*1 690 A.2d PLAINTIFF-RESPONDENT, JERSEY, NEW STATE OF MARSHALL, DEFENDANT- ROBERT O. v. APPELLANT. January
Argued March 1997. 1996 Decided *17 no
Ill *36 Borman, Deputy Defender L. First Assistant Public Judith Pelt, Defender, argued the Deputy Public cause Joan D. Van (Susan Reisner, Defender, attorney; Ms. appellant L. Public *37 Castro, Assistant Borman, N. De Pelt and Bernadette Ms. Van briefs). Defender, on the Deputy Public Heinzel, Attorneys Deputy H. Bonpietro E. and Paul Robert Poritz, (Deborah T. respondent General, argued the cause for attorney). Jersey, Attorney of New General TABLE OF CONTENTS AND HISTORY....................137 I. FACTS PROCEDURAL OF POST-CONVIC- II. THE INTERRELATIONSHIP RELIEF, THE CAPITAL PUNISHMENT TION ACT, AND HABEAS CORPUS...........................143 DEFENDANT’S III. LEGAL STANDARDS GOVERNING CLAIMS...............................................154 FOR PETITION IV. THE MERITS OF DEFENDANT’S RELIEF...........................159 POST-CONVICTION RELATING TO THE A ALLEGED ERRORS OF BILLY WAYNE TESTIMONY MCKINNON......................................159 Agreement........................159 1. Plea McKinnon’s Relating 2. to McKinnon’s Other Claims Credibility......................................163 Telephone Call to Cumber.......171 3. McKinnon’s Robert Penalty Impact Phase........................172 4. on the ERRORS RELATING TO B. ALLEGED RUSSELL DEFENSE INVESTIGATOR KOLINS..........................................172 THE ERRORS RELATING TO C. ALLEGED TAPE” ITEMS AND SEIZED “SUICIDE MOTEL ROOM.............181 FROM DEFENDANT’S 1. Based on Relevant to Whether Claims Evidence Tape Suppressed Have Been on Should Improperly It Seized.......182 the Ground That Was Relevant to Whether 2. Claims Based Evidence Tape Suppressed on Should Have Been Subject the Attor- That It the Ground Was Privilege...............190 ney-Client Communication Alleging of Coun- Ineffective Assistance 3. Claims Tape” sel in Connection With “Suicide at the the Items Best Western Seized Motel..........................................195 4. Claims Associated with Miscellaneous Tape” and Items Seized at “Suicide Motel.............................198 Best Western *38 TO SARANN RELATING D. CLAIMS KRAUSHAAR.....................................200 THE PRECLUDED ERRORS THAT E. ALLEGED CRIME FROM THE DEFENSE UTILIZING AS PORTRAY DEFENDANT TO SCENE A THE OF CRIME........................205 VICTIM In1. General........................................205 .........................................206 2. The Tire Failure to Elicit Cross-Examina- Counsel’s 3. tion Consistent Statements Made About to Various Police Officers Defendant Experienced He His Car.......208 with Problems Body Ballistics ......................209 4. Position of Oyster Stopping Area ............211 in the Creek Picnic 5. Injuries Treatment.................212 6. Defendant’s Demeanor.............................213 7. Defendant’s Jewelry......................................214 8. THE ERRORS THAT PRECLUDED F. ALLEGED THAT FROM DEMONSTRATING DEFENSE IN- DEBT NOR DEFENDANT’S NEITHER ON THE VICTIM’S POLICIES SURANCE ............214 FOR MURDER LIFE MOTIVES WERE 1. Debt.............................................214 Insurance Policies.....................217 2. Victim’s Life DEFEN- ON ALLEGED INFRINGEMENTS G. RIGHT TO RETAIN COUNSEL............221 DANT’S DEFENDANT’S OF H. ALLEGED VIOLATIONS MIRANDA RIGHTS...............................225 OF THE INTEGRITY RELATING TO I. CLAIMS THE JURY..........................226 IMPANELED OF PROSECUTO- CLAIMS J. MISCELLANEOUS RIAL MISCONDUCT..............................232 ALLEGED FAILURE TO TRIAL K. COUNSEL’S EVIDENCE CORROBORAT- INTRODUCE .................233 TESTIMONY ING DEFENDANT’S THE USE ALLEGED ERRORS INVOLVING L. WARRANTS.........................239 OF SEARCH THE JURY CHARGE.........241 ERRORS IN ALLEGED M. OF THE RELIABILITY INVOLVING CLAIMS N. PROCEEDING............243 THE PENALTY-PHASE DISCOVERY ALLEGED MISCELLANEOUS O. VIOLATIONS.....................................258 OF IN- CLAIMS ALLEGED MISCELLANEOUS P. .........260 OF COUNSEL ASSISTANCE EFFECTIVE THE THAT DEATH-PEN- ALLEGING CLAIMS Q. ALTY IS UNCONSTITUTIONAL STATUTE THE APPELLATE DEATH-PEN- AND THAT IN THIS CAPITAL ALTY PROCEEDINGS AND BEEN INADEQUATE CASE HAVE UNRELIABLE....................................263 ANALYSIS OF CLAMS..............266 R. CUMULATIVE THE FARNESS OF THE V. INVOLVING CLAMS RELIEF PROCEEDINGS...........267 POST-CONVICTION TO THE STATE’S FILES.......268 DENIAL OF ACCESS A RELIEF COURT’S B. THE POST-CONVICTION ITSELF.......275 TO DECISION NOT DISQUALIFY TO OF DEFENDANT’S ATTEMPT DENIAL C. ................279 THE TRIAL JURORS INTERVIEW PERMIT RECONSTRUCTION D. REFUSAL TO THE TRIAL OF AND SUPPLEMENTATION RECORD.........................................280 PER- LAW ENFORCEMENT E. REFUSAL OF *39 TALK TO THE DEFENSE............282 SONNEL TO THE THAT POST- CLAMS F. MISCELLANEOUS RELIEF PROCEEDINGS CONVICTION ..................................284 WEREUNFAR VI. CONCLUSION...........................................286 opinion was delivered Court
STEIN, J.
Marshall,
Defendant,
con
jury
a
and
Robert
was tried before
wife,
murdering
conspiring murder
Maria
victed
and
to
his
hearing,
a
defendant was sen
penalty-phase
Marshall. After
sentence,
upheld the convictions and
tenced to death. This Court
(1991),
1,
defendant’s
N.J.
123
After petition post-conviction relief filed with that court a defendant 3:22-1, grounds Rule (PCR), alleging 500 for the more than see opin- unreported In an reversal of his convictions and sentence. ion, application. Defen- the Law Division denied defendant’s PCR 2:2-l(a)(3), see Rule right, as of appeals dant this Court application by presenting to this Court the first PCR a defendant Jersey Code of Criminal sentenced to death under New Justice.
137
I
FACTS AND PROCEDURAL HISTORY
recounting of the
adduced
A detailed
evidence
forth in our first Marshall
guilt-
penalty-phase
trials is set
and
(1991)
Marshall,
1,
123 N.J.
State v.
L.Ed.2d
“a
We
jury
have
as
from the State’s
facts
could
found
drawn
(1992)
Marshall,
109,
120,
v.
130 N.J.
brief,”
L.Ed.2d 694 to facilitate disposition appeal. of this agent, began with Toms an extramarital affair River insurance Defendant, 1983. As as December woman, 1983,
Sarann
married
in June
Kraushaar,
early
killing
In
wife,
idea of
his
Maria.
May
defendant mentioned to Kraushaar the
hiring
him about
met
Cumber of Louisiana and
1984,
questioned
defendant
Robert
“investigator.”
later
who referred defendant to
Cumber,
Defendant
telephoned
officer from Louisiana. Defendant
a former sheriffs
McKinnon,
Billy Wayne
agreed
him in Atlantic
New
City,
Jersey.
McKinnon
meet
$5,000
to pay
in Atlantic
on
City
met McKinnon at Harrah’s Casino
June
Defendant
wife.
In addition to the
$5,000
him
kill his
$65,000
offered
pay
agreed to
him
front and
received,
$10,000
had
already
up
McKinnon
pay
meeting
life. At that
insurance
his wife’s
$50,000from
expected
proceeds
gave
him a
of his
Defendant
McKinnon
wife.
$7,000
picture
defendant paid
*40
evening,
would
In
to kill
that
when defendant
be
told McKinnon
her
present.
lolling,
to
McKinnon discussed various
kill
ways
for the
defendant and
preparation
a
he
that he would not be considered
because
Maria. Defendant believed
suspect
outstanding
an
citizen with influence in the community.
was considered
the
at that
but
returned to
time,
McKinnon did not
out
murder
instead
carry
on
and sent
with him numerous occasions
Louisiana. Defendant communicated
job,
to
the
him
from defendant
additional
Under
money.
pressure
complete
with defendant,
to
on
and met
who
19,1984,
McKinnon returned Atlantic City
July
evening.
killing
told
the
to take
that
Defendant
a second
for
plan
place
proposed
car
defendant
he
his wife in their
to be executed while
McKinnon that would leave
using
the
of
the bathroom facilities.
a restaurant under
went into
pretense
commit murder at that time either.
McKinnon did not
the
However,
his
an
killed,
in his efforts to have wife
offered McKinnon
Defendant, persistent
($15,000)
to New
a third time to do the
if he would return
Jersey
“extra fifteen”
"job”
agreed,
he and
and,
6, 1984,
Labor
McKinnon
on September
before
Day.
Together
parking
Toms
at a
area
lot located south of
River.
defendant met
service
on
to
out Maria’s murder and
a
the Garden State Parkway
carry
selected
they
spot
evening.
slaying,
to
to occur that
The
was
plan
made
for the
which was
final plans
a
make murder look like robbery.
the
night of
in Atlantic
on the
City
took his wife to Harrah’s Casino
Defendant
evening
dining
gambling.
of
and
He
under
an
of
6, 1984,
the pretext
September
him that he
at
9:30
and told
met
outside Harrah’s
approximately
p.m.
McKinnon
leaving
midnight.
also
casino at about
Defendant
asked
and Maria would be
the
photographs
of
home that he
of
of Maria and
their
McKinnon for the return
the
given
had
him in June.
arranged
into
with
defendant
the
Creek
McKinnon,
Oyster
As
pulled
previously
at about 12:30
at
the Garden State Parkway
area milepost seventy-one
picnic
sleeping
got
on the front
defendant
seat,
a.m. on
7. While his wife lay
September
needing
a
tire.
car
the ruse of
to
flat
Defendant squatted
out of the
under
repair
being
for
hit on
head as
of the simulated robbery.
down to
himself
the
prepare
part
died immediately.
shot in
twice. She
Maria Marshall was
the back
to
the
scene,
continued make
murder
When the
arrived on the
defendant
police
argues
no
look
a
The State
that defendant showed
remorse after
like robbery.
join
grieving
their
to
three sons in
over the loss of
mother.
but
his
crime,
pretended
staged
argued
a
that he even
suicide
The
at
trial
level
attempt.
State
to do so
his innocence then and continues
now explanation
Defendant protested
his
of
conduct.
of
soon
records traced him
Defendant’s claims
innocence
unraveled. Telephone
exchange
In
for a
to
to
McKinnon,
who turned State’s evidence.
plea
conspiracy
Louisiana man,
Marshall and identified a
murder,
commit
McKinnon implicated
triggerman.
as the
Larry Thompson,
increasing
Investigation
during
planning,
his
defendant had been
disclosed
time
death,
on his wife’s life. At the
of her
Maria Marshall’s
insurance policies
paying his
life
insured for about
Defendant had been
wife’s
$1,400,000.
was
neglecting
while
his own. Defendant hastened
premiums
complete
applica-
mortgage
On
last
her
tion
a
for a home
before the murder.
day
for policy
The State offered
life, Maria underwent
examination
physical
policy.
rising
could
to kill
incurred in
that defendant
have been motivated
debts
by
proof
including a
loan
bank
business,
his
and short-term
debt
$128,000home-equity
amassing
large
also
While
those
insurance
defendant
$40,000.
policies,
excess
with
with whom had intended to
Kraushaar,
continued his
Sarann
he
relationship
live after the murder.
juryA
of the
but
McKinnon’s version of
murder
acquitted Thompson
accepted
guilty of
role and found him
to commit
wife’s murder
his
conspiracy
aggravating
found
and of
The
factor submitted
and
murder-by-hire.
only
by
jury
had
to commit murder.
was that defendant
hired another
N.J.S.A 2C:11-
3e(4)(e).
jury
mitigating
The two
factors submitted
and found
were
2C:H-3]e(5)(f),
[N.J.S.A
defendant had no
criminal
and
history
activity,
2C:ll-3]c(5)(h).
mitigating
[N.J.S.A.
