it must relevant evidence to be
In order for
significantly
value is “so
probative
found that
the evidence’s
inherently inflammatory potential as to have
outweighed
[its]
jurors from a reason
the minds of the
probable capacity to divert
guilt or innocence.”
issue of
fair evaluation of the basic
able and
(1971).
396, 421,
Jur
283 A.2d
Thompson,
v.
59 N.J.
unduly prejudicial. Defendant’s concern
testimony
man’s
about the distinction between
was misled or confused
and the
prior
recent
murder
of a mental defense
the lack
*52
mitiga
could be considered as
impairment
of mental
evidence
First,
provided
the court
a
punishment without merit.
tion of
any
operated to eliminate
confu
limiting instruction that
sufficient
jurors.
immedi
The trial court’s
present in the minds of the
sion
a mental defense
that the lack of
ate instruction informed
County
irrelevant
to their delibera
the Atlantic
murder was
to
the mental
informed the
tions. That instruction also
necessary
mitigating factors did not rise to
to establish
state
Second,
repeatedly
legal
defense counsel
level of a
defense.
legal
defense
emphasized the
between mental state as
distinction
through its examination of defense
mitigating
and as a
factor
summation. There
psychiatrist,
Dougherty,
Dr.
counsel’s
fore,
limiting
ruling and the
instruction were
the trial court’s
justice
mark that a manifest denial of
resulted.”
“so wide of the
(1982).
Carter,
86, 106,
At no time did defense counsel instruction concerning that statement. that, “especially appeal
Defendant asserts for the first time on
behalf,
testify
quoting
since defendant did not
on his own
rebuttal,
proof
proper
these remarks into
transcended
transform-
ing
proof
(4)(g)[felony
aggrava-
the remarks into
murder]
Therefore,
ting factor.”
defendant asserts that the admission into
evidence,
instruction,
any limiting
without
of the statements made
Martinson,
prejudice
to Dr.
resulted in such undue
to defendant
required.
that a vacation of his death sentence is
psychiatrists
This Court has held that
retained
the State
*53
may interview defendants to
asserted mental
rebut
defenses.
Whitlow,
(1965).
3, 16,
State v.
45 N.J.
The absence of the
was harmless
Whitlow
overwhelming
presented
prove
There
to
error.
evidence
(that
during
c(4)(g)
the murder was committed
factor
aggravating
Indeed,
seriously questioned
robbery).
counsel never
defense
robbery. Because the lack of
had committed a
that defendant
of
no effect on the outcome
could have had
instruction
Whitlow
failure to
case,
decide whether the defendant’s
we need not
this
of that
could constitute a waiver
request a
instruction
Whitlow
Brown, supra,
rehabilitating if life is yourself spared____ guilt. You must not must not Mr. must not do, Loftin, deny your What you you argue You must truth of must not about the evidence. evidence, deny any you anything aggravating mitigating argue factors. You must not say about trial____ this or the You court, witnesses, your lawyers, about prosecutor, anything legality about or morality must not say capital punishment. might pursue if the remedies it defendant The court identified court-imposed The court also informed exceeded the boundaries. permitted to submit a written version of his that he was proper. that it was Defendant and allocution statement to ensure instructions, copy of the court’s his counsel received a written they accepted signed, confirming that understood and which both chose not to submit a written court’s instructions. Defendant statement. version of his allocution *54 statement, In his his conduct on allocution defendant blamed impact inequities, his execution would racial discussed the adverse family, presented his the with have on and commented on evidence result, factors. As trial held a respect mitigating to the court problem. to After conference to how best cure the sidebar discuss suggestion it rejecting permitted be to cross- the State’s defendant, potential the trial court and discussed examine counsel agreed counsel to an instruction curative instructions. Defense jury disregard the inform the that it should which court would impact his defendant said about the of the execution on what racism, family, aggrava- his on and his comments discussion Accordingly, ting mitigating presented and factors this case. trial court instructed as follows: juncture to and it is for the Court at this instruct Gentlemen, you Ladies necessary to instruct that some of his remarks with to Mi\ Loftin’s allocution and you respect right went outside the bounds of his to exercise allocution. right an of his of allocution to raise the one, Number it is not exercise appropriate right of his it issue of it falls outside of the bounds to racism, speak. Secondly, aggravating right to falls outside of his to discuss the the bounds speak and/or mitigating in this sides. factors that have been case both presented his as I instructed of his execution on have Finally, you impact repeatedly, mitigating not for his wife factor mother, children, his and his family proper disregard his racism, to and are to his comments about consider, only you you mitigating aggravating but [factors], comments with to the evidence of and respect that his execution would have his also impact upon family. allocution, permitted final on the court its instructions impacts Mr. Loftin insofar as it one or to “consider what stated subject factors, limiting mitigating the court’s more of to his statement.” Defense counsel instructions at the conclusion of objection relating limitation on the any not raise court’s did remedy or to the after defendant exceed- right of allocution court’s that he did court-imposed boundaries. Defendant contends ed the objects to the scope proper allocution and now not exceed right court’s on of allocution. trial restrictions his allocution, During permitted make a a defendant is to ascertain that he or statement in order allow brief “ capable feeling expressing remorse is an ‘individual she ” demonstrating hope the future.’ measure and of some *55 362 Zola, 384, (1988) 430,
State v.
112
(quoting
In asserting that the
imposed
substantive limitations
his allbcution
improper,
on
were
defendant misconstrues the na
right.
ture of that
statements
scope
Defendant’s
exceeded the
right
Zola,
of allocution
envisioned in
Defendant beyond permitted the allocution went portions However, the prejudicial. overly drastic and *56 was boundaries right the for an abuse of corrective action appropriate form of Zola, the trial court. discretion of is within the allocution comment might include corrective action supra, we indicated that cases, or, reopening the case prosecutor, in some by court or the trial court A.2d 1022. The Id. at cross-examination. portions of improper by striking the its discretion did not abuse instructions Nor the trial court’s were the allocution statement. confusing. inconsistent or statement regarding the allocution E. Outburst statement, the court his allocution defendant delivered
After attorneys judge nor the Neither the conference. called a sidebar later, a time. A few minutes observing jury at that were County Atlantic Murder daughter of the allegedly the spectator, at a Fetter, gallery and shouted from the Sophia rose victim —.” The you crying for? We are juror: the hell tearful “Who from the courtroom. and removed quickly quieted woman The attorneys to the outburst. reacted judge nor the Neither the statement, jury allocution on the simply instructed court did, jurors Apparently, to the outburst. making no reference sergeant-at-arms reported to the however, notice the outburst safety. their they concerned for were that jurors about directly address did not The trial court Instead, jury: told the the court outburst. being everything is get make sure that [T]hings the court would somewhat testy, regard. concern about And if have any you make feel secure every done to you to make here for is that’s what we’re know, let us because
that, know, you please go sure that feel secure and can about without you you your responsibilities feeling undue from any outside forces. pressure any jury days. recessed for four recess, During jury’s charge the trial court conducted a attorneys. conference with the Defense counsel moved for a outburst, mistrial arguing because of the that the had been prejudicially by influenced the incident. The court ruled that prejudice there was no requiring evidence of a mistrial. The court promised inquire any to whether individual felt unable proceed according specific juror to the law and whether the who crying ability had been perceive felt that her and evaluate the compromised. explained evidence had been The court that if the juror continue, believed that she could not she would be removed for cause. First,
Defense counsel raised two concerns. counsel ar gued any highlight comment made the court would prejudicial jurors. Second, outburst the minds of the defense was afraid that might the court focus the voir dire on the juror one who had been despite moved tears the court’s insistence that it any juror. would not focus on one Defense life, counsel believed that if might defendant had a chance for it be *57 juror. from this one emotional
Acknowledging
responsibility
that it had a
to address the con-
jurors,
cerns of the
jury:
the court addressed the
I’d like to ask
at this
as to
you,
time
whether or not
poll
have
any
you
anything, whether it was when we last
I
experienced
met,
believe it was Wednes-
anything
anything,
anything
afternoon ... Or
day
read
or saw
or
you
has
anything
that would
happened
affect
to continue to serve in
your ability
case,
this
at all?
Noting
juror
hands,
that no
raised their
the court moved on
giving
without
a curative instruction or further individualized voir
argues,
dire. Defense counsel
despite
prior
now
his
insistence
that no individualized voir dire be conducted or instruction be
given, that
the trial
inquire sufficiently
court failed to
whether
prejudice
dire,
resulted from the
A
probing
outburst.
more
voir
defendant,
necessary
asserts
was
if
determine
a mistrial should
that a
was
granted.
If the
determined
mistrial
have been
court
curative
necessary,
stronger
and more immediate
not
then
that
required.
was
also claims
the outburst
instruction
Defendant
likely that
impact
because it was
to victim
evidence
amounted
Finally,
jurors
identity
the
knew
of the woman
the courtroom.
court,
by
four
given
contends that the instruction
the
defendant
directly
incident,
days
the
it failed to
after
insufficient because
the
general
in nature. Based on
address the outburst
was too
outburst,
jurors,
the inade-
the
the reaction
the
nature of
court,
argues
prejudice
quate response of the
that
reversed.
presumed and defendant’s death sentence
should be
by
made
may
argue
inquiry
not
that the
counsel
now
Defense
insisted
sufficiently probing, when counsel
court was not
trial
or
making any
dire
from
individualized voir
that the court refrain
juror.
cannot
singling
any one
Defense counsel likewise
from
out
immediate
argue
given
court
have
more
now
should
instruction,
who
it
defense counsel
insisted
curative
when was
instruc
outburst with a
“highlight”
prejudicial
not
court
“except in the most
jury. This Court has held that
tion to the
cases,
by
will
strategic
made
defense counsel
extreme
decisions
I, appeal.” Marshall
grounds
for reversal on
present
Buonadonna,
93,
85;
122 N.J.
at
A.2d
State v.
123 N.J.
accord
471, 117
(1991);
22, 44,
Pontery,
v.
19 N.J.
The trial court
throughout
proceed
impartial
fan- and
that the
remain
I).
(1988)
(Bey
language detail
is within the discretion of
judge
equipped
the trial
has
“who
the feel
the case and is best
gquge
prejudicial
jury
to
the
of a
effect
comment on the
the
Winter,
640, 647,
setting.”
overall
State v.
96
“Not admission of or inadmissible other evidence Winter, can be to be considered reversible error.” 96 N.J. 646, States, 477 (quoting A.2d 323 Bruton v. 391 United U.S. 123, 135, (1968)). 1620, 1627, 476, 88 20 S.Ct. L.Ed.2d 484 In Smith, (6th 163, denied, Cir.1993), v. White 984 F.2d 166-67 cert. 920, (1993), 113 S.Ct. U.S. L.Ed.2d 273 the court remarked: communication “[Wlhere [a] is innocuous and initiated outburst, by spectator hearing in the form of an is not necessarily when, ease, required. particularly This is true in this up allaying the trial court jury, any follows with a statement to the apprehensions.” case, spectator this the brief outburst a courtroom operate unduly
did not
prejudice
jury against
defendant.
The outburst
momentary,
was
and the
immediately
woman was
quieted and
Despite
removed from the courtroom.
defendant’s
evidence,
impact
claim that the outburst amounted to victim
there
nothing
suggest
jury
identity
aware
spectator. Additionally, the outburst
no
contained
factual infor
State,
jury.
mation
could have influenced
v.
See Hunt
(1988)
(upholding capital
Md.
affected their charge continue. in its final to the jury, bias, the trial court preju- instructed that neither dice, sympathy any deliberations, nor play were to role their
367 mitigating factors. The except sympathy generated by the supra, Manley, 54 jury presumably these instructions. followed omitted). (citations any find that We N.J. at A.2d 193 resulting the was harmless error. prejudice from outburst family mitigating factor Hardship F. on as defendant’s refusing to allow argues that the trial court erred Defendant hardship on his execution jury the to consider the of defendant’s mitigating factors under the “catch-all” wife and children as 2C:11-3c(5)(h). factor, mitigating He claims N.J.S.A. factors, the trial court precluding considering from those the process rights right protected to be from his due and his violated punishment. cruel unusual progress, was in the penalty-phase the selection
While mitigating proposed to bar of defendant’s State moved three factors: his
27.
would be a
to
family.
Mr. Loftin’s execution
hardship
daughter,
be a
to his
old
28.
Loftin’s execution would
hardship
five-year
Mr.
Danielle.
son,
his
old
would be a
Jay.
29. Mr. Loftin’s execution
hardship
three-year
questioned
previously
appropriateness
not
the
The State had
factors,
jurors
qualified
the
and all
who had been
those
dire had
penalty-phase
of the
voir
first five and one-half weeks
among
mitigating factors were
informed that
those
been
factors,
striking
mitigating
three
presented.