At the
factor,
catch-all
time
offense
age,
had
involved in
defendant
been
charitable
years
forty-four
jury
found
a reasonable doubt that
activities.
community
unanimously
beyond
mitigating
aggravating
outweighed the
trial court sen-
factor
factors. The
tenced
to death.
[Id.
121-24,
1059.]
613A.2d
*41
sentence on
affirmed defendant’s convictions and
This Court
thirty-nine
grounds for re
rejecting
proffered
appeal,
direct
his
versal,
coun
allegations of ineffective assistance of
which included
misconduct,
instructions,
sel,
prosecutorial
and dis
jury
improper
I,
1,
covery
supra, 123
nondisclosures did reversal 205, 207, A.2d 85. or Id. at tions sentence. items that the
Believing that there were additional discoverable defendant, over, filing petition after had failed to turn State Division, permit compel the State to in the Law moved PCR file. The Law Division inspect the State’s entire defendant motion, he was entitled but informed defendant that denied the explained discovery specific The court applications for items. file ..., compelled to turn over items should be “before State showing preliminary the reasonable there should be some specific items.” of the existence of likelihood sources, from, among other Based on information obtained witnesses, testimony adduced at defen- with interviews conducted State, trial, by the previously handed over dant’s documents “The and on by state at another trial statements made officials Show,” requests for Phil defendant made numerous Donahue believed, that, materials were specific discoverable discovery conceding its possession. the State’s Without volun- obligations applied question, the State documents *42 140 requested items.
tarily defendant some of made available to items, requested the State submit- Concerning the balance of court for determination to the PCR ted documents In some entitled to the documents. whether defendant was instances, provide to defendant with required the State the court instances, court found question. In other the documents probative value and product or of no the documents to be work discovery obligations. subject to the State’s thus initial after his PCR by The defendant documents received additional, discovery him to the existence of motions alerted documents, specific re him to make further pertinent led Through specific-request pro quests discovery materials. cedure, one approximately from the defendant received State form the foundation of hundred Those documents documents. required convictions is PCR claim that reversal his discovery pretrial its failure to fulfill because of State’s 3:13-3, obligations, and its nondisclosure evidence see Rule defendant, Maryland, Brady v. 373 U.S. 83 see favorable (1963). 1194, 10L.Ed.2d 215 S.Ct. total petition for PCR contained a of 548
Defendant’s amended reversal, placed by into grounds for each which was defendant categories. following displays separate chart one nine categories and the number of claims within used category. each
Category Number of Claims Discovery Relating A. 102 Issues Brady and Violations of v. Maryland, 83 S.Ct. 373 U.S. (1963) 1194, 10L.Ed.2d 215 Relating B. Issues Ineffective 267 Assistance of Trial Counsel Jury Relating C. to the Issues 74 Selection Relating D. to State’s Issues Procurement from Best Western of En- Motel and Examination Joseph
velope Addressed Esq., Containing Dougherty, Tape” and Defendant’s “Suicide Tape’s into Evidence Admission Relating to the Con- E. Issues Jersey duct of the New State Police, County the Ocean Pros- *43 the New ecutor’s Office and Attorney Jersey of the Office they as Affected Defen- General Trial, Rights dant’s to a Fair
Appeal and Post-Conviction Proceedings 24 Issues F. Miscellaneous Pertaining Appel- 9 G. Issues late and Post-Conviction Review Assistance of and Effective Trial Counsel H. Issues That Were Not Adequately or Reviewed Raised Appeal Page Due to Restric- on by Imposed Supreme tions Court Pertaining Propor- I. Issues
tionality Review evidentiary hearing support requested complete Defendant through presentation petition raised in the the claims documentary planned He to amend the evidence. testimonial hearing. In at the re- petition on the evidence adduced based entirety, in petition its sponse, the State moved to dismiss forth his claims with asserting that defendant had failed to set 3:22-8, that the claims were all specificity, see R. sufficient barred, exceptions, that (providing, R. with procedurally see 3:22-4 not, been, prior but was raised any that could have claim review); (provid- R. post-conviction 3:22-5 on proceeding barred precludes raising adjudication upon of claim merits ing prior review). post-conviction on claim part part and denied the State’s granted The PCR court grounds, court petition. procedural On motion to dismiss three-quarters Category of defendant’s B approximately dismissed claims, claims, claims, Category Category all of the D C all of the claims, Category Category all one of the F E but but one of the all claims, claims, Category H Category G all of the but one of the all claims, Category I claims. The court found that and all was either Rule 3:22-4 or Rule of those claims barred each 3:22-5. request present docu-
Turning to witnesses and that defendant develop petition, the court determined ments to his evidentiary hearing only complete five entitled to a pertained five to defense remaining 174 claims. Those claims representation opening-statement that defendant would counsel’s testify, competence part penalty- to take in the and to defendant’s post-verdict physical collapse. phase proceeding after that, claims, stated on the other 169 PCR court only “non-evidentiary hearing,” at to a which he would be entitled *44 documentary testimony. but not The present could evidence live explained: court hearings of do be conducted on The rules court not require evidentiary post- hearing has to conduct conviction relief The court discretion eviden- applications. meaning hearing hearings hearing an a when at tiary evidentiary appropriate, tjhere’s showing [In case, wii! this no that the which witnesses been testify____ hearing involve material will the resolution of fact necessarily disputed questions in ... to constitutional violations which can be resolved only evidentiary hearing. litigants for and In it the court for the undertake fact, apparent allegations hearing such a on the basis of the in the amended for petition post- legal would into a in essentially conviction relief be venture morass application proceeding no
the nature of a with ascertainable and limits. discovery parameters days testimony The court four and 177 heard received support petition During in PCR. defense exhibits nine hearings, petition. defendant moved to add more claims to his
143 date,” very “at this late and the motion to amend denied The court merit. the additional claims were without further noted hearings, the court denied defendant’s conclusion of the At the legal arguments to be without merit The court found his petition. undeniably prodigious efforts of “[d]espite the concluded that and presented by proceeding, [the evidence counsel this [defense] weight.” intact and undiminished trial] remains the State stayed pending appeal his execution has been Defendant’s right. this Court as of
II OF POST-CONVICTION THE INTERRELATIONSHIP ACT, RELIEF, THE PUNISHMENT CAPITAL AND HABEAS CORPUS of a this from the denial appeal the first taken to Court This is seeking to set aside a murder application relief post-conviction imposed pursuant to this State’s and death sentence conviction (codified Ill at N.J.S.A Act. L. c. Capital Punishment 2C:ll-3). petition and its constituent The voluminous size of appendix and fifteen including forty-five volume a documents — encompassing in excess together supplemental appendix, volume it on which the 548 claims of error pages with of 8000 —combined gargantuan appellate record. relies, presents the Court with De- in the Public initially were addressed presented The issues Attorney by the page primary brief and answered fender’s Public comparable dimension. primary brief General’s brief, request, con- at the Court’s supplemental Defender filed index by an eleven volume accompanied pages sisting of each of support citations setting forth record brief supplemen- responding The State’s relief claims. post-conviction comprises pages. tal brief professional effort and acknowledges enormous
The Court submissions, as well Defender’s the Public dedication reflected of that office. remaining resources imposed it as the burden *45 - comparable acknowledges the effort and Similarly, the Court Attorney by the General’s submissions. reflected dedication many implicating and so appeal on so vast a record An based obviously imposes institutional burden an enormous distinct issues Court, from the Court’s other diverting time and resources on this adjudicative responsibilities. We know that administrative and Nevertheless, penalty. question the we faces death presentation. necessity for a and the so massive both the wisdom supporting the its petition that the vastness of and assume We infer one strategic We of documents reflects considerations. very the desire to avoid the strategic considerations was those imposed by pursuant the procedural petition to the trial court bars essentially grounds bars all 3:22-4 and -5. Rule 3:22-4 Rule reasonably have been raised a post-conviction relief that could grounds for prior bars all relief that proceeding. Rule 3:22-5 adjudicated Presumably, the merits. previously were dividing post-conviction Defender’s office reasoned Public components dissuade claims into discrete narrow would relief imposing categorically from post-conviction relief court bars, procedural weight -5 and would add Rule 3:22-4 and argument required that the that the cumulative effect all claims granted. petition be post-conviction strategy unsuccessful in the relief
That court, disposition appeal emphatical- our of this and we intend that post- discourage fragmentation claims for ly the artificial will capital fragmenta- purposes, even in cases. Such conviction relief substance, unduly liti- tion burdens the elevates form over court, and Court. Post- gants, post-conviction relief this broadly coher- categorized should but conviction relief issues be necessary by pertinent exam- ently, and to the extent illustrated every purpose example minute ples. No valid is served when alleged separate as trial counsel’s ineffectiveness is offered post-conviction ground for relief. significance post- potential do not underestimate
We designed imposition strategy relief that is avoid conviction
145
Preciose,
In
v.
post-conviction relief.
State
procedural
bars to
(1992),
451, 464-78,
explored in detail
1280
we
129 N.J.
609 A.2d
corpus
practice
deny habeas
review
of the federal
the effect
adequate
independent
or
state
judgments that rest on
state court
Wainwright
procedural.
v.
substantive or
See
grounds, whether
2503-07,
594,
72, 81-87,
2497,
53 L.Ed.2d
Sykes,
97 S.Ct.
433 U.S.
(1977).
Reed,
Supreme
established
In
v.
Court
604-08
Harris
procedural
a
imposition
court’s
state
principle
state
the state
preclude federal habeas review unless
bar would not
proce
state
expressly stated its reliance on the
disposition
court’s
1038, 1045,
255, 266,
L.Ed.2d
103
489 U.S.
109 S.Ct.
dural bar.
(1989).
Harris, however,
308,
subsequent to
In decisions
319
finding a
presumption against
clarified that
the Harris
Court
“
has
‘applies only ...
a federal court
procedural default
where
independent
question
whether there is
good reason
Preciose, supra, 129
adequate
ground
state
for the decision.’”
471,
at district principle mandated a federal that the exhaustion held corpus that petition for a writ of habeas contained dismiss court 509, 455 unexhausted claims for relief. U.S. both exhausted and (1982). 1199, 379, 1198, The Court 71 L.Ed.2d S.Ct. litigants: you guidance potential “before offered this habeas court, you any sure that first have taken bring claims to federal be 520, 102 Id. at L.Ed.2d each one to state court.” S.Ct. at 388. *47 doctrine,
Despite preclusive effect of the exhaustion it the every of presentation not to a state court claim that does mandate might anticipated petition, habeas conceivably be asserted the only court of claims intended to be presentation but the state petition. Selectivity presentation in the of in the habeas asserted precluded by post-conviction relief is not the exhaustion claims obviously highly If claims are without merit and rule. certain unlikely purpose is or petition, in the habeas no served to succeed by including support either those claims of interest advanced the post-conviction petition relief or federal habeas the state Thus, requires nor ex petition. exhaustion doctrine neither the post- the indiscriminate assertion of meritless claims in a cuses petition. relief conviction repeating post-conviction principle relief
The
bears
proceedings
appeal.”
are “not a
for direct
State v.
substitute
(1979).
595, 605,
Cerbo,
-opinion
In State v. gov- procedural in the rules emphasized that the bars contained “imposed purpose.” Al- erning post-conviction relief are for a rigid, application,” though “endorsing] their mechanical we rules expressed expectation procedural our and their conscientiously unique will exceptions applied “be circum- case____” of each Ibid. stances case, however, unique
In the circumstances of this we practicality question the wisdom and the of PCR court’s application procedural Rule 3:22-4 -5 bars. broad-brush dismissed In view of substantial number claims under Rule adjudication prior upon the that “a merits of 3:22-5’s admonition ...,” fairly any ground question for relief is conclusive raised adjudication by is whether the this Court on direct ground proportionality the “same appeal or review concerned petition. post-conviction now in the relief relief’ asserted Similar ground they reasonably could ly, dismissal of claims on the appeal, direct R. raises the have been raised on see 3:22— post-convic facts in the question whether the additional disclosed sufficiently augment scope record of such claims to tion relief substantially that a similar claim could preclude conclusion trial record. have been advanced on the basis issue complex by the procedural on the bars is made more reliance invariably readily are recognition that the claims now raised as by application procedural on their merits as bar. resolved *48 by considering problem illustrate the PCR court’s We the post-conviction ineffective disposition of relief claims of assistance the raised trial counsel in the context of ineffectiveness issues of disposition issues. The PCR appeal and our of those on direct essentially disposition of the ineffec relied on this Court’s court I, challenge supra, appeal, on direct Marshall tiveness asserted 164-65, 85, noting “this was 586 A.2d that contention 123 N.J. concluding: Supreme appeal,” on and raised before the Court the may be said that all “[Ejxcept for claims not dismissed it the previously having R. been claims are barred under 3:22-5 as having previ adjudicated. any If are as not been claims viewed adjudicated specific the ously not raised in terms on because appeal, then the are barred under R. 3:22-4.” claims
148
However, of assistance of allegations ineffective specific the only a appeal brief include direct counsel asserted defendant’s post-conviction relief. In his fraction of the claims asserted only following ineffective- raised the appeal brief defendant direct guilt relating phase: the ness claims to prejudiced to the was counsel’s failure by pursue Mr. Marshall Specifically, through sitting and when cross- Maria was awake shot up that Marshall possibility investigation summation; and of the medical examiner, independent examination of the State’s his to about the inconclusiveness his failure to call tire expert testify findings, for the to an tire’s remedy chemist’s his failure request adequate object to remarks about the and failure to the summation destruction prosecutor’s flagged for his to the individuals down aid tire; by failure call as witnesses just failure to to obtain the murder; Marshall after the counsel’s attempt Septem- through et 2A:81-18, Mr. N.J.S.A. ber 6th medical Marshall report seq.; object of counsel’s failure to to blatantly improper questions prosecutor’s objection Oaldeigh statement, Maria his withdrawal of his to Marshall’s DeCarlo; object to to Hahn’s inadmissible for?”; hearsay “What’s this his failure Zillah discrediting Paul his failure to seek remedy defense witness Rakoczy; testimony jury relying informing the and on the fact of Kraushaar’s for the prosecutor’s object to summation; father’s counsel’s failure most of death; prosecutor’s to interview McKinnon and counsel’s failure to upon request opportunity learning testifying____ The cumulative a call to Cumber after effect he placed foregoing unfair and unreliable from errors was a trial was fundamentally start finish. allegations in de- Responding specific to the of ineffectiveness brief, appeal fendant’s this Court observed: direct counsel was denied effective assistance of contention defendant guilt Defense a certified criminal trial counsel, is without merit. utterly phase and of his client Rule zealous conscientious defense attorney, 1:39, see provided thoroughly throughout this trial. Counsel obviously well-prepared, protracted and his and advocated client’s record, forcefully familial- with persistently throughout guilt-phase proceedings. The of the deficiencies interests examples strategic no than a decisions relied on more fraction represent lengthy of this with which counsel was confronted in the course sharply- hindsight, suggest proceeding. different trial contested With it is difficult strategies might “[i]n have but the law settled that counsel pursued, ‘strategic assessing made after choices counsel’s adequacy performance, thorough investigation are virtually of law facts relevant plausible options ” Burger unchallengeable.’ 107 97 819, 3114, 3139, v. 483 U.S. S.Ct. 776, Kemp, (1987) (Powell, dissenting) Washing (quoting [v. Strickland J., L.Ed.2d (1984)]). [ [674,] 104 S.Ct. 80 L.Ed.2d ton], [668,] 690, [2052,] U.S. focusing on a Nor can of counsel’s be assessed by effectiveness fairly quality ignoring the in the context handful of while counsel’s issues, performance totality guilt. compelling Based on our close scrutiny of the State’s evidence *49 reject record, of the defendant’s contention counsel’s performance entire we Strickland/Fritz was under standard. deficient [Id. 85.] A.2d 164-65, 586 accurately discern from the court’s abbreviated We cannot PCR post-conviction claims the disposition of the relief ineffectiveness preclusive simply the court accorded effect this extent to which Although appeal. our disposition of the issue on direct Court’s familiarity appeal on direct reflected our resolution of issue record, disposition our should not have been with the entire beyond specifically raised in understood to extend the issues opinion appeal appeal brief. direct reflects defendant’s direct Our skilled, record, impression, counsel was based on trial our fairly thorough, disposition but our could not be diligent, and merits numerous encompass an evaluation on the understood to completely was then of ineffectiveness which this Court claims unaware. adjudi prior question on the whether
Scant caselaw exists
adjudication “on
be
cation of an issue should
considered
post-
support
subsequent
ground”
of a
as that asserted
same
N.J.Super.
Bontempo,
In
relief claim.
State v.
conviction
(Law Div.1979),
prosecu
in a
the trial court
murder
the structure violation, post-conviction Judge Baime ruled that the defendant’s resulting prosecu- from the a Fifth Amendment violation claim of had not been raised on defendant’s statement tor’s rebuttal Thus, petitioner’s did not bar appeal. Ibid. Rule 3:22-5 direct claim. explained:
Judge Baime
advancing
from
it would bé unfair
bar defendant
circumstances,
Under these
argument
To
sure,
claim
in his
be
the Fifth Amendment
presented
petition.
Division brief are
in defendant’s Appellate
advanced here and
presented
in a somewhat
States
Court has held
Nevertheless,
similar.
the United
Supreme
judicial
of constitutional
on habeas
context that federal
review
questions
related
or
it is clear that
the identical issues
should be denied
where
only
corpus
arguments
in the state
were not
initially
presented
“substantially equivalent”
(1971).
92
Similarly,
N.J.Super.
transcript deprivation seemingly judge tenor, record of the trial were a coercive the While the remarks in the of the court. directions by demonstrated unequivocal acquiescence argue to the court on that nor could he not, appellate Defendant did properly, during to the recess combined with that Mr. Kmiec’s him representations appeal go agreement trial made his involuntary, trial court’s initial strictures the the were not in the record then before court. Consequently the former facts since adjudication adjudication was not merits” in the a prior “prior upon appeal grounds for asserted in the instant post-conviction petition, relief specific of R.R. 3:10A-5. a within application proper (Conford, dissenting).] [Id. J.A.D., 152 223, at 265 A.2d in ground post-conviction relief a question whether a for adjudicated as on ground” “same petition constitutes the relief significance implicates it appeal because takes added direct by courts doctrine federal application of the exhaustion strict Fenton, Thus, applications. in Santana v. 685 considering habeas 750, denied, (1982), 74 459 103 S.Ct. F.2d 71 cert. U.S. (1983), rejected the defendant’s the Third Circuit L.Ed.2d 968 grounds. The court concluded that petition on exhaustion habeas court’s the state PCR habeas contention that the defendant’s right him his reopen the had denied constitutional case refusal testify had not asserted before state on his own behalf been only argued appeal, had that the On the defendant courts. direct refusing in to allow his its discretion court had abused trial Bontempo, supra, the Third Circuit con testimony. Relying on argument courts was not presented to state that “the cluded he argument now equivalent of the constitutional substantial Santana, supra, F.2d 75. 685 court....” poses federal 152 Scheidemantel, also the Third Circuit
Similarly, in
v.
Gibson
grounds,
petition
habeas
on exhaustion
the defendant’s
denied
ineffective
that Gibson’s claim of
concluding that
the extent
“[t]o
encompass
by him to
also
now considered
of counsel is
assistance
status,
juvenile
protect his
trial counsel failed to
contention that
that has
ground
been]
for relief
aspect
[is
of his claim not
(1986);
see also
adjudicated.”
F.2d
140 n.
previously
Cir.1976)
banc)
(3d
(en
(holding
Gray,
F. 2d 466
v.
Zicarelli
jury'had
represented a fair
habeas claim
that defendant’s
community
fairly presented to state
was not
cross-section of
issues).
adjudicated
jury-related
other
that considered and
courts
constitutes
imply
the federal exhaustion doctrine
do not
We
adjudications
prior
image
Rule 3:25-5 bar based on
a mirror
merits,
seek to
simply observe that both doctrines
on the
but
judg
finality
of its criminal
interest
vindicate the State’s
Moreover,
applied on the basis of
both doctrines are
ments.
fairly
adjudicat
ground
relief has
been
inquiry into whether a
potential
That
interrela
presented to the state courts.
ed
or
Precióse, supra,
modify our dicta
tionship suggests that we
context that the use of
in a different but related
when we observed
shaped or
procedural
“should not be
post-conviction relief
bars
*52
stan
slightest by
in
the federal court’s restrictive
influenced
the
477,
allowing
disallowing
review.” 129 N.J. at
or
habeas
dards for
Obviously,
federal
interests
neither state nor
Moreover, on Rule 3:22-4 as a the court’s blanket reliance PCR ineffectiveness claims not ground of all dismissed for dismissal In adjudicated appears to overbroad. its letter brief previously be court, 26, 1994, post-conviction relief April to the of assistance of counsel examples numerous of ineffective offered adjudicated appeal nor based specifically on direct claims neither
153 In solely in the trial record. on facts and evidence contained addition, documentary evidence were obtained numerous items of post-conviction proceeding, first in relief for the time implicating those docu- ineffeetive-assistance-of-counsel claims have fairly characterized as claims- that could ments cannot be Mitchell, Finally, in appeal. direct we noted been raised on 3:22-4(e) interpreted allow supra, that Rule “has courts been when the defendant petitions post-conviction for relief consider seriously infringed alleges rights that his constitutional were 585-86, A.2d 126 at 601 during proceedings.” the conviction N.J. post-conviction petition relief relies 198. Because defendant’s de- heavily on the contention that trial counsel’s ineffectiveness application of rights, aggressive him prived of his constitutional appears to be unwarranted. the Rule 3:22^4 bar to those claims familiarity proceedings and the on direct Our with the record virtually of all appeal disposition facilitates our on merits con post-conviction claims. To eliminate the relief v. rulings addressed Ylst ambiguous about state court cerns 802-04, 2590, 2594-95, Nunnemaker, 797, 115 501 U.S. S.Ct. (1991), post-convic expressly L.Ed.2d 716-17 we overrule procedural -5 on the Rule 3:22-4 and tion relief court’s reliance many, if satisfied that defendant’s claims. We are bars to dismiss most, appeal rulings overstate the effect our direct those factual opinion significance of the enhanced or underestimate Moreover, petition. the PCR basis for claims asserted fairly added facts could question whether a claim buttressed analysis is an appeal on direct often involves have been raised analysis subjective. Ironically, in instances peculiarly most required the merits less intricate than disposition on precluded required because to decide whether claim should be Moreover, adjudication procedural a state court bar. generally claim assures that of a federal constitutional merits review, and as we stated qualify claim for federal habeas will Precióse, supra, habeas review we do not “deem federal adjudications.” N.J. intrusion on our undesirable *53 special force in the context observation has A.2d 1280. That 154 pursu imposed sentences corpus petitions to review death
habeas
Finally,
reiterate
Capital Punishment Act.
we
ant
to our
require analysis and
are raised that
meritorious
issues
“when
justice
comprehensive
will best be
explanation, our traditions of
thorough
thoughtful and
consider
by decisions that reflect
served
477-78,
disposition of
contentions.”
Id. at
ation and
substantive
Ill LEGAL STANDARDS GOVERNING
DEFENDANT’S CLAIMS
allege
improp-
that the
Most of defendant’s claims
either
State
erly
exculpatory
from defendant or that defense
withheld
evidence
adequately represent defendant at trial. Accord-
counsel did not
legal
ingly,
proceed to discuss the
standards
that will be
we
types
allegations.
applied to those two
233,
(1996),
Knight,
In
v.
145 N.J.
L.Ed.2d at 507.
[Id
245-46,
642.]
678 A.2d
*54
155
Brady
analysis
often whether evidence
The focus of the
is
sufficiently
is
to the defendant’s case to come within the
“material”
Knight, supra,
Brady obligation.