In
factors to be
to either
the factors did
relate
the trial court noted that
record,
character,
of the offense.
or the circumstances
defendant’s
DiFrisco,
opinion in
ruling was our
for the trial court’s
basis
A.2d
In that ease the defendant
734.
factor
that his
mitigating
evidence
attempted to introduce as
mother,
hardship
his
would cause excessive emotional
execution
Even
court’s
on his wife and
of defendant’s execution
impact
consider
error, the error would have
mitigating factors was an
children as
harmless,
with a
presented
because defendant
been
directly
on his rela
evidence that
focused
multitude of character
allowed
and
Defendant was
tionship with his wife
children.
mitigating
“he has the love and
allege
prove as
factors that
and
(factor 30);
a considerate and
support
family”
his
that he “was
of
(factor 11);
siblings with a
“provided
that he
loving son”
and
12).
(factor
addition, defendant
positive
sense
direction”
presented testimony
positive
“shared
rela
alleged and
he
(factor 17);
“was
that he
tionship
wife and children”
with his
(factor 26);
employment
he
and that
“maintained
loving father”
(factor 17). The accumula
for wife
children”
provided
his
any
sufficient to cure
error
mitigating
tion
those
factors was
rejected mitigat
preclusion of the
might
have resulted due to
on
regarding
death
third
ing
impact
defendant’s
factors
*61
any
error was harmless.
parties,
we hold that
such
and therefore
mitigating
a
factor
likely
prison
in
as
would
die
G. Defendant
by ruling
court erred
that
that
the trial
Defendant contends
mitigating
factor
introduce as
catch-all
defendant could not
sentence,
therefore
already serving a
he
life
evidence that was
eligible
parole.
he
for
likely
prison
in
became
die
before
would
Supreme
light
in
States
that
the United
submits
Defendant
Carolina, 512 U.S.
v.
Simmons
South
in
Court’s recent decision
(1994),
trial
should
154,
2187,
court
114 S.Ct.
370 capital sentencing jury fully
A must be informed of its responsibility determining appropriateness death Carolina, supra, 304-05, Woodson v. North 428 U.S. at penalty. 2991, 557, Bey, 96 S.Ct. at 961; L.Ed.2d State v. 49 at 129 N.J. II, (1992) (Bey supra, III); Bey N.J. 610 A .2d at Ramseur, 162-63, supra: .2d 548 A 887. As we stated in jury range sentencing permitting To from the hide the full of its thus its options, decision to on be based uninformed and inaccurate is to mock possibly speculation, goals jurispru- modern death rationality consistency required penalty dence. [106 at 188.] N.J. 524 A.2d informing prior jurors Not about a sentence could lead to speculate capital might be than released earlier he otherwise would be. IV, Biegenwald supra, 126 N.J. at 172, however, 594 A.2d rejected attempt prior
we
a defendant’s
life
introduce his
sentences
mitigating
for murder under the catch-all
factor. “Be
sentencing
cause the
specific
determination is fact
and remains
subject
discretion,
significant
imposed
sentencer
the sentence
another case under
probative
different circumstances
little
has
sentencing decision.” Ibid. We deter
present jury’s
value to the
argument
mined that
eligible
that a defendant will never be
parole in
prior
his lifetime
due
sentences
its
should
on
presented
factor. Ibid. We reaffirmed that
mitigating
own be
as a
III,
Bey
supra, holding
600-01,
at
A.2d 814.
Nevertheless, although we
prior
found that a
life sentence
III,
Bey
presented
mitigating
should not be
as a
factor in
juries
held
in capital
we
that courts
cases should inform
about the
prior
request
defendant’s
sentences either on defendant’s
or when
Id. inquiry.
makes such an
814.
A.2d
However,
jurors
they
a court should also inform the
should
prior
not consider
impose
sentences in their decision to
a life or
*62
they
death
statutory aggravating
sentence because
are
or
not
mitigating
permit
factors. “To
pending
consideration of
sentences
prior
might
incongruous
for
crimes
lead to the
result that first-
to
than
likely
more
to be sentenced
death
be
offenders would
Finally,
instruct
the court should
repeat-offenders.”
Ibid.
would
to
solely
responsibility
determine
it is
the court’s
that
present case is to be served concurrent-
in the
whether
sentence
any prior
Ibid.
consecutively to
sentences.
ly or
IV,
Biegenwald
rulings
to
our
urges
Defendant
us
reconsider
Simmons,
III,
supra.
supra,
light of
that
Bey
supra,
case,
Supreme Court held that where
the United States
issue,
prohib
dangerousness is at
and state law
future
defendant’s
requires that the
parole,
process
due
release on
its
defendant’s
ineligible
parole.
is
for
sentencing jury be told that the defendant
2190,
at _,
Simmons,
at
129 L.Ed.2d
supra, 512 U.S.
S.Ct.
occasions,
asked the trial
separate
Simmons
at 138. On three
jury that
state
he
sentencing
under
law was
to inform the
court
to
such an
the court refused
issue
ineligible
parole;
each time
at _,
at
Although Justice
ineligibility,
parole
to instruct the
about
quires a trial court
J.,
(Handler,
dissenting),
425-26,
A .2d
741-42
post at
at
the due
in Simmons held that
Supreme
States
Court
United
judge
or defense counsel
requirement is met if either
process
jury.
parole ineligibility information to the
provides the relevant
_
at _,
Simmons,
114 S.Ct.
U.S.
See
(“[D]ue
requires
he be
plainly
process
L.Ed. 2d at 149-151
by way
argument
jury’s
attention
bring
it to
allowed
at _,
court.”);
from the
Id.
or an instruction
defense counsel
*63
(“[D]ue
process
requirement
S.Ct.
Nonetheless, cases, court, in future if the based on the presented evidence believes that there a realistic that is likelihood impose consecutively any it will a sentence to be served to sentences, prior in jury defendant’s return event does not sentence, a death should be so informed. We believe that in most eases the courts will that conclude there is a “realistic impose likelihood” that it will a consecutive sentence than a rather concurrent in the sentence event of a non-death Howev verdict. er, every necessarily court that In will reach conclusion. those cases, the court need not inform the whether a non-death likely sentence is to be consecutive or concurrent. case,
In give this failure such information was harmless error. repeatedly Defense counsel was allowed to inform the sentencing jury already that defendant had been to a sentenced thirty years life with parole ineligibility, term and that if was likely prison not sentenced to death would he die in fact, becoming eligible parole. summation, during before for In permitted defense counsel argue that life defendant’s spared be likely prison. should because he would die in What does a life sentence mean? Life means that the individual is sentenced to meaning for life, he must serve a minimum prison term of mandatory thirty years. saying gets eligible I’m not that a out after but that he is person thirty years, only for at the end of parole years. thirty jury, in Additionally, mind, [defendant] members that has keep been already serving convicted and is life with for thirty years without presently parole Atlantic conviction. The sentence murder run to the County may consecutive going [defendant] its safe to assume, folks, ones in Atlantic I think County. get going He is never out. for the rest of his natural life. to remain prison knowing it is murder, his conviction fact, purposeful by simply guaranteed who is [defendant] will die becomes only question prison. going or dies, to determine whether he God? you *64 dire, of counsel and the voir arguments jury was Through the the options,” including the “fully sentencing informed their about III, Bey supra, 129 N.J. at “effect a life sentence.” practical of 601, apply, any if Simmons A.2d even does error 610 814. Hence was harmless.2 e(5)(a) mitigating on factor
H.
Instructions
trial
instruc-
challenges
sufficiency
the
court’s
Defendant
c(5)(a).
pro-
respect
mitigating factor
That factor
tion with
to
of extreme mental
“The
was under the influence
vides:
defendant
to
constitute a defense
emotional disturbance insufficient to
or
2C:ll-3c(5)(a).
request-
prosecution.” N.J.S.A.
Defense counsel
in
jury
mitigating factor
the trial
instruct the
on the
ed that
court
jury
agreed
The trial court
to
conformity
charge.
with
model
the
specifically
mitigating
that
requested language,
the
“this
include
a
though
neither
may
present
be
even
the defendant had
factor
However, prior
charg-
to
disease
mental defect.”
[n]or [a]
mental
jury,
counsel that it had made
ing the
the trial court informed
jury charge and
the court
changes
minor
the model
that
some
charge
language
specifically
in
that
planned to omit the
the model
finding
is
jury
the
the
of a mental disease or defect
instructed
that
c(5)(a)
objected,
necessary
finding
the
factor. Defendant
charge.
planned
not to
On
trial court decided
alter
but the
argue
jury
2
was
to the
that
fact
that
counsel
permitted
defense
jail
under
Court’s
Supreme
defendant would die in
would clearly satisfy
Ginsburg,
standing
Justices
O’Con-
due
Justice
Chief
process.
Rehnquist
that
is satisfied if defendant’s
stated
due
nor, and Kennedy
process
explicitly
ineligibility. Simmons,
jury
informs the
counsel
about
possibility
parole
2200-2201,
at
Considering the trial entirety, court’s instruction in its we e(5)(a) find that the court’s instruction on the mitigating factor properly conveyed jury to the that it could conclude defendant suffered fi-om extreme mental disturbance even if it did not conclude that defendant suffered from a mental disease or defect. Indeed, specifically the trial court mentioned that “this mitigating by factor is showing established evidence that defendant was suffering from an extreme mental or emotional disturbance and that such disturbance influenced him to commit the murder.” The confusion, court then “agitation, defined disturbance as or violent change.” Although jury charge precise did not contain the language in jury charge, the model way instruction in no c(5)(a) suggested that the factor could not be found absent mental disease or defect. We also note explanation that defense counsel’s e(5)(a) of the mitigating during factor summation was consistent with the given. instruction
375
Unanimity mitigating
I.
on
factors
argues
improperly
that the trial court
instructed the
Defendant
agreement
jurors
they
attempt
should
to reach a unanimous
During
penalty phase, the court
mitigating
on the
factors.
unanimity
require
with
informed the
that the “law does
However,
mitigating
the court
respect
finding
to the
factors.”
factors,
added,
respect mitigating
to the extent reason-
“with
agreement regard-
ably possible, you
attempt
should
to reach an
particular mitigating factor does or does not exist.”
ing whether a
defendant,
conveyed
According
impres-
court’s comment
an
jurors
unanimity
some
who
preferred,
and thus
sion
mitigating
might initially
apply
inclined to
one of the
have been
may
changed
attempt
in an
to reach the
factors
have
their minds
unanimity.
claims that he is entitled
improper goal of
Defendant
unanimity
penalty phase,
the instruction on
to a new
because
returning a unanimous verdict.
might
have coerced the
into
require a
that a trial court cannot
It is black-letter law
Maryland, factors. Mills v.
finding mitigating
unanimous
Hunt,
v.
(1988);
U.S.