In
we recounted the
State’s
by
Supreme Court to
of the test used
the United States
evolution
Brady
suppressed evidence
“material” for
determine whether
purposes:
Agurs,
427
96
at
would be
the
evidence
have
the
required
suppressed
Id,
49
at
If
has
104,
2398,
trial.”
at
96 S.Ct. at
L.Ed.2A 350.
the defendant
the
general
for
or no
would be
a
material”
reversal
only
“Brady
request,
made
request
did not
a
doubt that
“if the omitted evidence creates
reasonable
necessary
at 355.
the
Id. at
96
at
49 L.Ed.2d
112,
2402,
However,
otherwise exist.”
S.Ct.
Agurs,
held that,
distinction set forth in
abandoned the
Court subsequently
regardless
is material for
of the
of the defendant’s
evidence
request,
specificity
“if
had the evidence been
that,
there is
reasonable probability
Brady purposes
proceeding
have
the result of the
would
been different.”
defense,
disclosed to the
(plurality
Bagley,
682,
3383,
473
at
[145
246,
642.]
at
678
N.J.
Jersey
law calls for a “materiali-
respect
In
of whether New
state
v.
forth in United States
ty”
demanding
test
less
than
set
(1985),
3375,
Bagley, 473 U.S.
105 S.Ct.
whether,
law,
apply
as
Agurs
in a
context. We
to the State’s non-disclosures
specific-request
test
Bagley’s
and that the
recognize,
standard is
however, that
unitary
simpler
apply
Agurs
Bagley
standards
not be
may
materiality
between the
difference
justify
two different
tests
materiality
retention of
substantial
sufficiently
[I]
with that
extent that Marshall
is inconsistent
violations. To the
Brady
recognition,
[I]
to reflect our view that the defendant
Marshall
be understood
may
violation even under
had not
of the
materiality
Brady
in that case
established
Agurs
demanding
situations.
less
standard
specific-request
imposed
[Knight,
642.]
were so serious as 687, 104 at 80 L.Ed.2d is reliable.” Id. S.Ct. at whose result is that there Specifically, 693. the “defendant must show that, unprofessional probability for counsel’s er but reasonable rors, A proceeding would have been different. the result of probability probability sufficient undermine reasonable *56 2068, 694, at 104 at 80 in the outcome.” Id. S.Ct. confidence evaluation, making In that the court must L.Ed.2d at 698. quality quantum and of evidence. As Strickland consider the noted, weakly supported by only “a verdict or conclusion Court by than with likely to been affected errors one is more have record 2068, 696, at 104 at overwhelming support.” Id. S.Ct. 80 record at 699. L.Ed.2d turning to of the claims raised
Before
the merits
PCR,
preliminary
petition for
also address the
we
evidentiary
make to obtain an
showing
a defendant must
that
Although
requires
no
rule
that
hearing
PCR
PCR
claims.
petitions,
PCR
Rule 3:22-10
evidentiary hearings be held on
may
its discretion to
recognizes
court
exercise
the PCR
testimony
taken.
evidentiary hearings
which oral
at
conduct
158
Preciose,
462,
supra,
at
See evidentiary ordinarily grant should hear conviction relief “courts presented prima ings [case] ... if a defendant has facie prima To such a support post-conviction relief.” Ibid. establish case, the defendant must demonstrate a reasonable likelihood facie ultimately claim will succeed on the merits. See id. that his or her 609A.2d 1280.
Thus,
determining
propriety
evidentiary
of an
hearing,
ascertain whether the defendant
the PCR court should
post-conviction
relief if the facts were viewed
would be entitled
462-63,
light
“in
favorable to defendant.”
id. at
609
most
See
inquiry
affirmatively,
If
then the
A .2d 1280.
is answered
generally
evidentiary hearing
to an
in order
defendant
is entitled
observe, however,
prove
allegations.
that there is a
We
If
pragmatic dimension to the PCR court’s determination.
evidentiary hearing
perceives
holding
court
an
will not aid the
analysis
post-
court’s
of whether the defendant
is entitled to
Flores,
586, 590,
relief,
N.J.Super.
550
conviction
see State v.
denied,
(App.Div.1988),
A.2d 1220
A .2d752
115 N.J.
certif.
(1989),
vague,
allegations
or that the defendant’s
are too
concluso
Preciose,
ry,
speculative
evidentiary hearing,
see
or
to warrant
Odom,
462-64,
1280;
supra,
In in this to an made case, evidentiary hearing that an should not be we further note investigate granted purpose permitting for the a defendant to whether the State has failed to deliver discoverable materials purpose evidentiary hearing permit the defendant. The of an is to prove improperly that he convicted or the defendant to or she was sentenced; question it is not an occasion for the defendant to grounds for witnesses in an indiscriminate search for additional V, infra, explain proper post-conviction relief. In we Section *57 discovery obtaining proceedings. means for in PCR
IV THE OF DEFENDANT’S PETITION MERITS RELIEF
FOR POST-CONVICTION TO THE ERRORS RELATING TESTIMONY A. ALLEGED BILLY WAYNE MCKINNON OF I, testimony supra, of co- Marshall that the
We observed
incriminating
Billy Wayne McKinnon
the most
“was
Marshall,”
28,
85,
A.2d
and that
123 N.J. at
against
evidence
trial,”
at
id. at
credibility was the “most critical issue
McKinnon’s
directly
contradicted Marshall’s
1. McKinnon’s Plea E.23) A.76-77, A.83, B.5,
(A.72, Brady subeategory alleged include in this four The six-claims failure to certain docu- consisting of the disclose violations State’s concerning by the on behalf of expenses incurred State ments family. claim of ineffective his Also included one McKinnon or renew, prior to failure to relating counsel to counsel’s assistance discovery after the testimony, motion for McKinnon’s any discovery concerning financial had failed to disclose State The final claim behalf. on McKinnon’s accommodations made *58 subcategory alleges plea agree- McKinnon’s in this addressed rights, because it ment itself violated defendant’s constitutional testimony provide perjured gave McKinnon “irresistible reasons to against his co-defendants.” I, McKinnon, conspir recounted in Marshall indicted for
As we
knowingly
acy
purposely
Maria Marshall and for
or
to murder
pled guilty
causing
accomplice,
of Maria Marshall as an
death
murder,
only
conspiracy to commit
and was sentenced to five
to
years imprisonment
exchange
testimony
in
at trial.
for his
See
27, 41,
at
recommend term not excess of five be years parole served for at the State Prison and the Clinton, security purposes prosecutor’s at officewould recommend he be the earliest date. State paroled possible agreed to his to a location for and to also relocate safe their family protection, program. their into the support entry witness-protection [Id. 85.] at 586A.2d 41, We also observed that subjected McKinnon was to extensive defense counsel cross-examination, emphasiz- ing generous bargain, terms of his which would allow particularly plea [Co-defendant] McKinnon to soon of trial. be after paroled completion counsel McKinnon to concede that the State would not have Thompson’s pressed generous if McKin- “shooter,” offered McKinnon such terms he had been the acknowledged non that no evidence other than his testimony implicated Thompson
in the murder. counsel McKinnon about his Thompson’s questioned persistently implying of that McKinnon himself homicide, role explanation Thompson’s had murdered Mrs. Marshall and had fabricated involvement order Thompson’s negotiate bargain. a favorable plea
[Id 85.] A 586 .2d I, materiality In we considered the of the nondisclo Marshall expenses by concerning sure of certain documents incurred family determined that “there State on behalf McKinnon’s impeachment possibility no reasonable the further [wa]s by support family McKinnon reference to the financial his received from the State would have affected the verdict.” Id. at briefly leading to our A.2d 85. We recount the circumstances adjudication appeal provide direct context of that issue on for similar claims before us on PCR our consideration review. discovery pretrial motion included a demand that
Defendant’s the State disclose given or on behalf and all considerations or of consideration [a]ny promises witnesses. “consideration”, the witnesses or or expected hoped By *59 anything, bargained not, to whether for or which refers absolutely arguably to a to to could be of or use witness or of concern the persons value * * * grants; including or criminal, but not limited to civil tax
witness, immunity anything arguably or interest, and else which could reveal an motive bias the against of the or or act as an inducement to witness in favor the defense plaintiff or testimony. color testify [Id 85.] 171, at 586 A.2d concluded, years granted Approximately three after the trial we hearing to motion for a determine whether State’s defendant’s failure to disclose certain documents had violated the strictures of I, 171-72, Brady, supra, 123 N.J. at supra. See Marshall 586 hearing, During of trial court A.2d 85. the course that correspondence produce its file for ordered that the State entire inspection. the file and what Defense counsel reviewed discovered Brady concerning expenses appeared material to be additional family. of See by incurred the State on behalf McKinnon his 188-89, 181, 205, Specifically, A.2d 85. counsel found id. at 586 County Chief Detectives had two letters in which the Ocean Jersey Police requested from New State reimbursement family during and to otherwise assist McKinnon’s monies to house letters”). (the 205, A.2d trial “McKinnon See id. 586 85. produced prior to argued Defendant that had letters been testimony, impeach they could have been used to his McKinnon’s conceivably could have affected the outcome of credibility, which trial. ibid. See We determined that the of McKinnon further [wa]s impeachment by there no reasonable possibility from would have financial his received the State
reference to the support family testifying to obtain a interest affected McKinnon’s fundamental the verdict. against charges him from murder thereby reduction of conspiracy, capital reducing to a five-year from a death sentence his maximum possible punishment 162 to the facts were clearly conveyed Those with no disqualifier. term parole prison
jury during of McKinnon. Any possible cross-examination defense counsel’s revelation that from the additional McKinnon’s credibility effect on incremental his would have been merely made to family were support financial accommodations undertaking bargain cumulative____ included an prosecu McKinnon’s plea Protection in the Federal Witness McKinnon’s acceptance tor recommend §§ authorizes the program, payment which -28, specifically 18 U.S.C.A see witness. living of a immediate member family protected for an of basic expenses 3521(b)(1)(D). § that there was no reasonable possibility We conclude 18 U.S.C.A We had the letters been disclosed. have arisen verdict would different reject to have disclosed the the State’s failure claim therefore defendant’s [State v.] Carter, conviction. See reversal of defendant’s McKinnon letters requires (1982) ]. A2d. 1280 [449 ... 91 114-15 [86,] N.J. 85.] A.2d [123 N.J. at above, post-conviction petition for As noted relating the nondisclosure Brady four claims relief includes expenses incurred on behalf concerning certain documents allege nondis claims family. Two of those and his McKinnon letters; under claims are dismissed those of the McKinnon closure allege the nondisclosure remaining two claims 3:22-5. The Rule Investigator Brandt Susan memorandum from State an internal meals concerning lodging and Turnbach Edward to Prosecutor (the May family 23 and provided to McKinnon’s in memorandum”), accounting expenses “Brandt *60 to in dates and referred by Investigator Brandt on those curred the reject claims for those two memorandum. We the Brandt I, rejected, supra, defendant’s in Marshall that we same reasons letters: of the McKinnon the nondisclosure claims based on verdict possibility that a different no reasonable [i]s “[T]here 123 N.J. been disclosed.” [documents] arisen had the would have I, “[a]ny in Marshall explained we A.2d 85. As credibility the from on possible incremental effect McKinnon’s made to were that financial accommodations revelation additional merely Ibid cumulative.” family have been support his would discovery of on the belated argues, based Defendant also memorandum, and the fact and the Brandt the McKinnon letters accounting referred expense provided the has never that State memorandum, to an evidentia- he is entitled that to in the Brandt subpoena testimony hearing at he “can of ry [Ocean which County representatives ... Office] [to] Prosecutor’s establish by were of benefits McKinnon received which hidden extent reject speculative, claim note We defendant’s as and we State.” alleged immaterial. nondisclosure would be See ibid. that reject claim of ineffective assistance of coun- We also defendant’s discovery failure to sel based counsel’s renew seeking accommodations made on motion disclosure financial furnish any failed to such of McKinnon after State behalf testimony. discovery prior to McKinnon’s con- defendant We any regard failure counsel immaterial clude trial, immateriality in view of the the outcome information. nondisclosure such subcategory in this contends that
The final claim agreement plea with McKinnon violated defendant’s due- State’s rights allegedly “provided McKinnon irresisti process because it provide testimony against his perjured co-defen ble reasons wholly merit. We determine that claim is without dants.” may to lie does establish That McKinnon have been motivated concerning as perjured in fact himself material that McKinnon addition, testimony against In pects of his Marshall. precedent preclude the from legal that would State
cites no exchange plea agreement with co-defendant entering into one co-defendants, testimony against nor her other for his or truthful regard, plea that the any. In that we note State’s are we aware on McKinnon’s “truth agreement with McKinnon was conditioned testimony.” cooperation ... and ... truthful ful Credibility Relating to McKinnon’s 2. Claims Other A.99-101, B.10, B.41, B.74-77, A.75, A.80, A.82, B.6, (A.14, B.84- F.23-24) E.15, F.6, alleging myriad of other claims that various Defendant raises a impeachment credi- of McKinnon’s precluded the effective errors subcategory include seven bility. twenty-three claims this *61 misconduct, violations, discovery prosecutorial one claim of alleged counsel, and three allegations of ineffective assistance twelve that the claims lack We all of “miscellaneous” claims. determine merit. allegation Brady claims include an that
Defendant's possession concerning in its the State failed to disclose information cooperation with law-enforcement authorities federal McKinnon’s juris investigations in unrelated other in connection with criminal coopera argues fact of that the McKinnon’s dictions. Defendant authorities, charges or not based on filed tion with federal whether him, improperly suppressed. against We was discoverable information, existed, disagree. that if it would We conclude such to the of the trial. also note have been immaterial outcome We Churchill, supervised investigation who Lieutenant James Marshall, prepared in an into the murder of Maria stated affidavit that he “not aware that at the direction of PCR court investigations against any charges pending or criminal there were FBI, his with or at the cooperation McKinnon the time of entry program.” into the witness We are time his federal satisfied, therefore, suppress that the did not other-crimes State impeach have McKinnon. We evidence that could been used reject request for an therefore defendant’s claim related evidentiary reject speculative hearing. as We also suppressed evidence that McKinnon was claim the State dangerous, not and we observe that such evidence would have jury’s knowledge of the in view of affected the outcome trial plot in a co-conspirator that McKinnon was a to commit murder. alleges produce also that the State failed to Defendant “original prepared Churchill and Detective notes” Lieutenant interrogations of in Decem during their McKinnon John Petracca certification the PCR court ber 1984. In view of State’s contemporaneous *62 McKinnon, cross-examining can- prior to because *63 alleges improperly Specifically, defendant that the State withheld credibility Thompson’s pertaining to the of alibi wit information argues to Angela ness Defendant that he was entitled Gallien. theory discrediting Thomp on that such information the evidence bolstering had the effect of McKinnon’s son’s alibi witnesses credibility enhancing wit credibility, while evidence the of alibi discrediting effect McKinnon. there nesses had the of Defendant deprived argues provide fore that the to information failure such ability are that prepare him of the to his defense. We satisfied noted, jury apparently merit. the defendant’s claim without As rejected testimony against accepted Thompson and McKinnon’s Thus, Thompson’s convicting alibi defense while Marshall. pertaining information to credibili nondisclosure of additional ty Angela Thompson’s of or other alibi would not Gallien witnesses respect trial of For have affected the outcome of the Marshall. reasons, prose the same we dismiss defendant’s related claims of cutorial misconduct and trial error in connection with the State’s impeachment of Gallien.