108 S.Ct.
J. Murder to avoid as an factor 1. Insufficient evidence submitting
Defendant contends that the trial court erred c(4)(f) aggravating factor to the there was insufficient because support jury finding evidence to that that factor existed. The c(4)(f) aggravating applies factor to those murders “committed for detection, trial, purpose escaping punishment apprehension, or confinement for another offense committed the defendant or 3c(4)(f). trial, another.” N.J.S.A. Prior to defense counsel 2C:11— c(4)(f). aggravating opposed moved to strike factor The State argued apparent motion and that there no for reason defen- except identity. denying to kill In dant Marsh to conceal his motion, defendant’s the trial court identified several factors as constituting sufficiently probative evidence to warrant the submis- e(4)(f) noted, jury. example, sion of the factor to the The court signs any significant struggle that there were no between the assailant, physical appear victim and his that the scene did not disturbed, unduly and that the mortal wound inflicted at close range suggested may opportunity that the victim have had the get good perpetrator. look at his case-in-chief, penalty-phase
At the end of the State’s defendant c(4)(f) factor, arguing moved for a directed on verdict presented support insufficient evidence to factor. particular, argued presented during that new evidence penalty phase, namely, wearing that defendant was a mask at
377 murder, extremely unlikely, that defendant made it the time of the Despite evidence Marsh to avoid future identification. killed motion, mask, finding that when the court denied the the the trial entirety, a reasonable could find viewed in its evidence was appeal, defendant aggravating factor. On the existence of the refuted, speculative, and is argues that the evidence was State’s nonconclusive. c(4)(f) defendant key finding factor is that the
“The to to his crimes.” Martini potential to eliminate a witness intended 281, supra, I, (citing Hightower, supra, 131 at 619 A.2d 99). 421, a Although the mere fact that at 577 A.2d 120 N.J. felony enough to invoke place in course of a is not killing takes factor, that it “[n]othing language of the factor indicates this solely for murders undertaken apply only to to those was meant I, supra, 131 N.J. eliminating a witness.” Martini purpose at 420- 1208; Hightower, supra, 120 N.J. accord 619 A.2d from produce ample evidence A.2d The State has 99. one of the conclude that at least a reasonable could which to avoid motivating killing was defendant’s desire purposes Hightow detection, crime. punishment for his apprehension, and omitted). (citation er, Because 577A.2d 99 supra, 120 N.J. at potential ehminate a intention to evidence of defendant’s direct may prosecutors, the establish rarely State witness is available evidence. circumstantial or direct motive with either defendant’s I, A.2d 1208. N.J. at Martini case, presented circum sufficient
In the instant jury’s finding of defen support that one stantial evidence the victim as killing Gary Marsh was to eliminate motives in dant’s drove robbery Exxon Defendant Station. a witness to his Bristol, Pennsylvania, passing hundreds from his home miles station located targets along way, to a secluded potential robbery. By Jersey Township, to commit New Lawreneeville home, possibility minimized the traveling defendant far from his identify him. Defen be able to any potential would witnesses suggests that fatigues further to wear a mask dant’s decision if defendant wore being identified. Even feared mask, might identify Marsh.still have been able to his assailant’s voice, height, addition, weight, and overall build. Marsh could color, make, car, have described the and model of defendant’s *68 Pennsylvania plates. to mention its license Further, defendant did not have to kill Marsh to effectuate the robbery. sign entry There was no of physical forced or of struggle inside or outside the office. Marsh was no more than a away few feet from defendant when he in was shot the head. He temple, suggesting was shot the facing that he was not defen- dant at the gunshot time the attack. Aside from the wound to head, bruises, cuts, the the victim was free of or defensive wounds. Defendant injury was also free of when he was arrested. No apparent purpose except served Marsh’s murder for escape punishment. defendant’s from detection and
Although
produced
support
the evidence
of factor
c(4)(f) was sufficient to
jury
submit that factor to the
and was
jury
sufficient for a rational
to conclude that at least one of
defendant’s
in murdering
intentions
Marsh
escape
was to
detec
apprehension
tion
robbery,
and
for the
we remind the State that
“the mere fact of death
enough
is not
to invoke this factor.”
Hightower,
supra,
Defendant
that even if there is sufficient evidence
e(4)(f) factor,
in the
support
record to
the
plain error was never-
adequately
it did not
by the trial court because
committed
theless
Specifically,
meaning
that factor.
jury
instruct
on
from
decision to deviate
that the trial court’s
defendant contends
Judges Bench Manual
charge provided in the
the model
for
proof.
burden
Capital Cases lowered
State’s
c(4)(f) factor,
that,
to find the
trial court instructed the
has
doubt
the State
produced
must
satisfied
a reasonable
be
you
beyond
that at
one of
could
conclude
least
evidence
which you
reasonably
sufficient
upon
against
killing
was to eliminate him as witness
Marsh
Gary
the purposes
to avoid his
arrest
prosecution
or for the Defendant
Defendant,
subsequent
or
robbery.
robbery
attempted
charge provided appears to instruct
Defendant submits that
applies
to whether
the reasonable doubt standard
draw a reasonable
from which one could
produced evidence
existence, rather than to
aggravating factor’s
about the
conclusion
actually existed.
aggravating
factor
whether
*69
instructions,
jury
passage
reviewing
In
claims of erroneous
charge
a
of the
as
in the context
question
in
should be evaluated
(1973)
After to the the court distributed sheet; any ambiguity concerning the verdict the State’s burden c(4)(f) proof respect by with to factor language was cured the clear contained in the verdict you sheet. The verdict sheet asked: “Do unanimously beyond any find a reasonable doubt that of the (1). following aggravating factors exists: The murder was com detection, purpose escaping trial, mitted for the apprehension, punishment or confinement for another offense committed defendant?” The verdict sheet contains a clear instruction that only applied standard to aggravating be to each circumstance II, is the reasonable doubt standard. See DiFrisco 489-92, N.J. (holding 645 A.2d language that clear potentially misleading verdict sheet cured nature of court’s charge). penalty phase jurors
K. Interview of day after defendant was sentenced to death the Trentonian featured an article in penalty-phase which one of the jurors quoted stating as that the sight never “lost *70 fact that family. the victim also had a obligation We had an to them also.” Pursuant to Rule 1:16-1, defense counsel moved for permission jurors to interview the improper to determine whether 1:16-1, tainted the verdict. Rule considerations had “Interviewing Trial,” Subsequent Jurors To states: granted good of court leave on cause shown Except by no or shall attorney party through investigator acting or other directly any for the person interview, attorney grand juror relating or with matter examine or any petit any question respect the case. family jury’s focus the victim’s The defense claims that on daughter by the result of the court room outburst County the motion Atlantic murder victim. The trial court denied jurisdiction already lack of because the defendant had based on Appeal. a Notice of Defense’s motion for a limited remand to filed by consider the motion was likewise denied this Court. jurors argues
Defendant that he was entitled to interview the impact they improperly weighed had victim discover whether rendering impose in their decision to the death considerations junc- penalty. that a remand at this Because defendant believes jurors pointless to recall what was ture would be as will be unable First, argues in December he that under the on their minds Sixth, correspond- Eighth, and Fourteenth Amendments and the Constitution, Jersey to a ing rights under the New he is entitled that, to the penalty Additionally, trial. defendant asserts new jurors, prevents interviewing him from extent that Rule 1:16-1 the rule is unconstitutional. jurors against privilege 1:16-1 “reaffirms the accorded
Rule
during
privi
of their communications
deliberations —a
disclosure
lege required in the interest of fair trial since ‘Freedom of debate
jurors
independence
thought
if
might
stifled and
checked
be
arguments
their
and ballots were to be
were made to feel that
Pressler,
freely
N.J.
published to the world.’”
Current
Court
(1996)
LaFera,
(quoting
v.
42 N.J.
Rules cmt. 1 on R. 1:16-1
106, 199 A.2d(1964)).
may
recognizes
That rule
that there
extraordinary
misconduct or the
be
circumstances
which
of extraneous information into the
deliberations
introduction
“
unjust
cause’ intended
brought about an
result.
Ibid.
‘Good
injected into the
the rule ...
is some event or occurrence that
capacity
prejudice
inheres.” Ibid.
deliberation
which the
(1955)).
Kociolek,
92, 100,
A.2d 812
(citing State v.
20 N.J.
I,
supra,
This
decision Koedatich
Court’s
I,
request-
controlling.
In Koedatich
A.2d 939 is
*71
interrogate jurors
relying exclusively
ed to
after his trial
on a
trial,
newspaper
printed
quoted
jurors
article
after the
some
having knowledge
as
of his
in an
involvement
unrelated murder.
Id. at
The Koedatich
exceptions
Court
two
rule.
First, post-verdict
may
“any
interviews
occur when
racial or
religious bigotry
may
manifested
deliberations
invalidate
Levitt,
(citing
verdict.” Ibid.
State v.
36 N.J.
This case the same circumstances. inAs Koedatich properly the trial court post-verdict juror denied the motion for single newspaper interviews that was based on a article. addition, defendant’s claim that Rule 1:16-1 is unconstitutional is Loftin, 108-09, N.J.Super. without merit. See . unconstitutional) (holding A.2d 557 that Rule 1:16-1 is not
V Penalty Combined Guilt and Phases Issues A. Admission of gun parapherna- defendant’s ammunition and
lia police wallet, ear, house, When searched defendant’s they significant gun paraphernalia. found a amount of Defendant rounds of kitchen closet that contained 500 had a box his *72 containing weapon, caliber a smaller box ammunition for a .380 bullets, making equipment materials used for twenty-six and and object Defendant did not to the admission one’s own ammunition. trial, claims that the trial court’s of that evidence at but now of the arsenal of bullets sponte to sua exclude the evidence failure plain make ammunition constitutes equipment and the used to phases. asserts guilt penalty and Defendant error both issue, if any relevant to but that even it that that evidence was not relevant, it it should have been excluded because showed propensity and to commit criminal acts. defendant’s bad character 1. Relevance may only at trial when it is rele
Evidence
be admitted
vant,
any
tendency
prove
disprove
or
fact of
“having a
reason to
401,
of the action.” N.J.R.E.
consequence to the determination
Davis,
(finding
402;
2. Probative value that,
Defendant further contends
if
even the evidence was
relevant,
sponte
it should have sua
been excluded because it
implied that defendant had bad
propensity
character and a
acts,
commit
probative
criminal
and its
value was therefore sub
stantially
403(a).
outweighed by
N.J.R.E.
prejudice.
the risk of
However,
argued
possession
State never
that defendant’s
illegal
the ammunition was
or that the ammunition indicated that
Loftin,
dangerous
defendant would
in the future. Accord
be
N.J.Super.
(approving
While the ammunition and
may
preju
have
defendant,
diced
“that evidence is
unsavory implica
shrouded with
significant part
tions is no reason for exclusion when it is a
Stevens,
(1989)
v.
proof.”
289, 308,
115
In even if the evidence should not have been admitted, the trial court’s decision to admit the ammunition evi dence would be harmless credulity error. It strains to believe cartridge reload- of 500 rounds of into evidence
that the admission prevented a fair consideration have ing equipment could already exposed to similar evidence, been had because penalty phase from de- evidence, testimony during the including The trial target shooting together. they wife that went fendant’s it admitted that evidence. its discretion when court did not abuse Prosecutorial misconduct B. justice duty prosecutor of a is to see primary
The
using improper meth
must refrain from
prosecutor
The
is done.
I,
See, e.g.,
just
Marshall
produce
a conviction.
ods calculated
Farrell,
99,
152,
85;
v.
61 N.J.
586 A.2d
State
supra, 123 N.J. at
(1972).
charges
prosecuto
104,
have held that
In
we
conviction,
requires reversal of a criminal
prosecutorial misconduct
so
whether “the conduct was
appellate
an
court should determine
Ramseur,
defendant of a fair trial.”
egregious
deprives
that it
(citing
Kelly,
v.
97 N.J.
387
II, supra,
II,
DiFrisco
474,
734;
137 N.J. at
Williams
645 A.2d
supra, 113 N.J. at
every
Defendant prosecutor made certain improper during comments deprived his summation that defen dant Although of a fair trial. object he did not to the State’s killing reference to the “execution-style as an murder” until after summation, the conclusion of penalty-phase defendant now complains prosecutor’s about the characterization of the murder as “execution-style an murder.” any Defendant asserts that shot from less than six inches gun powder; would have left thus the powder absence of execution-style indicates that this was not an killing. leeway” prosecutors view the “considerable have in devel
oping theory strong supports evidence that the State’s characterization “execution-style,” of the murder as we find defen supra dant’s claim to be without meiit. As discussed A .2d at defendant must have been between Marsh and the door, a distance of three feet. gun Whether defendant’s touching slightly Marsh’s head or was away, further we find nothing improper in the State’s killing characterization of this as an execution. complains
Defendant also the State told the speculate theorize, or but to follow the facts and all rational inferences from the complains facts. Defendant that this state denigrated ment the defense legitimately put “because the defense proofs by the State to its theorizing, based on the absence of evidence.” We find no misconduct in this statement and do not agree denigrated that it the defense. simply That statement told facts, Moreover, jury’s duty. evaluate the as is the *76 perfectly clear that reasonable charge
court’s to the made it the or the lack of evidence. may doubt arise from evidence summation, argued “there is no During the State that slayer____ know that the defendant evidence about a second We Two, the credit person himself other has all of cards.... and no beyond majority fifty-dollar the has the bill which the defendant proceeds.” points out that the never of the Defendant State cards, Marsh’s defendant had all of credit established that conclusively link the that the State was unable furthermore fifty-dollar gas that the bill found on defendant with stolen from misrepresentation that of the argues station. He that intentional facts warrants reversal. Pate, 785, Miller v. 386 U.S. 87 S.Ct. 17 L.Ed.2d
(1967),
knew
a stain on
defendant’s
prosecutor
the
that
the
paint
clothing
result of
told the court that
it was
was the
but
Supreme
held
the
blood. The United States
Court
that
Constitu
a state
conviction
tion “cannot tolerate
criminal
obtained
Id.,
knowing
at
use of false evidence.”
386 U.S.
87 S.Ct.
I, supra,
also
153-
Defendant complains impermissibly next the State proof shifted the burden of to the defense when it told the proofs that ‘‘there has been no dent made of the State.” Although interpreted shifting that comment could be as the bur disprove den to the defense to allegation, the State’s it seems likely more to have been intended as an observation strength of the State’s case. comprehen Given the trial court’s charge explaining innocence, presumption sive presumption proven guilt beyond remains until the has doubt, reasonable that defendant “has no burden to come forward evidence,” with one scintilla of that the burden is on the State never, shifts,” “and that burden ever we do not find that statement to have denied defendant a fair trial. *77 complains
Defendant also
that the
him
State characterized
a
depraved
Pennington,
as
“cold-hearted and
murder
[sic].”