Defendant asserts two claims of ineffective assistance alleging counsel failed McKinnon counsel to cross-examine adequately concerning for and the preparation McKinnon’s trial length prior giving interrogation taped McKinnon’s to state investigators. argues ment areas of to Defendant those taped inquiry have that McKinnon’s state would demonstrated investigators testimony coached ment to and his trial consisted of theory and rehearsed tailored to the State’s statements case. conclude that claims be dismissed on the We both should hearing. evidentiary merits Direct and without cross-examina- met established that McKinnon had with State tion of McKinnon separate prior giving or occasions investigators three four statement, Thomp- and taped and counsel both defendant his concerning the length McKinnon at circum- son cross-examined addition, Thomp- leading his statement. In up to formal stances questioned specifically about amount counsel McKinnon son’s people going “spen[t] had the law enforcement of time he with finally story it reduced” smoothing it out before was over the and statement, repeatedly suggested that of a and to the form formal by asking investigators had McKinnon’s statement tailored questions. Concerning extent of McKinnon’s leading him that McKinnon pretrial preparation, Marshall’s counsel elicited statement, jury taped grand agreement, and plea had his reviewed prior testifying, Thompson’s insinuated testimony counsel Thus, jury testimony was well-rehearsed. McKinnon’s taped statement of the circumstances McKinnon’s was informed pretrial preparation. nature of his request alleges also that counsel’s failure Defendant taped tape recording of prior to trial the McKinnon’s and obtain statement, supplied compare it the written version with *64 concerning his prior to trial discovery, and to interview McKinnon statement, adequate preparation a lack of taped demonstrate the nuances argues had counsel listened to trial. Defendant that recording, been speech tape he would have better the investigators the and State’s prepared to cross-examine McKinnon product the concerning statement was whether McKinnon’s any alleged by investigators. that prompting We are satisfied immaterial to the regard of counsel in that was ineffectiveness claims and therefore dismiss the without outcome of trial we noted, and evidentiary hearing. counsel for both defendant an As length state about his Thompson cross-examined McKinnon investigators lawyers inquired whether the State’s ment. Both prior taking to his information supplied had McKinnon with prompted during him that statement. or coached or statement had into evidence claims concern the admission Four of defendant’s jury- taped grand transcripts of McKinnon's statement item testimony. that neither of evidence Defendant asserts object admission counsel’s failure to to their admissible and that transcripts improperly bolstered prejudiced because the credibility. testimony and Defendant also asserts McKinnon’s hearing evidentiary to establish that he is entitled to object strategic failing to to the admis- reason for counsel had no claims are without merit. sion of those items. Defendant’s noted, throughout McKin As times we have at various Thompson non’s counsel for both defendant and cross-examination statement, taped grand attempted to establish McKinnon’s During ques jury testimony testimony, and trial were coached. counsel, objected, arguing tioning Thompson’s prosecutor taped sought portions if counsel to introduce McKinnon’s investigators’ leading nature of the statement to demonstrate Al should admitted. questions, then the whole statement be objected though Thompson and defendant to the counsel for both exhibit, as a being admitted into evidence defense statement objected admitting into at that neither the statement evidence Similarly, Thompson’s when counsel time as exhibit. State grand testimony, concerning jury McKinnon his cross-examined transcript proceeding of that into evidence the State offered objection by either counsel. without defense view, admitting grand jury In our into evidence McKinnon’s testimony entirely proper taped because of the statement was sought counsel for defendants to elicit extent which both testimony concerning parts of those McKinnon’s at trial of both James, 538, 554, v. 144 N.J. 677 A.2d documents. See State (“When (1996) part on cross-examination as to witness testifies conversation, statement, occurrence, of a transaction or under calling ‘completeness’ party allowed doctrine witness is thereof, it elicit on examination ‘the whole to the extent redirect subject specific matter and concerns the relates the same *65 ”) Archibald, opened Virgin 987 up.’ (quoting matter Islands v.
169 Walker, 180, (3d Cir.1993)); 421 States v. F.2d F.2d 188 United (3d denied, 2261, Cir.), cert. 399 U.S. 90 S.Ct. (1970). are therefore satisfied that defendant’s L.Ed. 2d 799 We regard in of counsel that are of ineffective assistance claims reject claims that merit and we also defendant’s related without constituted reversible error. the admission of documents subcategory allega- four last of claims in this includes set arising of counsel from counsel’s tions of ineffective assistance independent investigate and evidence alleged failure to obtain testimony credibility. or determine impeaching McKinnon’s We merit. all four claims are without that produce at trial claim involves counsel’s failure
One demonstrating purchased not that McKinnon could have evidence City area gloves from a store in the Atlantic late rubber hardware murder, evening night of the such stores in the on because p.m. testimony by 5:30 note that McKinnon’s closed 5:00 or We gloves concerning place purchase time of of the was Thus, unlikely investigation counsel that vague. it is also note counsel for regard would have been useful. We effectively regarding McKinnon his Thompson cross-examined that McKin gloves of the and remarked summation purchase story gloves are therefore non’s about believable. We prima case that defendant has failed establish satisfied facie prejudice lack of assistance in view of the clear of ineffective gloves. any regard failure counsel failure to Defendant’s second claim involves counsel’s Rikeman, testimony who had told State present of James bearing investigators that he observed a car an out-of-state Police high rate tag Oyster Area at a exit the Creek Picnic license night of the murder. Rikeman’s statement speed testimony McKinnon investigators McKinnon’s contradicted proceeded picnic slowly and then had pulled area had out speed, per miles” Parkway at the Garden State “normal onto trial, however, testimony his Rikeman testified hour. Had cumulative, testimony in view of the merely have been would *66 170 indicating a that she had observed Christine Hilton
State’s witness at 1:00 a.m. “flying out of the rest area” about white Cadillac come relied on We note also trial counsel September 7th. lied, argue had testimony in summation to that McKinnon Hilton’s story, significant also about only about the events his but Thus, important facts. defendant’s claim of ineffective the less merit. is without assistance reject claim also defendant’s of ineffective assistance
We attempt McKinnon about concerning to cross-examine counsel’s alleged in unrelated acts. On direct his involvement fraudulent appeal, properly determined that the trial court had excluded we regard. McKinnon in that See counsel’s cross-examination of I, now supra, N.J. 85. Defendant Marshall A.2d adequate argues failure to establish an foundation that counsel’s proposed provide failure to for the cross-examination his in the discovery concerning to the McKinnon’s involvement State of counsel. We alleged fraud constitutes ineffective assistance proposed not excluded be disagree. cross-examination was foundation; discovery a it was cause of a failure of or failure of alleged subject a fraud was excluded because the neither involving part plan or criminal conviction nor of a common scheme Marshall, line of the murder Mrs. and also because jury. questioning capacity had See ibid. mislead change presented has no Defendant new information would our determination. earlier alleges subcategory claim in that counsel
Defendant’s final this failing to a was ineffective for obtain statement from Ransdell Cumber, Keene, attorney co-conspirator concerning an Robert immunity. alleged and McKinnon about discussion between Keene during than the fact that counsel elicited cross-examination Other jail in met with of McKinnon that McKinnon had Keene while Louisiana, any documentation, present as a defendant fails such Thus, Keene, support claim. we statement from prima has case conclude that defendant failed establish facie of counsel. ineffective assistance Telephone to Robert Cumber McKinnon’s Call 3. F.4)
(B.68, testimony, McKinnon’s counsel and After the conclusion of co- placed telephone call to that McKinnon had court learned being from or so after excused Robert Cumber hour provided counsel and stand. Cumber’s counsel the witness *67 setting the content of an affidavit Cumber forth court with affidavit, identify- person a According to conversation. Cumber’s Billy had and said Wayne McKinnon called Cumber ing himself as caused, had all the trouble” he sorry that he “was caller “make told the encouraged Cumber to a deal.” Cumber lies that had told been used and McKinnon [Cumber] “that had was caller “then said that he [Cumber’s] about involvement.” already telling and he has sorry he now the truth but that was anything” about did not know [Cumber] stated in Court that Maria Marshall. plan to kill motion Thompson made a for both defendant and
Counsel cross- the stand for trial court to recall McKinnon to before the agreed The court concerning the call to Cumber. examination to telephone was relevant McKinnon’s counsel that the call with cross- to McKinnon for further credibility, but declined recall Instead, could court ruled that defense counsel examination. of the case. as at the conclusion State’s call McKinnon a witness sought ruling Thompson then a Counsel for both defendant ask they permitted to McKinnon concerning whether would be The court a hostile witness. leading questions or treat him as ques- ruling about the manner prospective to make a declined tioning ground possible it examination on the that was objection. proceed Neither defendant’s would without McKinnon a witness. Thompson’s called McKinnon as counsel nor counsel to McKinnon’s raises two claims related Defendant now First, to failure defendant claims that counsel’s call to Cumber. hearing concerning the call request McKinnon a to examine Second, of counsel. ineffective assistance constituted hearing failure to conduct such the trial court’s claims regard wholly as those claims reversible error. We constituted to recall McKinnon for merit view of counsel’s motion without cross-examination, ruling the court’s that counsel was free further witness, and failure to do so. McKinnon counsel’s We to call as only McKinnon’s affidavit concerns testi- also note Cumber’s and is mony involvement the murder silent about Cumber’s testimony concerning regarding the truthfulness of McKinnon’s We are therefore satisfied that defendant’s involvement. separate either trial or at a to examine McKinnon failure regarding immaterial to the hearing his call Cumber of the trial. outcome Penalty Impact on the Phase
4.