577,
816,
supra,
disapproved
2. argues prosecu Defendant that there were several incidents of penalty phase. torial misconduct the As a result of those errors, defendant claims he is entitled to a reversal of his death First, alleges sought sentence. the State presentenee report prepared obtained the on defendant from the County Department notifying Atlantic Probation without first the objection report defense. Over defense’s that the was confi 1:38(b), report dential under Rule was admitted for the purpose of cross-examination of defendant’s wife and the defense psychiatric expert report. who had reviewed report are not
Although
presentence
the contents of a
1:38(b),
privileged.
report
is not
public consumption, Rule
party
obtaining the
may
a third
from
A defendant
not obstruct
for discov
through discovery
legitimate
trial need
report
when
Blue,
N.J.Super.
282-
ery
exists.
of its contents
(1973). Furthermore,
report
ultimate
would
Defendant also “execution-style” repeated characterization of the murder as inflamma- Defendant contends that the amounted to misconduct. satisfy plain standard to tory nature of the comments error discussed, supra at 680 A.2d at there Rule 2:10-2. As murder as no error in the characterization of the was State’s “execution-style.”
Defendant also contends that the State’s characterization
act,”
“cruel, inhumane,
encouraged
of the murder as a
senseless
aggravating
an
factor. Defendant did
to find
additional
However,
object
to the
characterization at trial.
not
State’s
court,
prosecutor
gone
sponte,
trial
sua
observed that the
had
cruel,”
alleging
but
as far as
that the murder was “heinous
perceive
might
concerned that the
that it should consider
aggravating
inhumane murder” as an extra
factor.
“cruel and
following curative
Consequently, the court issued the
instruction:
*78
aggravating
alleged
[Y]ou
Prosecutor,
are limited to the
factors
the
by
statutory
aggravating if
not consider
factors that
believe are
are not
they
and may
any
you
alleged aggravating
one of the three
factors
set forth
the
by
prosecu
specifically
which the Court will instruct
on
tion,
very shortly.
you
object
only
Defendant did not
to the instruction and
now claims
little,
jury
“too
too late.” That the
will
that the instruction was
presumed. Manley, supra, 54
given
follow the instructions
is
given by the court was
at
Defendant prosecutor’s also contends that some of the III, Bey supra, comments violated this Court’s directive 620-21, N.J. at prosecutor may 610A .2d that a not mischarac possible mitigating terize a factor as an excuse. The comments by prosecutor Bey III. made the did not amount to violation of (“what correctly The trial court comment distinguished the first factors”) mitigating defense counsel ‘call’ as different from charac terizing mitigating factors as The “excuses.” second comment factor”), (“anything may mitigating the defense claim is a objected by provided defense counsel and the trial court an Finally, although immediate curative instruction. no immediate concerning curative instruction the final followed comment (“in mitigating deciding general relevance of factors whether the information, murder, factor, apart mitigating you from the is a yourself should ask of what relevance this information? What crime.”), punishment does it have to do with for this the court jury disregard any instructed the comments of counsel that pronounced by Any were inconsistent with the law the court. prejudice was cured that instruction. Even if that instruction inadequate, prosecutor’s were egre statements were not “so Ramseur, gious” require 106 N.J. as to reversal. 524A.2d 188. complains prosecutor
Defendant implied also that the that personal knowledge regarding he had prior of facts Atlantic County murder of “jury Mrs. Fetter when he stated that the knew very only permitted little about the murder because the State was provide killing.” limited information about Defendant suggested that asserts those comments to the prosecutor regarding had additional information the murder that require imposed. would that a death sentence be alleges potential prejudice also was exacerbated as a daughter. result of the courtroom outburst of Mrs. Fetter’s De jury may fendant claims that the have known it was Mrs. Fetter’s daughter and therefore assumed that information prior signifi- lacked on the murder more was even emotional and *79 claims, to jury, defendant would lead the Those inferences cant. additional, to sen- important reasons there exists conclude that arguments speculative are to death. Defendant’s tence defendant mur- concerning the Fetter comments meritless. The State’s prosecutorial misconduct. did not amount to proper and der were improperly alleges prosecutor also that Defendant they if fail to convict jurors violate their oath implied that “the will sentence,” in the State when its summation return a death or road, they say easy you to take the argued: wants “[D]efendant prison, he’ll years get never out of get sixty and so he will he will question in the voir you, though, that prison. We asked die .,. a chance he you all that if there was process said dire your You swore that affect decision. prison die in wouldn’t would you promise----” that to that. I hold they if jurors violate their oaths implying that will “[R]emarks improper.” Pen sentence are convict or return a death fail to However, A.2d 816. nington, supra, 119 N.J. at convey that prosecutor in this case did comments made Instead, question to a asked message. those comments referred dire, possibility of consecu jurors in voir about whether to all judgment. court had affect their life sentences would tive appropriate an a consideration was not determined that such 372-73, Despite supra at 680 A .2dat 715. mitigating factor. See argue the defen ruling, was able to the court’s the defense prison if sentenced him to life. likely die in dant would Therefore, prosecutor for the to remind the it was reasonable sixty years parole potential of it should not consider the occurred. ineligibility mitigating factor. No misconduct as the State Finally, cites two instances which defense objectivity of defendant’s arguably disparaged the credentials and witnesses, Dougherty. and Dr. Edward expert Carmeta Albarus “a “purported” expert who was to Albarus as a The State referred telling story of coming court and us a trained student point of Refer mitigation specialist ... a view.” someone from prosecutor that the doctor was Dougherty, the stated ring to Dr. *80 of testifying of in the defense in the business professional “a weigh jury Dougherty’s to penalty phase and instructed the cases” regard in mind. That latter comment testimony with “bias” this However, rise Dougherty’s improper. was it did ing Dr. bias Moore, v. 122N.J. exemplified in impropriety level of to the (1991), 462, against 420, A.2d this Court cautioned where “a expert was prosecutorial to the effect that a defense comments duped professional bleeding heart who was the defendant.” conclusion, prosecutor’s at it be said that the remarks In cannot “incapable fairly jury as to it of so tainted the render issue case.” Williams persuasiveness of [assessing] the [defendant’s] II, 452, supra, 113 N.J. at A.2d 1172. Sufficiency concerning limiting instruction defendant’s of
C. for Marsh’s cards
arrest use of credit trial, videotape and guilt penalty phases of the At both the and pur- attempted for the evidence of defendant’s arrest testimonial murder, of chase, of worth days the Marsh $3000 four after present- card equipment Marsh’s credit computer with Sears objection jury. no to the introduction to the There was ed penalty phase, the the guilt phase the of the trial. At at evidence of objected, seeking preclude the introduction counsel to defense that the videotape. now contends introduction Defendant limiting guilt phase at without a instruction this evidence legal penalty phase inadequate an at the with its introduction plain error. constituted instruction phase
1. Guilt 404(b) provides:
N.J.R.E.
wrongs,
to
or acts
not admissible
prove
disposition
of other
crimes,
Evidence
therewith.
evidence
in order
that he acted in
Such
conformity
of a
to show
person
intent,
of motive,
such as
opportunity,
be admitted
other purposes,
proof
may
knowledge,
or
when such
or
of mistake
accident
absence
identity
plan,
preparation,
relevant
a material
issue
matters are
dispute.
Stevens,
recognized
supra,
A.2d
115 we
has a
“widespread agreement
that other-crime evidence
unique tendency
to turn
against
the defendant.” We
required
limiting
therefore
“a
explain
instruction ...
precisely
permitted
prohibited
evidence,”
purposes of
informing
that it could not infer from that evidence that a defendant
acted in
accordance with his “bad character.” Id. at
558 A.2d
I,
833.
But see Martini
As defendant evidence of the credit card use was relevant and guilt phase. admissible in the proved It defendant’s (because (greed) *81 identity motive and he could not have known employment about the victim’s with Exxon unless he had been at scene). However, the murder defendant contends that the trial court sponte should have sua limiting issued a pursu- instruction Stevens, supra, ant to warning the not to guilt infer of murder from attempted his credit-card use. Defendant claims that the court’s failure to issue an plain instruction constituted error. whether,
We need not
I,
consider
like the evidence in Martini
supra,
the
gestae
evidence here was
part
res
of the same
crime, because
unlikely
juror
“[i]t seems
to us that a
would have
sight
been so affected
the
engaging
in the act of
credit card fraud that she or he would have been moved to convict
defendant of the violent
Loftin,
crime of
supra,
murder.”
at
N.J.Super,
At the limiting in no insisted that again. The defense counsel duced any instruction concern that provided because of a be struction Despite de highlight other crimes. to defendant’s would serve penalty- court instructed objection, the trial counsel’s fense jury: phase give just jury, like to at this time you I would Ladies and Gentlemen
limiting from this witness subsequent You’ve heard the testimony instruction. with in connection was arrested Sears, the defendant to the events was disclosed you, theft. To the extent that testimony credit card fraud and charges was not elicited not —that the testimony additional are those establishing aggravating seeks to factors which the State the three purpose a reasonable doubt. establish with beyond proof seeking those which aggravating are factors that the State is prove The only opening, not the State in its you’re set forth to you by have been specifically charges as evidence support arrests on these additional consider these aggravating factors. charge to in its final those instructions court reiterated The trial jury. evidence of challenge into the admission Defendant does aggra relevant to crimes, the evidence was recognizing that those (murder in the course of c(4)(g) was committed vating factor despite its However, counsel contends that robbery). defense *82 instruction given, be limiting instruction that no insistence concerning crimes was insuffi phase those penalty provided at Stevens, 289, A.2d 833. supra, 115 N.J. cient under Stevens, should take that “trial courts supra, we observed ample comprehensively, with juries carefully and pains to instruct case, in a on and issues specific evidence reference to at 115 N.J. evidence.” relevance of other-crimes limited Rose, penalty that a Similarly, in we noted A .2d 833. weighing process, to add other in jury permitted, its phase “is not assigns to the weight it past to the conduct evidence of defendant’s factors, aggravating nor to consider other evidence of defendant’s conduct, past except to the mitigating extent offered to rebut factors, detracting weight assigns as from the it mitigating to the 507-08, factors.” 112 at 548A.2d 1058. case, limiting
In this
instruction was sufficient.
In its
instruction,
explained
the court
to the
the limited relevance of
evidence, advising
“you’re
them
not to consider these arrests
charges
support
on these additional
aggrava-
as evidence
Furthermore,
ting
again
factors.”
the trial court
instructed the
charge:
in its final
permitted
your weighing
“You are not
process
conduct,
past
to add evidence
except
of defendant’s
to the
mitigating
extent offered to
detracting
rebut
factors and as
from
weight you assign mitigating
factors.” That instruction was
Rose,
supra.
full conformance with
Finally, because it was defense counsel who insisted that
any
no instruction of
given,
kind be
he cannot now attack the
adequacy
charge
364-65,
Supra
issued.
VI Cumulative Effect of Errors find, do, argues Defendant that if we as we that none of the trial errors, alone, standing sentence, warrant reversal of his death then the sentence weight. cannot withstand their cumulative To gether, argues, the trial court errors contributed to his sentence, making constitutionally death it unreliable. See State v. Orecchio, (1954) 125, 129, 16 N.J. (noting 106A.2d 541 that where “legal ... aggregate unfair, errors in their have rendered the trial our fundamental concepts granting constitutional dictate the of a impartial new trial jury”). before an
397 I, 169, 123 at 586 As noted in Marshall N.J. we A.2d vigorously and consistently fact are contested, cases capital protracted, legal that in the of each and issues assures course virtually subtle difficult implicate judges, Trial unlike and will be appellate trial some errors apparent. imperfections rulings judges, without their in the heat of trial, opportunity make conscientious trial not even most and review, deliberative experienced
judges can be perfect. perfect not one.” to a fair trial but a “A defendant is entitled States, 604, 619, 490, 97 73 v. 344 U.S. S.Ct. Lutwak United (1953). cases, capital where we That is even in L.Ed. true “ scrutiny,’ a ‘subject recognizing that defen record to intense I, supra, very at at dant’s life is stake.” Marshall 92-93, I, A.2d Bey supra, 112 N.J. (quoting A.2d 85 846). identified carefully each of errors
We have reviewed satisfied, in the context of opinion. of this are in the course We guilt, overwhelming evidence defendant’s produced trial that clearly capable of of those errors was combined effect affecting or his sentences. either defendant’s convictions
VII Proportionality Review Act, Capital Punishment N.J.S.A. 2C:11- As authorized whether his “sen- 3e, requested has that we determine cases, penalty imposed in similar disproportionate to the tence Review defen- the crime and the defendant.” considering both briefing pursuant sentence shall be undertaken dant’s by the Clerk Court argument to be established schedule consultation with counsel. after
VIII
Conclusion murder and his sentence summary, conviction for In defendant’s addition, for the defendant’s convictions of death are affirmed. are affirmed. related offenses
Finally, request defendant’s for ac- proportionality review is knowledged proceed and according briefing the matter will to a argument and schedule to be Clerk established of this Court.
HANDLER, J., dissenting. capital-murder prosecution This rife with errors that strike system at the of our capital punishment. core of The errors serve procedures undermine the fundamental the Court has determined to painstakingly be essential and has established as imposition By the constitutional of a death sentence. basis minimizing disregarding errors, these the Court sanctions imposition any continued of death sentences unmoored firm anchor. It retrenches its constitutional on commitment to a system guard against arbitrary strives and discrimina- tory imposition penalty. of the death
I This case demonstrates with a clarity, shameful this Court’s acquiescence in undisciplined the unbounded and use of a recur- rent aggravating factor —a apprehension. murder to avoid It thereby common-place, tragic, converts capi- albeit homicides into By bestowing tal interpretation murder. such an overbroad on factor, 2C:ll-3c(4)(f) (“c(4)(f)”) (murder aggravating this N.J.S.A offense) apprehension here, to escape for another where the State offered no purpose, substantive evidence defendant’s the Court ignores limiting its own established and principled standards designed to screen out truly deathworthy. murders that are
I repeatedly c(4)(f) dangers expanding have written of the 239, Hightower, 280-94, factor. State v. 146 N.J. 680 A.2d (1996) II) (Handler, J., (Hightower dissenting); 669-76 v. State Hightower, 434-38, (1990) I) 120 (Hightower N.J. A.2d (Handler, J., dissenting). present compellingly The case confirms e(4)(f) interpretation that the Court’s of the factor an condones application of that Jersey factor that violates federal and New reasonably justify imposition failing “to constitutions on penalty” a defendant. death factor, wanton, aggravating 2C:11- to the vile N.J.S.A.
Similar
c(4)(f)
3c(4)(c),
facially, unconstitutionally broad. See
factor is
II,
286-88,
146 N.J.
Now,
completely
requirement
Court
abandons the
that the
c(4)(f)
e(4)(g)
and
factors each must cover some situation not
by
Indeed,
c(4)(g)
covered
the other.
“the
has
factor
evolved into
c(4)(f) factor,
completely
every
contained subset of the
such that
c(4)(f)
II,
c(4)(g)
also a
Hightower
case is
case.” See
(Handler, J., dissenting).
Though
A.
appallingly
It
obvious that
the State
failed
introduce
evidence
which
rationally
beyond
from
could
conclude
c(4)(f)
Indeed,
reasonable doubt that the
factor existed.
the Court
point
specific
can
pre-murder
to no
of a
evidence
formation
*86
felony.
intent to eliminate a
some underlying
witness to
Defen
confessing
dant made no statement
that the
for the
reason
murder
II,
escape
was to
detection.
v.
State
137
DiFrisco
N.J.
Cf.
(1994) (DiFrisco
500-02,
II)
(noting
Not is there absence apprehen- intent avoid to demonstrate to ly relied on this Court rely sion, the Court does indicate but on which the circumstances rob, intent to avoid kill an only an or intent intent the most finds apprehension. the Court evidence Because case, the clear and sufficient in this generalized nature to be an ruling is evidence of inescapable import of the Court’s ambiguous, vague, how apprehension, no matter intent avoid virtually any felony tenuous, gleaned from easily be will *87 hard-pressed envisage felony murder. a in One is murder c(4)(f) which the State be to use the factor. will unable 1.
Examples are at hand. the The hollowness of Court’s standard sufficiency flagrantly exposed the of evidence is when the c(4)(f) arguments in supporting State’s the factor this and in case Hightower, together.1 Hightower, argued are viewed the State c(4)(f) supported by that the factor fact was that defendant daylight. a in robbed local convenience store broad The fact that implied the store was local there that would be an increased recognize likelihood that someone would defendant. The fact that robbery it was convenience store and the occurred daytime implied that defendant would be aware that there was a strong potential for traffic he customer therefore had to quiet keep potential eliminate the witness to her and avoid the the clerk might passerby. that draw the attention of a The State argued Hightower’s a disguise also failure to wear made the necessary elimination of the witness all the more it because increased the likelihood and ease identification.
Here,
c(4)(f)
argues
supported
now
State
factor is
gas
fact
planned
that defendant
to rob a
station that was
local,
planned
pre-
and further
to commit the offense in the
no
dawn hours when
one
The
was on
road.
further
finds
argument
support for its
in the fact
that defendant wore a
disguise.
Hightower
exposure
it
While
was the actual
of the
"
c(4)(f)
frequent
State's
resort to the
factor has
similar
'chameleon-
”
way
adapting
any particular
profiles
drug
like
set of [facts]' similar to the
Sokolow,
challenged in United
v.
S.Ct.
States
U.S. 109
L.Ed.2d
(1989),
Supreme
application
where the
United States
Court noted
various
profiles.
proffered
suspect
The characteristics
cases
various
included:
middle,
tickets,
deplane,
deplaned
deplane,
one-way
first to
last
from the
tickets,
round-trip
nonstop flight, changed planes,
luggage, gym bag,
no
new
suitcases,
alone,
companion,
nervously,
traveled
traveled with
acted
acted
13-14,
1588-89,
calmly.
(Marshall,
too
Id. at
We need in which this unprincipled manner observe the standardless granted unlimited by if such pursued the State factor will be motion to pre-trial opposition to the defense’s discretion. c(4)(f) factor, factor could be argued that the dismiss Mr. to show that no evidence “there will be established because identification____” Therefore, the State had concealed his Loftin “to contended, the murder was only possible reason for Nevertheless, at identity the armed robber.” as [Loftin’s] conceal argu- prosecutor’s for the significant basis penalty phase, that defen- testified two State’s witnesses ment was refuted when Though the murder. wearing at the time of a mask dant was of effort that the lack guilt-phase argument to abandon its forced murder to the intent to identity proved defendant’s to conceal per- The State was undaunted. escape apprehension, the State arguing phase, penalty in the complete about-face formed a intent to avoid identity proved defendant’s to conceal his the effort apprehension. argument without inconsistent majority accepts the State’s
The factor in this justify of the attempts its affirmance question and to intent to rob evidence of by pointing vague, emotive case apprehension. to avoid of an intent to kill as indicative intent evidence, plausible however, any or fails, identify majority evidence, escape It resorts detection. of intent inferences from robbery and into the planning that went instead to evidence kill as apparent motive to any other record of the absence support for the conclusion that defendant intended to murder to 377-78, avoid future Ante apprehension. identification and Ultimately, A.2d at 717-18. majority facts relied on speculative. are attenuated and
Furthermore,
assertions,
contrary
stronger
to the State’s
inferences are that
reasonably
defendant would not
have been
gas
concerned about the
station
identifying
attendant
through
plastic mask, army fatigues,
gun
his
or
holster. There is
additionally no reason to believe defendant feared Marsh would
*89
by
track defendant down
defendant’s shoes or his car. Ante at
378,
Indeed,
Nor is prior experience guns defendant’s with or his use of a gun during robbery indicative of intent to eliminate a witness apprehension. avoid recognized This Court has that the use of gun permissible a loaded creates a inference of intent to kill or to I, E.g., serious-bodily injury. commit Martini 131 N.J. Thomas, 271, State v. (quoting 619A.2d 76 N.J. 344, 387 A.2d Bucanis, (1978)); v. 26 cert. 138 A.2d denied, (1958). 357 U.S. 78 S.Ct. 2 L.Ed.2d However, that inference has not been extended to an intent to eliminate a witness to avoid detection. If the latter inference former, arose impermissible whenever did the duplication this proscribed event, Court any would occur. In gun the use of a does not intent indicate to avoid detection because the noise from gun actually potential shot has the to attract attention. The absence of a gun silencer on defendant’s in the face flies planner with an a serious argument that defendant was State’s avoiding acting a firm intent of knowledge guns, out extensive apprehension.2 robbery will sum, carefully plan their than
In more robbers will avoiding prosecu- purpose of a witness for the intend to eliminate gun, his use of the experience with a Similarly, defendant’s tion. wound, intent to suggesting an of the while gun, and the location kill, why that intent exists. any information as to provide do c(4)(f) factor majority attempts support also any motive supporting additional arguing there is no evidence about is no evidence what killing The fact is that there Marsh. side of the shot actually trigger. off that Marsh was did set gun response to Marsh may raised his Defendant have head. his raised away, may have turned as defendant turning or Marsh reaching for a was may thought have Marsh gun. Defendant Or, searching for one. Marsh may weapon and Marsh have been sum, defendant, it inciting thé act. something may have said motive, any other evidence about only that there is a lack of is not happened at all. any as to what a lack of evidence but there is Moreover, argument that Marsh the basis State’s *90 by any supported is not incite defendant cooperative and did not Though Marsh struggle. except lack of evidence evidence weapon, had access to a defensive may not have was unarmed and Further, Marsh was fact. not aware of this defendant was defendant. have his back to and did not standing when shot especially vulnerable Marsh was an no evidence that There is to limit argued in the head in order defendant fired once The State that only argument of the gunfire. of the State's The tenuous nature the noise of the —and argument general when one considers the of this evidence in apparent nature —is gun avoid or apprehension a on a would not establish purpose that silencer a because would have the same committed with a knife purpose murder every (Fla.1979). gun. State, So.2d v. knife is than a Menendez quieter more time not have been expensive, or third shot would also, second Clearly, was dead. ensured that Marsh and would have
position and no affirmative that evidence Marsh did not act to provoke the attack. majority support
The appre- also finds for the intent to avoid by arguing hension range. defendant shot Marsh at close highly equivocal speak That fact not does defendant’s motive. range kill, may argue A close shot an intent to but is silent as underlying co motive.
Moreover, it is not at all clear that the shot was fired at close range. majority draws this conclusion from a number of facts. Because the room parties was so small—13'5" 9'7" —the close, However, standing necessity. were police out of found lying office; Marsh on his lay back the station Marsh’s head three feet nearly from the door and his feet were nine feet from Thus, logical the door. standing deduction is that Marsh was office; spent well inside the shell near Marsh’s head does not prove expert otherwise. The State’s ballistics testified that the casing could be away thrown between two and ten feet from the gun if it any did not hit prove obstructions. The evidence does not very Marsh was shot from a range, certainly close and thus point majority suggests, blank. As the defendant was stand- ing between the door and easily Marsh —defendant could have standing been at the pulled trigger. door when he
C. c(4)(f) support The evidence offered of the aggravating factor truly thus boils down to the apparent fact that there is no other light motive for the murder. prove State’s burden to beyond factor a reasonable doubt aggravating and defendant’s Fifth right Amendment present any to remain silent and not evidence, argument that defendant has not demonstrated potential another motive is not sufficient to sustain submission jury. factor to the Although the strong State has made a case for an intent to rob identifiable, being without that does not argument advance the killing that the was based on that recog- intent. As the Court *91 nizes, attempt all If the robbers will avoid future identification. and, majority relies on the fact that defendant was careful in the planning, robbery, during made efforts to avoid identification the Hightower unjustifiable. then the decision in Court’s is aggravating applicable an Where factor is to antithetic scenar- ios, serving purpose it is clear that the factor is not the narrowing distinguishing the class of defendants or the more blameworthy Although repeats defendants. the Court its conclu- detection,” “every escape sion that murder -willnot abe murder to suggest why Every story the Court does not is so. aof during murder committed the course of crime will contain a background generic argument factual from which to harvest a Rather, aggravating any factor. if the factor this is to have function, limiting channeling the Court must demand more specific supporting evidence the contention that a direct State’s motivating purposes escape for the act of murder was intent to c(4)(f) presently applied, clearly detection.- As the factor violates imposed by Eighth the constitutional limitations Amendment. beyond question proportionality Our review studies demonstrate e(4)(f) deadly factor can on effect the use of have imposed. frequency with which the death sentence will be consequences expansion of the of this factor are dramatic —and capital punishment tragic. c(4)(g) felony the context of When alone, charged any aggravating murder factor without is other factor, However, sentencing percent. rate 9.5 of death c(4)(f) charged along c(4)(g) when the factor is with the factor the imposition percent higher rate of death sentence is 11.9 —more Thus, by c(4)(g) present.3 than double—than when is alone c(4)(f) sanctioning charge factor all cases which the raised, demanding c(4)(g) specific factor is without more evidence detection, purpose escaping of intent to murder for the c(4)(f) 3This statistic includes those cases in which was found to be as present c(4)(f) charged urged well as those where notice of was served and to the or on the court but was not found to be present. *92 inevitable, high and, indeed, very risk of a renders invites Court sentencing. arbitrary capricious death and circumstances, specifically the and totality of the Because the know the victim mask and did not wore a fact that defendant a motive to would not have suggest that defendant personally, I from the apprehension, dissent to avoid eliminate a witness c(4)(f) factor in this application affirmance of the Court’s ease.