(E.10) category alleges in this that the
Defendant’s final claim have failure to all of the evidence that could been State’s disclose impeach and Kraushaar vio State’s witnesses McKinnon used right penalty-phase a fair and trial lated defendant’s reliable "pb]ecause right reject a jury’s inherent death sentence *68 ‘lingering’ of or ‘residual’ We have deter on the basis doubt.” mined, appeal appeal, in this and on direct State’s both McKinnon, impeachment to the suppression of evidence related I, 36-38; 159-65, supra, supra at A .2d at Marshall 123 see 690 Kraushaar, 205-07, impeachment and the at 586 A.2d N.J. I, 200-05, 56-59; supra, A.2d at 123 see Marshall infra 199-205, 85, was immaterial to the outcome of N.J. at 586 A.2d finding applies trial. are satisfied that that to the defendant’s We phase guilt phase. as to penalty of the trial as well DEFENSE B. ALLEGED ERRORS RELATING TO INVES- TIGATOR RUSSELL KOLINS B.223) (A. B.80-83, B.143, B.195, B.212, 10, B.12, B.70-73, B.183, category trial counsel’s em- The fifteen claims in this concern investigator private of Russell as a on behalf of ployment Kolins merits, Adjudicating on the we conclude the claims defendant. evidentiary be dismissed without that all of them should Kolins’s involvement hearing. recount the circumstances of We provide for our discussion of defendant’s the ease to context claims. examination that Kolins had been
Marshall testified on direct counsel, Zeitz, to conduct an by trial Glenn retained Marshall, According to investigation on Marshall’s behalf. “[sjometime [September] [Kolins] 22nd it was decided that after to, just day guess, I go spend Louisiana] [in should down around, going on down investigate or to check see what was spoken that he had with Kolins there.” Marshall testified during conversation telephone September 26 and learned on person and that that Robert had been arrested Cumber “Jimmy actually Billy Wayne Davis” was Marshall knew as question whether “it response McKinnon. In to defense counsel’s anyone purpose agreed suggested by you or that the ever or [was] way, shape being any was to in or form down there [Kolins] anyone on McKinnon’s behalf to get together with McKinnon or testified, “Absolutely any story,” not.” kind of Marshall create telephone conver- cross-examined Marshall about his The State suggested that Kolins had prosecutor Kolins. The sation with purported prepared by McKinnon that Marshall a statement read Jersey impheating explain McKinnon’s activities New without Marshall’s murder. Mar- McKinnon or Marshall Maria either to him read McKinnon’s statement shall denied that Kolins had telephone call. during September Kolins, According to he testified on Marshall’s behalf.
Kolins purpose September on 26 for had flown to Louisiana investigate his wife. interviewing person Marshall had hired to “Jimmy Davis” and had been testified that he had met Kolins spoke Billy Wayne McKinnon. Kolins with that he was informed inform him by telephone p.m. September 26 to at 6:30 Marshall investigation request permission developments in the and to *69 Kolins, According about an stay in to his Louisiana. to extend Marshall, with Kolins conversation or after he ended his hour two exculpatory attorney the statement McKinnon’s from received on and cross- Kolins testified both direct prepared by McKinnon. the contents McKinnon’s examination that he had discussed September 26. or Zeitz statement with either Marshall Kolins, Kolins read During the State’s cross-examination statement, According to the McKinnon’s statement into evidence. April May 1984 to an hired McKinnon in or conduct Marshall wife, Jersey investigation of his and McKinnon travelled New twice, September, in in to conduct the once and once June had sent investigation. The statement related that Marshall early money totalling investiga- in the two orders $5500 McKinnon tion, meeting, last at which time paid him in cash at their $800 “things fine” and that Marshall told McKinnon that were Marshall any money. pay McKinnon more McKinnon could not afford to day, Jersey Jersey and later learned that New left New the next investigating Maria authorities were Louisiana law-enforcement paragraph prepared final of McKinnon’s Marshall’s death. The exculpated and Marshall: statement both McKinnon night [Harrah’s] I Marshall at Marina Casino Atlantic City Since the saw Rob or I have not or heard from him since. 8:30 9:00 o’clock seen p.m., approximately during concerning I Marshall and had his or At no time conversation Rob any suggested or intimated that he would like to her activities it ever requested, He to me to be of his He related me the opposite. wife. dispose quite appeared well-organized, individual who is with his ties lifestyle family settled happy having might an affair but had a that his wife have been which would suspicion an [him] to someone to conduct unbiased and cause seek outside community investigation of her activities. impartial statement, Following the admission into evidence McKinnon’s Thompson application made an to the counsel for co-defendant on the statement. court recall McKinnon cross-examination objected prosecutor ground on the that the State had not had opportunity to conduct a direct examination of McKinnon lengthy colloquy concerning concerning the statement. A ensued produce point failure of the statement at an earlier Zeitz explained he had the trial. Zeitz not had statement *70 making every been beginning, [he had] and that “from earlier to rule at that time try get it.” The court declined effort to and McKinnon and ordered State application to recall on the of Kolins. its cross-examination continue the whereabouts question Kolins about proceeded to
The State the time that Kolins had prepared statement from McKinnon’s until the time that September in document received the that the document was at trial. Kolins testified testified Kolins he moved from one misplaced when that had been kept a box had February and that he or March to another residence testimony. Kolins also days prior his until a few found it state- giving copy of McKinnon’s did not recall stated that he Louisiana, although he ac- returning from Zeitz after ment to the statement. Kolins may have seen knowledged that counsel intentionally the statement. hidden that he had denied argument on testimony, again the court heard of all At the close argued The State to recall McKinnon. Thompson’s application opportunity to cross-examine Thompson given the if were statement, permitted to should be the State McKinnon on concerning the simi- for further cross-examination recall Marshall Marshall’s “suicide statement and larity McKinnon’s between or Marshall objected having either McKinnon tape.” Zeitz and Mar- recalled, statement contending that whether McKinnon’s that the argument and was a matter tape were similar shall’s evidence, draw its could having both statements jury, received own conclusions. him Kolins had shown explained that counsel also
Defense year ago, long ago, over a “a time prepared statement McKinnon’s thing then and I said since asking him to locate the and I’ve been I have to continue I think again, and don’t it and over over pointed out that even prosecutor it.” The defending myself about the state- true, that he located had testified Kolins if that were have testimony, would which Monday prior to his ment on therefore contend- The State testifying. Marshall was when been the statement effectively had withheld counsel ed that Marshall’s testifying. The court ruled that finished until Marshall was after faultless, they Thompson were Thompson’s counsel because opportunity pursue further cross-examination have should that, in subject prepared of his statement on the of McKinnon permitted be to conduct justice, the State would interest of subject. Despite of Marshall on that cross-examination further however, Thompson’s counsel nor State ruling, neither *71 or Marshall. recalled McKinnon involving defense counsel’s first defendant’s claims
We address timely in a manner the statement produce to and failure obtain September gave in 1984. Defendant to Kolins that McKinnon precluded a argues to obtain the statement that counsel’s failure McKinnon, and demon- adequate full and cross-examination preparation” for trial. Defendant “pervasive his lack of strates copy provide to a argues that failure State also counsel’s integrity. timely compromised in counsel’s fashion statement are without merit that claims We conclude view, evidentiary hearing. any In our not an and do warrant misfiling with the or of counsel in connection ineffectiveness not have a misplacement statement could had of McKinnon’s trial. trial on the outcome of defendant’s material effect that, although copy of McKinnon’s statement was reveals a record by until both McKinnon and Marshall produced Zeitz after testified, already knew
had Marshall’s counsel and State both that McKinnon had testified after of or had seen the statement. Jersey in New authorities were he learned that law-enforcement murder, exculpatory investigating the he fabricated Louisiana presence Jersey. He explain his in New purporting to statement given was to Kolins. On cross- also testified that that statement examination, that the statement Zeitz had elicited from McKinnon had not entirely and that McKinnon McKinnon’s creation was creating testimony, anyone in In view of that with it. collaborated ultimately placed in evidence and and the statement was because record, into aré that its late admission read into we satisfied jury the state- immaterial. The had the benefit of evidence was itself, opportunity present arguments to ment counsel had the jury in concerning McKinnon’s statement to summation. alleging claims that the State also dismiss defendant’s
We by suggest strategy impugning integrity in Kolins’s engaged a conspiracy up Maria ing Kolins was involved in a to cover receipt of McKinnon’s fabri Marshall’s murder that Kolins’s conspiracy. cated was in furtherance of that Defendant statement first that his counsel should have moved in limine contends the statement evidence of McKinnon’s statement because exclude charged prepared conspiracy after the of the murder as dates contends counsel was indictment. Defendant also response alleged the State ineffective his efforts integrity. alleges claim that Zeitz impugn Kolins’s One such response to requested a the inference should have mistrial arrange story a for Mar travelled to Louisiana to cover Kolins called alleges shall. claim that counsel should have Another prior calling have Marshall and should Kolins as witness of Kolins’s Kolins rather than Marshall nature elicited from In purpose trip and the of Kolins’s to .Louisiana. instructions claim, removed third defendant contends that Zeitz should have *72 personally the testify from the case to that he had directed himself investigation scope that it not been his or of Kolins’s and had A story to fourth intention secure a cover Marshall. Kolins’s by prosecutor claim a comment the to defense counsel concerns jury instructed presence regarding the of the whether Zeitz had fifth claim investigation an in Louisiana. And a Kolins to conduct alleges sister as a that counsel should have called McKinnon’s given that statement to to establish she had McKinnon’s witness spoke by telephone Kolins with Marshall. Kolins after and that that all of claims are without merit We determine those by any prima a failed to establish of those claims defendant has counsel. trial record of ineffective assistance of The case facie McKinnon, that, during the of both examination reveals State’s Thompson’s objected ground that on the Marshall’s and counsel prepared subsequent to the dates statement had been McKinnon’s addition, vigorously alleged conspiracy. In both counsel given the had Kolins objected to inference that McKinnon the conspiracy up the a to cover furtherance of fabricated statement argued the State’s examination McKinnon Zeitz that murder. over the head of “to some kind of shadow could not be used cast response, prosecutor that investigator.” In the stated the defense only that made “[McKinnon] he elicit from McKinnon intended to alleging story. it that’s it. I am not up gave to [Kolins] He story.” Following that up him make told to [Kolins] showing that colloquy, the there was no court ruled testimony proffered We conclude that was inadmissible. has ruling unquestionably and that defendant court’s correct of counsel connection to ineffective assistance failed establish concerning proffer testimony McKinnon’s statement. with the addition, second-guess tactical deci- decline to counsel’s In we Kolins, prior calling as to to elicit to call Marshall a witness sions Louisiana, purpose investigation in of Kolins’s from Marshall as also to call McKinnon’s sister a witness. We and to decline reject wholly allegation merit that counsel could as without making inappro- prevented prosecutor from somehow have Louisiana, note priate concerning trip Kolins’s to and we remark fleeting insignificant. allega- that remark was both Zeitz taken the extreme measure of remov- tion that should have testify role defense ing himself as counsel to about Kolins’s as nothing in the investigator equally without merit. We discern suggestion support defendant’s that counsel should have record representation testify. his in order ended reject allegation of also ineffective assistance We involving failure move for a mistrial or seek counsel counsel’s following prosecutor allegedly comment other relief During denigrate Zeitz and Kolins. defense counsel’s intended of the insurance examiner who examined defen- cross-examination morning September dant and Maria Marshall on *73 knew location of the counsel asked whether the witness completed original screening form that he had for defen- medical Falls, learning the form in Upon dant. that Sioux South company, paused the insurance counsel to Dakota at the offices of in obtaining the Court’s assistance the document. At that request hearing jury, “Why point prosecutor remarked you don’t send Russ Kolins.” Defendant contends that counsel’s prosecutor’s following relief remark constituted failure to seek prosecutor’s disagree. The assistance of counsel. We ineffective remark, materially have fleeting although inappropriate, could not the outcome of the trial. affected allegation of ineffective of counsel involves
Another assistance during McKinnon that elicitation cross-examination of Zeitz’s by Jersey a car New State tampered McKinnon had with rented investigate to who were in Louisiana law-enforcement authorities that in a McKinnon testified while he was restaurant the murder. Kolins, Murphy Investigators and Church- with his wife State then went to ill entered restaurant. McKinnon outside had air out tires of the car he parking lot and let the argues Investigators. Defendant was rented the State believed testimony Kolins’s credi- that Zeitz’s elicitation of that diminished assistance of counsel. bility and therefore constitutes ineffective disagree. testify McKinnon did not that Kolins was involved We tampering, question decline counsel’s tactical and we tampered he had with to elicit McKinnon’s admission that decision during direct and cross- car. We also note both the State’s Kolins, any emphatically involvement Kolins denied examination tampering with the State’s car. McKinnon’s should not have Defendant also contends that counsel permitted perform investigative on behalf of co- Kolins work Thompson, Thompson’s adverse because interests were wholly merit. reject We that claim as without Marshall’s. during investigation his on behalf of Marshall testified Kolins ultimately helpful Thomp he be learned information would request Thompson’s explained that at the son’s defense. Kolins Zeitz, he later shared that permission and with the counsel witnesses, information, alibi with Thompson’s which concerned *74 second-guess will not counsel’s decision Thompson’s counsel. We impeachment of defendant’s useful to to share information McKinnon, being accuser, helpful to a co-defendant chief that nature A tactical decision of jointly tried with defendant. not, view, performance deficient counsel. in our constitute does pretrial investigation concern a of defendant’s claims
Two by officers State law-enforcement of Kolins that was conducted private had as a they that Kolins been retained after learned allega an investigator The claims include on behalf of defendant. produce discovery to of a violation based the State’s failure tion allegation investigation, and police reports of that request counsel based on Zeitz’s failure ineffective assistance of police reports. We conclude that prior obtain trial those or entirely contentions are without merit. State’s both of those materially investigative reports disclose no information on Kolins affecting credibility, fact Kolins’s mere that Kolins investigated by no than reveals more that State State thorough preparation for could not engaged in trial. Defendant request prejudiced counsel’s failure to which have been capacity no the trial. had affect allegations
Lastly, of ineffective we address defendant’s relating to Zeitz’s continued reliance on assistance of counsel despite investigator Kolins as an and witness for defense statement, al misplacement Kolins’s of McKinnon’s the State’s integrity, and testi leged impugn efforts to Kolins’s McKinnon’s mony concerning tampering with the car. Even as State’s suming, arguendo, Zeitz’s continued reliance on Kolins was circumstances, of those facts and we would unreasonable view prima a ease conclude that defendant has failed establish facie fails to demon of ineffective assistance counsel. Defendant continued reliance on Kolins had strate either Zeitz’s or that material effect on the outcome of the trial detrimental investigator probably different would have Zeitz’s retention to a different led result. RELATING TO THE “SUICIDE ALLEGED ERRORS
C. FROM DEFENDANT’S AND ITEMS SEIZED TAPE” ROOM MOTEL thirty concerning the admission has raised claims
Defendant during an tape of an audio defendant recorded into evidence *75 concerning seizure attempt and related issues apparent suicide those motel The factual context for of items from his room. Court, prior opinion in a this see has been set forth claims 39-41, I, 62-73, A.2d need supra, 123 N.J. at and Marshall briefly on their only here. We address the claims be summarized they should be dismissed without merits and determine that evidentiary hearing. 27, 1984, police September approximately one week after
On knowledge his their connection had confronted defendant with McKinnon, checked police were informed that defendant had Lakewood, Jersey. in Investi- Motel New into the Best Western at motel. At 11:30 immediately surveillance gators established his and to the front office of p.m., defendant left room went him Investigator and observed Mohel followed defendant motel. room, After to his Mohel at the front desk. defendant returned deposited had letters spoke clerk who said that defendant to the into the tray. testified that he looked outgoing mail Mohel Joseph One was addressed to tray and saw two letters there. envelope, Mohel observed Dougherty, Esq. the outside of the On my opened only the event of death.” writing: “To be assis- immediately telephoned and seized the letters Mohel arrived, they officers entered tance. When uniformed asleep. him Mohel woke room and found there he had anything. taken Defendant said that him if he had asked soda, that cup in a but sleeping a medicine put a lethal dose of it had drinking said that asleep before it. Defendant he had fallen had time his wife commit suicide at the exact his intention to been murdered, overslept. had but he been envelopes. open warrant The search State obtained investigators found Dougherty, envelope Inside the addressed estate, tape. letter, and an audio The to sell some real a contract defendant, forth previously and we have set tape dictated its substance. with his intention to leave Kraushaar, Marshall’s discussed relationship tape * * * two- of debt that “accelerated to almost month,” Maria “within a his “spiral” * * * just dollar[s] off, I was determined to but pay thousand hundred hiring investigate [McKinnon] to to climb and his reasons for out,” couldn’t seem acknowledged $5,500 had sent McKinnon Marshall he Maria. On the tape night given him an additional at Harrah’s the and had two installments $800 Dougherty on the with to how various Marshall instructed tape respect homicide. matters should be handled. Marshall business, financial, expressed personal to be indicted and convicted to take his own life because he his intention expected though was innocent. murder,
for his wife’s
even
he
(first
[Id.
original.) ]
alteration in
40-41,
(A.74, hearing determine pretrial suppression held a The trial court including admissibility envelope, of the contents of the seized *76 tape. A crucial issue was whether the initial seizure the audio attempted envelopes by proper. The to show the Mohel was State them, envelopes plain in view when Mohel saw and that the were evidentiary importance apparent to the officers was that their writing the outside of the letter addressed to on the on based facts, challenged of the Dougherty. Defendant the State’s version placed claiming receptacle mail into which Marshall had that the slot, envelopes a closed box with a and that the officers the was The warrant- envelopes have seen the inside the box. could not defendant, according violated his envelopes, of the less seizure they rights contained should Fourth Amendment and the evidence suppressed. have been motel, Hahn, manager of the Mohel and Zillah the front desk “ depository ‘an that the motel’s mail was
testified for the State
on the counter’ at the front desk.” Id.
at 64-
up
that
open box
sat
investigator
described it as
Another
at the scene
that the State County by Police Chief P.J. was written Ocean ery requests. One at the motel. Herbert, charge of the scene who was the officer give rise to defen- the events left the motel before Herbert contains no place. his memorandum claims took Thus dant’s by petition and it legal issues raised relevant to the evidence further. need not be considered August by Investigator Murphy on prepared
The second was Kelly and summa- Prosecutor It is addressed to Assistant 1985. by Murphy and Mohel. investigation undertaken rizes additional by de- Murphy’s memorandum was discovered existence of The suppres- during of Mohel at the cross-examination fense counsel prosecutor produce the memoran- hearing. The refused sion dum, protected by work-product doctrine. claiming that it was agreed review and with conducted an in camera The trial court supplied to counsel on memorandum was position. The State’s July and the post-conviction pursuant relief to court order ruling errone- acknowledged prior that its at trial was court PCR ous. by the visit to the motel Murphy memorandum recounts 21, 1985, August to collect evidence about
Murphy Mohel on night Marshall’s receptacle that was use on the type of mail Zillah Hahn officers first interviewed letters were seized. The was the closed box with that the current mailbox who indicated had been built mail. Hahn stated that box the slot to insert motel, prior to the and that and installed the owner say when tray was used. Hahn could installation of that box tray. replaced the box memorandum, Murphy and Mohel returned
According to the owner, Tajfel Tajfel, day. told the officers speak the next with the years put approximately use two the closed box was into night attempted to mail year Marshall previously, one before that, Tajfel before the box had been told the officers his letters. Tajfel use, outgoing to collect mail. put tray had been used into That the box for him. a friend who had constructed contacted *78 185 Tajfel’s had recollection that the box been made person confirmed tray, Tajfel was able to locate the years previously. two about possession it. The officers also inter- officers took and the Rokoczy, in use on told them that the box had been viewed who Rokoczy night at the motel. recalled the that Marshall was top they placed his of the box because Marshall had letters on Rokoczy the also that he through too thick to fit slot. stated were up to Mohel after initially picked the letters and handed them had placed them on the box. Marshall had 1993, disputed the memoranda in he
After defendant received motel interview investigator his to the Best Western sent own Tajfel from the Tajfel. investigator learned box The defense builder, Tajfel employee, but that Bogart, Ben was a former Tajfel longer Bogart was no remembered believed that deceased. 1985, investigators the but of his conversation with the details truthfully at questions their he recalled that he had answered if trial certified to PCR court that time. Defendant’s counsel Murphy he would permitted he to see the memorandum had been Tajfel produced them as interviewed and the box builder have hearing. suppression witnesses at the failure to turn over the
Defendant claims that
duty
of the State’s
under
constituted a violation
memoranda
material, exculpatory evi
Brady, supra,
provide
to defendant
subject to disclo
and thus
dence.
evidence material
Whether
Brady
question
a mixed
of law and fact.
rule is
sure under
(3d
Pelullo,
881,
Cir.1994);
F.
United
v.
14 3d
886
United States
(3d Cir.1991);
Perdomo,
967, 969
Garter v.
v.
929 F. 2d
States
(3d
denied,
1299,
Cir.1987),
484 U.S.
F.
cert.
Rafferty, 826 2d
(1988).
court’s
Defendant would have us find because the trial against proceeding, ruled him in the first he has exhibited bias and disqualified ruling any concerning should be from claims tape points suicide on PCR review. Defendant to the court’s ruling Murphy work-product on the status of the memorandum as give refusal to attempts and court’s credence to defendant’s impeach testimony Churchill’s as evidence of the court’s bias. However, litigant bias is not established the fact that a disappointed Beyond ruling argu- a court’s on an issue. ment, showing part no on the of the trial makes of bias court, reject that claim. and we therefore relief, again court reviewed the post-conviction
On Hahn It the statements of Murphy memorandum. found that Assuming Rokoczy testimony their at trial. consistent with were Tajfel testimony Bogart would have been consis memorandum, the court statements recorded in the tent with the cumulative, merely been memorandum would have found that the testimony witnesses who than the defense specific and less testify. did at the
Accordingly, the PCR court found that evidence “[t]he clearly [the led to conclusion ... suppression hearing nothing receptacle present and contained tray] was the mail 23,1985, capacity to have affected August had the memorandum Regarding argument that disclo- that determination.” additional, led favorable sure of the memorandum would have Tajfel’s testimony Tajfel, the court stated that from evidence hearing.” changed conceivably have the result “could not *80 materiality applied that the standard of We are satisfied right protective at least as of by the court was PCR of as the standard set Brady, supra, to disclosure the memo under Knight, supra. The lower court made Bagley, supra, in and forth the would have been that was no chance that result clear there memorandum, had defendant had access the different pre have probability” he would certainly a “reasonable that not suppression hearing. at the vailed judge’s finding of he would component the factual —that had to the withheld differently had defendant access
have ruled “clearly suppression At hear- erroneous.” the information —is not conflicting support could the evidence ing, the found that the court tray the mailbox could motel’s use of the conclusion that the present at the might have been overlapped, and both have Therefore, Bogart if were the time. even front desk at same available, Bogart hope for be that best could would the testify authoritatively he had the slotted box for
would built Tajfel September testimony night 1984. That before testimony directly that Marshall had would not contradict tray. he has also placed his letters into a Defendant contends that Tajfel’s testimony, longer remem- deprived been because he no However, hypothetical relevant details. like the testimo- bers the Tajfel ny Bogart, placed even if had testified that the box was Western, stay testimony before Marshall’s at the Best service merely duplicated testimony, would have other and it would have by contradicted other evidence that the trial court found to been be credible. dissenting opinion only
Justice Handler’s
asserts that “the
consistently professed
receptacle
witnesses who
that the mail
was
open tray
tape.”