II prior murder prosecution this with Loftin comes to Donald formed the basis of prior murder conviction conviction. That 2C:11-3c(4)(a), and could be used aggravating factor N.J.S.A. imposing the penalty phase as a basis for jury during the the juries are previously held that two penalty. This death Court the intends necessary capital prosecution in which State in a aggravating an prior-murder conviction as the defendant’s use 1, 43-44, A.2d 172 Biegenwald, v. 126 N.J. factor. State IV). (1991) ruling is underlying that (Biegenwald The rationale ordinarily at the is not admissible prior that the murder conviction trial, jury nonetheless guilt-phase the would guilt phase of the but process to the existence during death-qualification exposed the be Ibid. In prior-murder aggravating factor. potential use of the and prior murder conviction recognition that a light of the Court’s impact” jury weighing a defendant’s “blinding on a would have juries, empaneled separate two one for guilt, court here the trial penalty phase. the guilt phase and one for the penalty jury during the guilt-phase would not sit Because the trial, “death-qualify” court did not phase the trial of defendant’s the extensive individual guilt-jury, the court conduct nor did repeatedly jurors this has of those Court ized voir dire Williams, E.g., v. 113 N.J. required penalty cases. death (1988) (Williams II). short, the trial A.2d 1172 jury empaneled jury if it were a guilt-phase as court treated non-capital prosecution. guilt in a only criminal to determine majority, I find the in the trial court’s failure error Unlike guilt-phase for the death- qualify prepare properly called on to make to be fundamental potential decision it was reversible, though it did not fix the Even and non-waivable. apprised of guilt-phase jury should have been penalty, ultimate consequences of its decision because life-and-death responsible capital prosecution trial of this bifurcated *93 requirement finding eligibility. The that the critical of death responsible for its verdict jury fully informed and be be is not appreciation and of ramifications through an awareness Furthermore, guilt phase jury the voir dire of the was waivable. only grossly over-general- it was not utterly insufficient because and, unfocused, under oath it not individualized or ized and l:8-3(a). therefore, violated Rule
A.
jury that this was a
deciding
guilt-phase
In
not to inform
jury, the trial
death-qualifying the
death-penalty case and in not
Erazo,
112,
126 N.J.
in State v.
court relied on our decisions
IV,
(1991),
594 A.2d
Biegenwald
supra, 126 N.J.
and
A.2d 232
IV,
in
circum
suggested that
certain
Biegenwald
we
172.
penalty
stances,
guilt
in
or the
that is admitted
either
evidence
juries
phase
that two
prejudicial
the other
phase would be so
Erazo,
43-44,
A
172. In
necessary.
at
594 .2d
126 N.J.
would be
that an attendant benefit
suggested
dicta
we went further
phase is that it “would
separate jury
penalty
for the
having
of
guilt-phase jury.” 126 N.J. at
qualification of the
death
obviate
330, 396-99,
Hunt,
132-33,
(citing
v.
115 N.J.
sentencing scheme.
repeatedly
On the one
has
Court
recognized
“[i]n
no other determination in the criminal law is
important
aware,
it
absolutely
more
to make
certain the
actions,
simply
consequences
of its
but
its total
responsibility
Ramseur,
judgment.”
for the
supra, 106
Indeed,
316-17
n.&
On the other
there
support
argu
is considerable
for the
death-qualification
juries
ment
that
guilt-phase
renders
more
prone
402,
to
Kentucky,
convict. See Buchanan v.
483 U.S.
415 n.
16,
2906,
16,
(1987)
336,
107 S.Ct.
2913 n.
97 L.Ed.2d
350 n. 16
(assuming that
methodologically
“studies were ‘both
valid and
adequate
qualification”
to
produces
establish
“death
in fact
juries
“conviction-prone”
somewhat more
“non-death-quali
than
”)
juries’
McCree,
(quoting
162, 173, 106
fied”
Lockhart v.
476 U.S.
McCree,
137,
(1986));
1758, 1764,
supra, 476
90 L.Ed.2d
S.Ct.
(Marshall, J.,
at
The tension the two interests —the between jury fully jury right to a impartial guilt-phase demon consequences of its decision—further informed of the unworkability death-penalty scheme. The of the strates mandating a restricted compromise present in the Court’s case— high yet making requirement death-qualification waivable — (“[I]f Ante at 680A.2d at 697 defense lights problem. See death-qualification guilt-phase of the objects counsel objection such an to be a waiver ... a trial court shall deem guilt-phase. in the death-qualified right defendant’s counsel], [objection by However, any defense the absence severely jurors a restricted death give guilt-phase trial courts will prior informing them of defendant’s qualification, specifically not murder.”). conviction for *95 that the death majority’s recommendation
I concur with double-jury capital trial jury in a qualification guilt-phase of a 412 expansive provided penalty-phase
need be as as that for the Indeed, jury. only jurors concern will whether those can be lawfully responsibility determining guilt, fulfill their in with knowledge may permit group that their determination another jurors penalty. to find that the defendant deserves the death errs, however, majority finding pre-
The
that defendant is
raising
appeal
contrary
cluded from
this
on
issue
because of the
right
stance he took at trial. Defendant cannot waive his
to a fair
impartial jury
capable
rendering
is informed and
a
Moreover,
responsible verdict.
it is clear that neither the defense
anticipated
ruling Mejia.
nor the trial court
this Court’s
majority
wrong
equate
is
this situation
with that
I,
93,
85,
Marshall
N.J.
586 A.2d where we reviewed
the voir dire under the standard for invited error
trial
because
336,
requested
death-qualification.
counsel
a limited
Ante at
prejudice resulting
A.2d at 696. The
from the failure to inform
jury
consequences
beyond
of its verdict extends far
prejudice resulting
death-qualification
from the limited
in Mar
shall. At
rights
issue here is one of defendant’s fundamental
—a
right
to an
repeatedly
accurate
instruction. We have
noted
sponte obligation
provide
that trial courts have a sua
correct
Robinson,
charges.
476, 489,
State v.
136 N.J.
The
of the waiver
Court’s
irrec
attempt
the
to reconcile the
possibly understood as
Court’s
death-qualifica
inescapable potential that
oncilable—the real and
prone
impera
constitutional
renders a
conviction
and the
tion
only by a
capital guilt
punishment
and
can be determined
tive that
Indeed,
majority recognizes
poten
death-qualified jury.
oppose
today
finding
that defense counsel’s decision to
tial
strategic
guilt-phase jury
“a sound
death-qualification of the
I,
697;
A
at
see also Marshall
decision.” Ante at
.2d
(Handler, J.,
dissenting)
supra, 123
at
Nor was the failure to inform the
that it was
capital
deciding a
case harmless. There was a rational basis on
finding
less than
the record
that defendant had a mental state
(O’Hern, J.,
to kill. Post
*97
an intent
Thus, Mejia requires that defendant’s death sentence be re death-eligible, The fact that defendant on a versed. became based by jury entirely legal decision made a that was unaware of the actions, deprived rights of to Due effect of its his Process, trial, a fair and freedom from cruel and unusual VIII, VI, XIV; punishment. U.S. Const. Amends. N.J. Const. ¶¶I, 1, 10, 12. art.
B.
voir dire violated
employed
procedure
guilt-phase
The
for the
l:8-3(a)
of Rule
that the voir dire of
requirement
jurors
both the
oath,
individually
in
cases be
death
conducted
and under
and our
recognition
heightened
juror impartiality
capital
of a
need for
Williams,
39,
(1983)
v.
61,
State
N.J.
cases.
93
Moreover, the circumstances of this of case—the murder working person by unemployed white class an African-Ameri- obligated scrupulous searching the court to conduct a and can— juror potential prejudices. Shockingly, review of than rather expanding scope inquiry, only lightly the trial court subject cursory questioning touched on the of racial bias. Its provided insight feelings potential no into the and attitudes of jurors; the voir dire provided absolutely guidance no to the court jurors judging impartiality quality or counsel in intelligently exercising peremptory challenges. The and cause deficient voir dire does not even conform to our standards for non- capital cases.
415
right
impartial
guaranteed by
to an
is
the Sixth
Amendment of the Federal
as well as
the New
Constitution
I,
60-61,
supra,
Constitution. Williams
93 N.J. at
Jersey
459
impartial jury
ensuring
A.2d 641. An
essential
defendant’s
right
requirement
particu
to a fair trial. “This
of fairness —and
larly jury impartiality
heightened in
cases which the defen
—is
641; Ramseur, supra,
dant faces death.” Id. at
459 A.2d
(1987).
N.J. at 324 n.
Recognizing
difficulty
There is no reason to relax these rules when two
are used
Moore,
State v.
just
of
In
instead
one.
Nor do the rules the selection of for a relaxation of the voir dire provide requirements cases when juries guilt-phase Arguing two are used. a distinction between a double-jury capital jury in trial and a in a trial of a crime l:8-3(a) death, majority a basis
punishable for
cites Rule
as
thorough
comprehensive voir dire
abandoning
the more
338-40,
guilt phase
capital double-jury trial. Ante at
for the
of a
1:8-3(a) provides for a less extensive
name is and under oath. drawn, l:8-3(a) added).] (emphasis
[R.
undeniably
“punishable by
Defendant was
tried for a crime
rule,
language
plain
death.” Under the
of the
defendant’s
subjected
should have been
to an individualized voir dire. The
majority
requiring
“[a]t
asserts that in
individual voir dire
trials of
death,”
punishable by
crimes
the authors of the Rule intended for
exclusively
apply
penalty
the individualized voir dire to
to the
phase
capital
cases. Ante at
insufficient to ensure defendant’s
to a fair and
cases,
non-capital
require
probing
Even in
an extensive and
we
dangerously pervades
race
the case.
voir dire when the issue of
*99
infecting
possibility
impermissible
To avoid the
considerations
verdict,
duty
tainting
deliberations and
a trial court has a
juror
duty
height-
explore potential
prejudice
to
and bias. That
is
ened in cases
Horcey,
with overt racial overtones. State v.
N.J.Super.
(App.Div.1993)
629A.2d 1367
(holding that counsel
may directly
prejudice
raise the issue of racism or
during voir dire
case);
clearly present
when issue is
in
Murray,
see Turner v.
(1986); Moore,
476 U.S.
106 S.Ct.
L.Ed.2d 27
(noting
N.J. at
searching
On the first of the voir panel the trial court did ask the jurors prospective they by whether would be influenced the fact that defendant was African-American and the victim was white. Specifically, the court stated: gentlemen, Ladies and as can Mr. Loftin is an see, African-American. you alleged victim in this Mr. matter, Marsh, white. Would the fact is an African-American the deceased this matter is would white,
that affect an mind about this case and make a decision your ability keep open on based the evidence rather than the racial of the defendant and the makeup raising deceased in this If so, matter? indicate hand. please your *100 The trial court continued no hands were raised. surprisingly, Not questioning on the issue. any further individualized without to Though that members were free panel the court instructed the inconspicuous juncture, at an raise issues sidebar at controversial directly proceeded from day on the first of the voir dire the court posed panel questioning single question to the to a the racial bias Therefore, hardship larger jury pool concerning issues. jurors to panel opportunity of on the had none the sixteen later, question in order raise their hands to less controversial potential to court racial privately inform the about biases. prejudice on and The court revisited the issue of the second dire, day stating: final of voir prejudice, deciding in without without are, bias, But what the facts are to do so you going favor and I’m talk a little bit kind, without or of sympathy, passion any prejudice, of when we the word bias us, more about bias and because for most hear get prejudice, we we want and we hear the word defensive because don’t anybody being prejudiced. think or that’s I that accuse of And ask why question in this an African- I out to that the defendant case is yesterday. pointed you and I white, American that the victim this matter is asked would any you and no. make a in this case based on racial and all answered you decision make-up, provided example very critical simplistic The court then Indeed, imparting jurors. by equating responsibility it was to the only sports of a the court racial bias to the bias fan trivialized Thus, judge racial the trial ex- concerns over discrimination. referring strong plained feelings own about the bias her admittedly express Cowboys Dallas and her irrational instinct to by penalizing attorneys do not share her football those biases who recognized people preferences. The court also that do biases; openly admitting generally admit to instead of the bias The court people silently feelings. act out their then instructed against against the not to act court, Jersey, conspicu- at New but to come forward to the a less time, you any you bias that could affect ous “if believe have your ability impartial.” to be fair and cursory hardly expected to
This
voir dire could
be
limited
attitudes,
might
experiences,
feelings
latent
uncover actual
or
jurors.
suggest
part
Because the
racial bias on
of individual
murder,
case deals with an interracial
it is clear that defense
Ramseur,
jurors
counsel was entitled to
questioned
have the
on bias.
243-48,
188;
pra,
Horcey, supra,
524 A.2d
su
N.J.Super.
The trial reopen court’s for the issue of satisfy high racial required bias also failed to standards Significantly, context of this placed case. the court the full responsibility juror’s revealing prejudice and burden of on the juror. prospective jurors Just as it is unrealistic to assume that prejudices would reveal open spectator-filled their courtroom, expect jurors readily it is not realistic to that will approach the bench to personal experi- unburden themselves of feelings question ences and of racial bias. The must be asked of jurors directly, discretely, individual persistently, privately. physical presentation The court must be able to evaluate of the spoken including juror. answer the demeanor of the Too much is prejudice may at stake. The go undisclosed unchecked as a generates potential result trial court’s omission unfairness that cannot be tolerated. starkly highlighted inadequate voir dire were dangers of an the final as M. was selected one present case. Juror
in the trial, 28, 1994, day two the fourth jurors. On June sixteen that M. informed the court the court and coworkers called of M.’s additionally work. The coworkers the trial at had discussed M. in cham questioned a racist. The court alleged that M. was up had made his telling coworkers that he his bers. M. admitted purchase store to off to the hardware about the trial and was mind M., however, claimed hang rope defendant. some with which stop only made the comments to said and not mean what he he did with the M. never deliberated from coworkers. the harassment However, through the voir dire slipped M. jury. the fact that “If counsel is a restricted voir dire. dangers of such points to bias, inevitably leads prejudice and to screen out unable this result— possibility juries. This result —or unfair II, supra, 113 N.J. at be tolerated.” Williams cannot added). (emphasis A.2d 1172 *102 under the here is considered dire conducted the voir
Whether or the capital in cases governing the voir dire rigorous standards cases, question- governing non-capital the standard more relaxed wholly inadequate. jurors their biases was ing potential of the on safeguard the death- responsibility to majority’s default on its The ultimate discriminatory application of the process from the penalty particularly ominous. punishment is
Ill majority principles, finds the Contrary firmly-settled the to mitigation ability proffer to relevant of defendant’s restriction Further, unduly majority restricts the evidence harmless. Specifi- proffer mitigating evidence. ability to capital defendant’s to the trial court’s failure cally, majority as harmless dismisses mitigation the death may in , that it consider inform in defendant’s will result penalty the fact that a life sentence certain, becoming parole prison prior if death probable, majority the defendant’s abili- Additionally, the restricts eligible.
421 ty proffer impact upon the execution would have family mitigation defendant’s as relevant character evidence. Oth- er additional majority restrictions sanctioned further dis- previously guided tort this Court’s established scheme of discre- tion. Eighth guarantees capital Amendment that a
may mitigating submit all evidence to his sentencer that is rele vant to “the character record of the individual offender and particular the circumstances of the offense.” Woodson v. North Carolina, 280, 304, 2978, 2991, 944, 96 U.S. S.Ct. 49 L.Ed.2d (1976). requirement The focus of the is to ensure that the reasoned, regarding sentencer can make a individualized decision deathworthiness defendant. The United States Su preme corollary also Court has established “the rule that may precluded sentencer not refuse to consider or from be ” considering ‘any mitigating Skipper relevant evidence.’ v. South (1986) Carolina, 1, 4, 106 1669, 1671, 1, 476 U.S. S.Ct. 90 L.Ed.2d Oklahoma, 104, 114, 869, (quoting Eddings v. 455 U.S. 102 S.Ct. 1, 11 (1982)); 8, 106 71 L.Ed.2d see also id. at S.Ct. at (finding excluding at 9 trial L.Ed.2d court erred “credible petitioner good prisoner” though evidence that was a even directly pertain evidence did not to defendant’s blameworthiness crime). for the Supreme
The United States Court stated that “full consider mitigates against penalty ation of evidence that the death give response essential if the is to reasoned moral character, background, Penry Ly defendant’s and crime.” v. 327-28, 109 2934, 2951, 106 naugh, 492 U.S. S.Ct. L.Ed.2d (1989) omitted). (quotation repeated “Full consideration” has ly interpreted expansive been an manner: *103 Eighth [T]he in all sentencer, and Fourteenth Amendments that but require considering mitigating the rarest kind of not be from as a case, capital precluded of a character or record and of circumstances defendant’s any aspect any
factor of as a for a less than death. the offense the defendant basis sentence proffers [Lockett v. 57 L.Ed.2d 990 Ohio, 586, 604, 2954, 2964, 973, 438 U.S. S.Ct. (1978) (footnotes omitted).] capital constitutionally necessary element of individualized
aAs
sentencing,
Jersey Legislature and this Court have
the New
factors,
recognizing mitigating
expressed
strong
a
commitment to
favoring
any
of
reliable evidence
the admission
and further
penalty phase.
mitigating factors at the
N.J.S.A
relevant
2C:11-3c(2)(b) provides,
pertinent part,
“[t]he
in
offer,
governing
of
may
regard to the rules
the admission
without
trials,
any
relevant to
of the
at criminal
reliable evidence
evidence
intent,
legislative
this Court
mitigating factors.” In line with the
“
favors
adopted
that]
a ‘broad
for relevance
admissibili
[test
has
(1984)
619,
Davis,
611,
428 U.S.
long
capital-sentencing
[at
that “so
as the evidence introduced
defendant,
preferable
hearing
prejudice
it is
not to
does]
restrictions”))).
further held that “the sentenc
impose
This Court
inquiry
scope,
‘broad in
ing process should embrace an evidential
may
largely unlimited either as to the kind of information that
be
Davis,
considered,
may
or the source from which it
come.’”
(quoting
supra, 96
Any rights present on of defendants to evidence restriction mitigation support of individualized consideration and Muhammad, 23, 108, troubling. 145 N.J. 678 A.2d death is See
423 (1996) 164, (Handler, J., dissenting). cumulatively, the Viewed imposed by mitigating affirmation of the limitations on evidence protections significantly the trial court in this case undermine the Supreme previ- that the United State Court and this Court have ously acknowledged necessary application as to fair consistent penalty. of the death
A.
that,
majority’s
appropriate,
I concur with the
conclusion
when
penalty-phase jury
trial court should instruct the
that the conse
quence
thirty years
parole
of a life sentence is a minimum of
ineligibility imposed
prior
consecutive to defendant’s
sentences.
holding
by
Supreme
This
is mandated
the United States
Court
Carolina,
154,
decision in
v.
Simmons
South
512 U.S.
S.Ct.
2187,
(1994),
Mejia,
in
v.
L.Ed.2d 133
and our decision
State
475,
supra, 141 N.J.
1.
virtually
penalty phase,
From the start of the
it was
inconceiva
spend any
fifty-seven
would
than the next
ble that defendant
less
years
possibility
parole if he
prison
in
without
was
sen
already serving a life sentence with
tenced to die. Defendant was
County
thirty-year parole disqualifier for the Atlantic
murder of
Sophia
logical
ultimately
presumption
A
Fetter.
correct
was
County
in the Mercer
ease would result
that the murder conviction
Yarbough,
life sentences under
v.
100 N.J.
consecutive
State
(1985),
denied,
A .2d 1239
cert.
475 U.S.
106 S.Ct.
(1986).
sought
defense
to introduce
The trial court
(1992)
III).
(Bey
Bey III
Bey,
five-two
majority
The
holding
are debatable.
actual boundaries
holding
correctly
dictates
asserts that
narrowest
Simmons
dangerousness
when
future
is at issue
state
defendant’s
parole
life
prohibits
release on
if a
sentence is
law
defendant’s
rendered,
Process
of the United
Constitu
the Due
Clause
States
ineligi
requires
parole
be
of defendant’s
tion
informed
opinion
of the Simmons
bility.
Critically,
significant
Blackmun
juror
Justice
cited
evidence of
length
about the
confusion
of time served on a life sentence.
at _ &
Simmons,
9, 114
512 U.S.
n.
S.Ct.
2197 & n.
(citations omitted)
at 146 & n. 9
(recognizing
L.Ed.2d
that “[i]t
*107
hardly
questioned
juries
can
be
that most
lack accurate informa
precise
tion
meaning
imprisonment’
about the
of ‘life
as defined
States”);
at _,
2198,
id.
427 Anthony Paduano & Clive defendants. See prejudice threatens to Con Smith, Misperceptions Deathly Errors: Juror A. Stafford Penalty, 18 Co Death Imposition cerning Parole in the of (1987) 211, (explaining the effect 211-12 lum.Hum.Rts.L.Rev. that life sentence is meaning of a juror of the misperceptions death” to avoid penalty for a to vote jurors constrained “feel[ ] “ jail parole” free’ on ‘get out of with a providing the defendant Simmons, at card). Moreover, supra, 512 U.S. suggested in as jury 147, instructing 2192, _, L.Ed.2d at 114 at 129 S.Ct. life sentence with prior labored under that the defendant jury ignore insisting that the disqualifier, yet thirty-year parole availability of jury fact, informing the of the has the effect this fact. The Simmons “blind” to this yet telling them to be parole, instruction frustrating of such an nature noted the Court following such capable of jury might not be implied that a further By 147. _, L.Ed.2d at at at 114 S.Ct. guidance. Id. their legal effect of of the ensuring juries be aware will A.2d this Court’s at findings, Mejia, supra, 141 N.J. that threat jury confusion dangerous ruling cure much of -will sentencing determination. ens the jury must be aware that the repeatedly stressed
This Court has
I, supra, 131
Martini
sentence.
“practical effect” of its
juries of
inform
311-13,
(recognizing need to
at
619A.2d
verdict,
especially when defendant
of their
practical effect
III,
129 N.J.
Bey
eligibility);
likely
parole
to survive
jury that a
to inform the
601, 606,
(finding failure
I continue to maintain that a defendant’s
sentence is also
mitigating
Eighth
admissible
evidence under the
Amendment and
Jersey’s
New
counterpart.
constitutional
mitigating
instruction should be construed as
an
requested
evidence because
weigh
assurance that defendant would die in
if
to
sentenced
life would
prison
against
jury’s sentencing
arguably
defendant to death. That
would be relevant
c(5)(h).
‘background’
mitigating
or
defendant’s ‘record’
factor
pursuant
(Handler,
dissenting) (citing
III,
129 N.J. at
610A.2d 814
[Bey
supra,
656-57,
J.,
(1990),
State,
Hunt v.
321 Md.
583 A.2d
387,
denied,
218
cert.
502 U.S.
112
835,
(1991));
(Miss.
S.Ct.
In the case at the failure ren- parole prejudicial and was not ineligibility was defendant’s an such by argument the of counsel. area of dered harmless jury’s comprehension of its sentenc- grave importance capital as a role, for the direct arguments the of counsel cannot substitute ing juiy, suggestion compare reasoning prior that the the of or a the instruction juiy present prior on the in their deliberations the sentence should instruct however, Here, prior only presents the sentence to make Loftin the sentence. argument Biegenwald that he "will the Court that was entitled: to which found 49, IV, supra, eligible parole Biegenwald 126N.J. at his lifetime.” never be for IV, fully jury Biegenwald here would not be 172. Unlike in the 594 A.2d considering prior consequence their without the of the verdict informed words, knowledge previously the that Loftin was In other without sentence. life, knowledge run the that another life sentence would sentenced despite consecutively, inevitably that the two murder would believe the convictions, parole thirty years. possibility within there was a 493, Henderson, 486, 6 Tansy, years supra, N.M. 882 in Clark v. 118 Four after (1994), Supreme length once Court held that the the New Mexico P.2d 527 evidence, mitigating choose a trial court cannot is asserted as incarceration instructing range juiy possible or providing of sentences with the between Rather, Tansy court juiy to death. that is the alternative on sentence non-capital charges prior impose on the sentence that the trial court must held capital charge capital inform and then deliberations on sentence potential jury of the total sentence. 430 Simmons, at _,
guidance
supra,
court.
trial
512 U.S.
2198-99,
(Souter,
concurring);
114
at
129
148
S.Ct.
L.Ed.2d at
J.
Taylor Kentucky, supra,
see also
v.
436
at
98
at
U.S.
S.Ct.
by
(“arguments
Thus,
jury
if sentenced to
was never informed
Loftin’s
years
ninety
parole
age fifty,
at
but at
of
would
face
defendant
clear,
punishment.
age.
distinction in the
There is
substantive
scenario,
anticipate
to
the freedom
In the former
defendant could
society.
travel,
himself,
The
enjoy
the benefits of
educate
may
may
if
jury
also
that defendant
recidivate
have
considered
scenario, the
fifty years
age.
In the latter
concern
released at
of
jail.
Instructing
jury
disappears
because defendant dies
prior
of
sentence ensures that the
the effect
defendant’s
about
informed, sound,
fully
and confident
equipped
is
to make a
punishment.
of
instructions
The absence
such
determination
reliability
any
is
only
death sentence
can
decrease the
III,
Bey
supra, 129 at
B. right proffer majority restricts the of defendants further ability by denying mitigating relevant evidence family as impact on his relevant of the execution introduce the evidence, N.J.S.A. factor 2C:11- mitigating under character 367-69, 712-13, by severely 3c(5)(h), A ante .2d at *111 c(5)(a) the of import individualized consideration minimizing the of 373-76, Ante at at 715-17. 680 A.2d mitigating factor. jury’s improper of restrictions effect those deleterious by the mitigating is exacerbated ability evidence to consider aggravating factors to consider expansion of discretion recent See State v. are irrelevant to defendant’s blameworthiness. that (1996). Muhammad, 23, 145 N.J. 678A.2d 164 Muhammad, in As evidenced our recent decision as well as scope non-capital sentencing Jersey, the of it manner New proffered family impact is clear that is defendant’s evidence mitigating relevant character evidence. precedent concluding is family
There a member’s testimony about the death of a is relevant relative to the character Muhammad, supra, 145 N.J. at of decedent. the 678 A.2d Cf. (ruling impact evidence of the victim of loss of on close friends family members, uniqueness about victim’s character and as individual, relevant). impact an is information If the of the loss of relevant, on clearly impact the victim the victim’s survivors is family of the execution of on defendant’s is relevant to uniqueness of defendant as an individual. No other conclusion Indeed, reasonably although can cogent— be asserted. there are fact, objections to the relevance of the victim’s unanswerable — worthiness, id. determining character a death defendant’s at 102-03, (Handler, J., dissenting), family-impact A.2d 164 evidence is deemed relevant to character because it evinces strength of the family. bond between the victim and his or her The contribution and connection the victim or defendant makes to her family his or is thus his or indicative of her character and or, in mitigation arguably, mitigation. relevant rebuttal of Davis, v. 96 477 A.2d this Court recognized the relevance of less direct and generalized more There, present character evidence than that in the offered case. held relating Court that circumstantial statistical evidence people the likelihood that will age recidivate' after a certain is understanding particular relevant character defen dant it qualities because “embraces those individual that distin guish particular a Id. person.” If A.2d 308. generalized likely statistical estimate that defendants are less age probative recidivate after a certain individual “those qualities distinguish particular person,” beyond it is com prehension on what impact basis Court now concludes that the people defendant’s death on with his whom life is most intimate-
433 entwined, character. See also State ly is irrelevant defendant’s (en banc) (1994) 573, 162, Stevens, 879 P.2d 167-68 v. 319 Or. to establish the (concluding that of circumstantial evidence the use establishing character was character or factors defendant’s sufficient). upon impact of the execution defen
The consideration of
2C:44-1b(11),
supported by
which
family is also
N.J.S.A
dant’s
non-capital
in a
case to consider
effect
requires the sentencer
Mirakaj,
dependents.
a
See State v.
of a
on defendant’s
sentence
51-52,
(finding
48,
(App.Div.1993)
A.2d
N.J.Super.
632
850
268
on
children in
impact of sentence
defendant’s
failure to consider
error).
penalty
non-capital case
harmful
Because
death
penalties----[a]nd
a lowered
“profoundly different from all other
mitigation
admissibility
proffered
in
evidence
threshold
Davis, supra,
recognition,”
...
this
is consistent with
[sentence]
(citation omitted),
it would be
Thus, admissibility the broad standards for of mitigating evi- Eighth dence under compel and Fourteenth Amendments family consideration of the effect of the execution on defendant’s mitigating as mitigating by character evidence. Each factor found jury tips imprisonment away the scale towards life and from children, death. The that effect defendant had on his as evidenced impact execution, because, his is relevant as the Stevens found, ability Court it demonstrates defendant’s an have emo- impact positively engage tional on others and and influence Stevens, supra, another human life. See 879 P.2d at It 167-68. demonstrates defendant’s human worth at the moment Indeed, is to decide life or death. fact that Donald father, influenced in a their were Loftin’s children were aware of father, depended on their way by positive loving their father, clearly defendant’s character as fact as relevant to College. Community County attended Bucks he
IV errors, I note that there were foregoing to the addition cumulatively, independently, or mandate rever- further errors that testimony including, particular, trial admission of sal court’s the Atlantic lack mental defense to relating to defendant’s require no further elaboration County murder. These errors this time. dissenting O’Hern join separate opinion
I Justice also *114 regarding Mejia the issue. reasons, opinion the foregoing
For I dissent Court’s the from judgment. and J.,
O’HERN, dissenting. appeal in the court principal this are whether The issues jury it to instruct the error when failed that committed reversible killing as the involved intent it not be unanimous to whether need bodily injury it need not inflict and that to kill or intent to serious had the deciding in defendant committed unanimous whether be by his conduct. murder own Mejia, in v. are identical to those raised State points
The
almost
Brown,
(1995),
v.
138 N.J.
141
In Court guilt for theories under which be unanimous on various Thus, example, may be found may one be murder established. guilty jurors agree do unanimously of murder even-if whether principal, accomplice, co-conspirator. the actor’s role was that of or Brown, 520-22, supra, State v. 19. N.J. 651 A.2d So too non-capital murder required jury cases we have never that a be it instructed that must be unanimous on whether the defendant
knowingly
purposely
knowingly
or
intended
cause death or
or
purposely
bodily
intended
injury resulting
to cause serious
Mejia,
486-87,
death.
v.
N.J. at
In State v. 549 A.2d we legislative history Penalty held that the of the Death Act limited penalty killings. death to intentional We thus ruled in evidence, required consider, if Gerald that must alternative, purposely knowingly whether a defendant or purposely caused or knowingly bodily death or caused serious injury Only that resulted in death. the former offense renders a 69-70, death-eligible. Id. at 549A.2d 792. Jersey the New Constitution was amended overrule permit capital punishment Gerald and to of a defendant who only (SB bodily injury intended serious in death resulted I murder) prohibition offending without against cruel and un punishment usual Jersey contained in the New Constitution. N.J. *115 ¶1, Legislature Const. art. 12. The subsequently amended the change. Criminal Code to reflect that N.J.S.A. 2C:11-3i. Howev er, the because homicide in this case occurred before those amendments, statutory constitutional and the Gerald distinction applies. still case,
In this decided v. after State Gerald but before Brown and Mejia, properly the trial court jury instructed the that it must beyond decide a reasonable doubt whether defendant intended to kill bodily injury. not, or to cause charge serious The did howev-
437
er,
jury
instruct the
that it need not be unanimous on
issue of
Likewise,
jury
intent.
sheet did not inform the
that it
verdict
reasonably-doubtful
or
option
had
to return a non-unanimous
finding
between intent
to kill and to cause
on
distinction
injury,
accomplice liability.
bodily
possible
serious
and on
agree
majority
I
in
to
with the
that this is a thin case which
find
Brown,
accomplice
conspirator charge.
possible
a
or
See
v.
State
528-29,
(holding
jury
supra,
We need
further than
Court’s
case,
475,
Mejia,
141
like this
victim
a baseball
intent
victims before
bat,
with
expressed
(defendant
(1990)
killings);
Hightower,
378, 412-14,
v.
120 N.J.
A.2d
range
dragged victim
and then
into
chest, neck,
head,
shot victim at close
(1990) (defendant
freezer);
Rose,
intent victim immediately prior twenty-four (1995), [So in] too, Harris, State v. 141 N.J. 662 A.2d ... [found] 333 we give charge [constituted] failure to a Gerald harmless error. The facts that case, suggested] however, when Harris shot the victim in the back of the neck, lying ground, most while the victim was on handcuffed that the likely shooting was intentional, and that Hanis was certain that death would practically result. give charge In contest, failure Gerald constitutes error reversible whenever the evidence is a rational basis for the minimally adequate provide jury to hold a reasonable doubt the defendant intended to cause death. As we have stressed, [although might it seem that the had intentional in mind, murder probable is whether a rational there is basis the evidence on question which
jury,
distinguish
might
if instructed to
return
two,
a verdict of serious-bodily-
injury
jury,
If
murder.
there
then the
as the finder of
is,
fact, must decide the
matter. An
court cannot.
appellate
Mejia,
(quoting
[State v.
488-89,
141N.J. at
662A.2d 308
State v.
Harvey,
(1990),
121 N.J.
A.2d
407, 413,
denied,
cert.
499 U.S.
S.Ct.
(1991))(citations
re-ordered).]
paragraph
113L.Ed.2d omitted and
Harris,
This case is far from Harris.
In
we stressed that in his
jury,
final
simply
words to the
the defense counsel
“asked for a
impartial
‘fair and
‘Joseph
verdict’ on whether
Harris was insane
”
...
night
or
not insane on
alleged
that this
offense occurred.’
141 N.J. Thus,
theory
Because Loftin
facts;
murderer,
specific version of
presented
he
no
prior
as a
have been an
instead,
shooting
could
on evidence that
he relied
theory
stronger
presented a
The defense would have
accident.
been
robbery gone
it had not
shooting
bad —if
accidental
—a
example,
at trial. For
unfairly
developing
its defense
restricted
that her
testified on cross-examination
pathologist
the State’s
killing and that the black
preclude an accidental
findings did not
the result
right eye could have been
the victim’s
and blue mark on
defendant)
(evidence
the bullet
struggle
or
of a
with
of a blow
addition,
pathologist nor the State’s ballistic
In
neither the
itself.
gun
was fired
any evidence that
expert
that there was
stated
(In
expert
phase, the ballistics
range.
penalty
point blank
at
move
“easily”
a thumb
safety disengaged
with
explained that the
supra, Mejia,
ment.)
Like the defendant
was
only one bullet
the fact that
Loftin contends that
A .2d
premises
left the
that Marsh was alive when Loftin
fired and
intent to kill.
supports
of a rational basis for lack of
the existence
shooting.
one-half hours after the
Marsh survived at least nine and
speculation
permit the
argues that it would be
The State
robbery
there is
gone
as a
bad because
to consider Loftin’s case
Hightower,
v.
146 N.J.
no direct evidence to that effect. State
(1996),
239, 267-69,
explains
far the
663-64
how
680 A.2d
constructing
theory
permit
go
Court will
the State
any
evidence.
escape
murder
detection without
direct
case,
evidence,
was
on similar circumstantial
the State
Loftin’s
execution-style killing.
speculate that
this
an
allowed to
*118
strongly sustains the inference that
Of course the evidence
in
and the
intended to kill. Marsh was shot
the head
Loftin
trajectory
suggests
gun
aimed at head
of the bullet
that the
was
gun required
exertion of
argues
that the
the
level.
State
(ten
pull
pressure
pounds)
half
in order to
the
substantial
and a
at the time
trigger, that defendant was within a few feet Marsh
office,
gas
shooting
of the
in the small confines of the
station
body, indicating a
that there were no defensive wounds on Marsh’s
struggle
physical provocation.
or
lack of
proposition of
there was a rational basis for
To test the
whether
only
bodily
finding
that
intended to cause
serious
whether,
only
if
had
injury, we need
ask ourselves
the
ground,
guilty
returned a
verdict on that
the court would have set
being
any
without
rational basis in the law.
aside that verdict as
Although
very strong,
impossible
it is
to reach
the State’s case
Mejia, supra,
provide,
conclusion that the facts
the words of
the
308,
certainty
“wantonly
that
441 (1991) (defendant IV, gunshots A.2d fired four N.J. head). to victim’s very guarantee [always] held the core of the
“We have
that at
judicial obligation to
a fair trial in a criminal case is the
insure
jury’s
solely
are
on the
impartial
deliberations
based
evidence
proper
adequate
and are
in accordance with
instruc
made
Purnell,
(1992).
518, 531,
Because the
court
on defendant’s
permissible to reach
non-unanimous verdict
state,
jury may
erroneously
have
believed
a failure
mental
swayed
may
This
have
certain
agree
result
a mistrial.
would
join
majority.
jurors
their honest convictions
abandon
a rational
provide
evidence
basis
Because there was sufficient
Marsh,
to kill
finding
that defendant did
intend
Mejia,
cannot
deemed harmless error.
flawed
instruction
be
I
therefore reverse
supra, 141
HANDLER, J., joins opinion. in this POLLOCK, GARIBALDI, For STEIN affirmance —Justices and COLEMAN —4.
For reversal and remandment —Justices HANDLER and O’HERN —2.
Argued January August 1996 Decided 1996.