who
were the two officers
had seized
Post
ignores
Finally, testimony defendant has failed to undermine the Churchill, envelope Lieutenant that neither who stated as it inside, tape was retrieved from the motel with the and the letter tape by through nor fit itself would the slot the closed wrongly performed mailbox. Defendant claims that Churchill his cover, experiment plastic tape increasing with the inside its thus through its width so that it would not fit the slot. Marshall cover, put tape envelope testified that he had in the without *81 police inventory envelope and defendant notes that the of the did However, concerning not mention a cover. testified the Churchill contents, possession envelope chain of of the and its and stated through envelope mail slot the tried fit it the box’s that when he exactly from the motel. trial as it had been retrieved was testimony that there court was to disbelieve Marshall’s entitled tape the that the cover had had no cover on to conclude been testimony police inventory. from the Churchill’s been omitted claim withheld memoran- defendant’s that the further undermines Brady purposes. for dum was material
Accordingly, uphold ruling of the PCR court that we did violate defendant’s the failure turn over the memoranda evidence was not Brady rights, ground on the that the withheld Brady several of finding on the issue causes material. Our to fall as well. Defendant claims that defendant’s other claims viola over memoranda constituted substantive failure to turn Fourth, Sixth, Eighth Fourteenth rights his under the tions of Constitution, I, and Article Para Amendments to the Federal Assuming 7,10, Jersey and 12 of New Constitution. graphs constituted a direct the failure to turn over the memoranda provisions, conclusion that of those our violation constitutional materially have influenced disclosing would not the memoranda suppression hearing that those al indicates outcome leged harmless. violations would have been counsel was ineffective also claims that his
Defendant held Murphy memorandum as he failed to have the when court’s decision that appellate review of trial exhibit preju That failure privileged work-product. memorandum was claims, defendant, because, work-product ruling if the diced he appeal, could have inter direct had been reversed on Tajfel memory Bogart was still fresher and when his viewed testimony ground that the lost This claim fails on the alive. also hearing. affected the outcome of would not have category Finally, claims that fall within this of defendant’s two other violations entitles cumulative effect of the assert that the underlying in the In lack of merit him to relief. view the reject cumulative claims. allegations, we *82 Tape Based on Evidence Relevant to Whether the 2. Claims Suppressed the That It Have Been Ground Was Should Attorney-Client Privilege Subject to the Communication D.l-4) (A.87-88, based on the common
Defendant makes series claims envelope premise that the seizure and search of the and the tape into violated defendant’s admission of audio evidence right privilege against of counsel and his disclo to the assistance attorney-client sure of communications. Defendant relies on the attorney Dougherty tape fact that was an and that the and the addressed, envelope part, other enclosures matters Dougherty attorney-client which was to act on his behalf. The relationship Dougherty between Marshall and concerned real es litiga financial matters unrelated to criminal tate and I, 69, supra, By at A tion. Marshall 123 N.J. 586 .2d85. the time Motel, investigators at of the incidents the Best Western were attorney aware that defendant had retained Glenn Zeitz to handle impending charges. Dougherty expressly criminal had de case, represent agreeing clined to defendant in the criminal firm legal his law would assist defendant’s criminal counsel with only. research Ibid.
In upholding open envelope the search warrant to contain ing tape, investigator’s we held that the failure to include in supporting Dougherty attorney affidavit that was defendant’s improper was not because the record indicated that the officers brother-in-law, Dougherty, believed that who was defendant’s representing defendant in the Id. at murder case. attorney-client A.2d 85. We held that whatever extent an “[t]o relationship Dougherty may between have existed seizure, unpersuaded at the time of the we are that the seizure of envelope attorney-client privilege.” Any violated the Ibid. attorney-client relationship was “undisclosed.” Id. 586 A.2d itself, regard tape 85. With to the content of the affirmed the we that, holding communicating trial court’s “defendant was with relative, not as an Dougherty primarily a trusted Mend and as attorney.” Ibid. “My
A from defendant’s motel room that read: note was seized attorney Joseph my contact name Rob Marshall. Please suppres- At Dougherty,” telephone forth number. set *83 previously. The hearing, having seen the note sion Mohel denied which seized the note from defen- record does not indicate officer the motel room. The existence of note was memorialized dant’s prepared inventory of seized from the motel room items February 15,1985, Mahoney approximately Investigator Daniel on Mahoney’s five after incidents at the Best Western. months the pursuant to inventory not over to defendant until turned discovery request during proceeding. the a PCR over argues that the failure to turn
Defendant on PCR review inventory deprived opportunity him of to show the before trial the note, investigators of the existence the that the were aware envelope consequently they Dougherty knew contained the attorney-client also communications. Defendant claims protected any to of the note omission of reference the existence that the warrant. Mahoney’s warrant affidavit invalidated the from search inventory, discovery defendant reasserts Based of the on envelope from the Best filings that seizure of PCR Dough- mailbox, naming failure to mention the note Western’s affidavit, the erty in the search warrant as defendant’s counsel itself, tape and the admission of the search warrant issuance of against an attor- privilege his disclosure of into violated evidence right to the ney-client and thus his constitutional communication also claims that the failure to of counsel. Defendant assistance inventory was a violation of the State’s before trial turn over discovery obligations. attorney-client claims based on of defendant’s
Several not tape of the has been held to privilege fail because the content The fact attorney-client communication. privileged constitute Dough my attorney Joseph “Please wrote contact defendant argument professional erty,” might support offer Dougherty, and the defendant and relationship existed between investigators’ inventory relevant to the would be existence of the noted, However, the trial court relationship. of that awareness every communication proposition, that not affirmed the and we attorney-client privileged communication. attorney is a one’s I, 586A.2d 85. supra, 123 N.J. at Marshall affair with Kraushaar Obviously, the details of defendant’s not communicated paid McKinnon were sums he had Moreover, representation of defendant. any legal furtherance of in the represent defendant Dougherty had declined because matter, expecta- have had no reasonable defendant could criminal solely were in relevant to the murder that communications tion Thus, if relationship. even it professional furtherance of their Dougherty con- that defendant’s instructions were conceded pursuant to an disposition financial affairs were cerning the of his tape relevant to relationship, the admissions on the attorney-client scope against were not within the charges the criminal and, therefore, privileged. See representation, were ed., (Strong § 4th Evidence 322-24 also McCormick *84 ed.1992) attorney advisor (noting that consultation of as business attorney-client necessarily protected communica- agent is not or tion). concerning implications note and its
The existence of the attorney-client subjective of the officers of an the awareness Dougherty change the relationship cannot between defendant the audio of the communication recorded on content or character of that there was no breach tape. Because it has been determined communication, tape the confidentiality protected a admission of of attorney-client privilege. not violate defendant’s into evidence did exposed, attorney-client confidence was defendant’s Because no admitting violated seizing tape it into evidence claim that the rejected. right his to counsel is also the affidavit argues that the omission from Defendant note police the fact that found the support of the warrant of attorney violated his Fourth naming Dougherty as defendant’s
193 against right Amendment unreasonable searches. Defendant inventory trial would have maintains that access the before Mahoney helped intentionally him had to establish omitted and, furthermore, from affidavit the existence of the note Mahoney attorney-client relationship of had notice defendant’s I, Obviously, holding Dougherty. supra, our in Marshall with not to indicate in the that the warrant was tainted failure professional relationship a supporting affidavit there was defendant, 72-73, 123 586A.2d Dougherty and see N.J. at between 85, inventory account did take into the then-undisclosed of Furthermore, fact found in the motel room. that the items privileged tape was later determined not to be content dispositive attorney-client is not of whether the communication Hutchins, properly issued. See v. 43 search warrant was State (1964) 85, 100-01, 202 (holding A.2d 678 that search cannot be N.J. search). by product lawful made challenge sup mount a successful to the warrant’s
To affidavit, prove by a porting preponderance defendant must intentionally disregard or reckless that the affiant with evidence material, untrue Franks v. for the truth included information. 171, 2674, 667, Delaware, 154, 2684, 98 S.Ct. 57 L.Ed.2d 438 U.S. (1978). may omissions in the affidavit also invalidate 682 Material 235, Stelzner, 219, N.J.Super. A.2d v. 257 608 the warrant. State (1992). denied, 396, 619 (App.Div.), 130 N.J. 614 A.2d certif. attorney-client relationship, a search intrudes When height expectation privacy relationship in that leads special scrutiny. v. See States Mittel ened Fourth Amendment United (9th Cir.1993); man, City Trading National F.2d (2d Cir.1980). States, Corp. 635 F.2d 1025-26 v. United However, premises possessions or are not immune attorney. merely they with an search because are associated from *85 Mittelman, supra, (noting “[l]aw 999 445 that offices F.2d at See search”). Instead, as with the examination are not immune from warrant, totality of any consider the the circumstances we consistently with the a warrant was issued determine whether Novembrino, 105 N.J. See State v. of the Constitution. dictates (1987). 95, 122, 519A.2d inventory discovery of that the the
Defendant claims minimum, him, hearing the court to at a to a before PCR entitles Mahoney he Investigator knew of the note when that establish affidavit, therefore prepared warrant and that the warrant is the material, swearing the invalid to a intentional omission due that, assuming reject find even officer. that claim because we We signed Mahoney knew existence the note when he that of the affidavit, The would not have been material. the such omission attorney” Dougherty “my as fact in the note named that defendant attor Dougherty have was defendant’s would not established ney impending proceedings. In purposes criminal already criminal view of the fact that defendant had retained counsel, Mahoney reasonably could assumed that the envel have attorney- ope beyond scope contained admissions whatever relationship Dougherty. client had with
Moreover, nature of defen because of “attenuated” I, attorney-client relationship Dougherty, dant’s Marshall with Mahoney supra, A.2d if disclosed 123 N.J. even had affidavit, weigh the contents of the note in the warrant correct ing totality of the circumstances would have mandated that Mahoney’s judge affidavit informed the search warrant issue. Dougherty attorney and who the warrant was an issued strong defendant’s brother-in-law. affidavit established the in a probability envelope important that the contained evidence capital-murder separately retained case. Given existence of matter, any equally likely it counsel for criminal scope outside of whatever attor relevant evidence would be ney-client relationship Dougherty. existed between defendant and facts, judge even if knew of the note found On those the warrant room, totality motel of the circumstances would required have the issuance of the search warrant. *86 the failure to turn over Maho
Defendant claims that discovery request was a violation of inventory until the ney PCR discovery obligations. are unable to determine We the State’s however, record, alleged the exact circumstances this from inventory “withheld” from alleges the was violation. Defendant whether, example, the State discovery, does not state but request, pursuant specific or whether the produce it failed inventory privileged. are was Thus we claimed that State violation. Howev defendant’s claim of willful unable to evaluate er, prejudice no from the we find that defendant suffered because inventory, claim that turn over the defendant’s failure to State’s discovery obligations is without merit. De violated its the State discovery report of a entitled to also claims that he was fendant of the motel room prepared contemporaneously with the search note. The detailing of the seizure of the State the circumstances exists, reports and defendant has made no such a denies that Accordingly, that claim representation. showing to contradict denied. also must be that the warrantless seizure
Finally, defendant asserts right to assistance of defendant’s envelope Mohel violated already Id. at 586 A.2d ruled on that issue. counsel. We have knowledge of its note and Mohel’s existence of the 85. The envelopes, because to the seizure of contents are irrelevant any official entered law enforcement envelopes were seized before Therefore this the note was found. motel room where merit. claim is without in Con- Alleging Assistance of Counsel Ineffective
3. Claims Tape” at and the Items Seized nection With “Suicide Motel the Best Western B.206) B.147-150, B.24-25,
(B.13-18, alleging counsel that his a number of claims Defendant raises failing prevent the admission constitutionally ineffective in failing raise various tape and in of the suicide into evidence at the Best Western items seized claims in connection with other governs those claims standard Motel. The Strickland/Fritz 156-157, supra A.2d See at 34- has been set forth above. 35. fail counsel claims
Several of ineffective assistance *87 alleges that were inade the claims defendant because substantive Thus, to merit. pursued already have been found lack quately constitutionally inadequate, performance if were even counsel’s requisite prejudice under the the cannot establish defendant Those defendant’s claims that standard. include Strickland/Fritz establishing constitutionally ineffective in not trial counsel was police prosecutors the knew of the note found the or that 1) alleged The deficiencies are: failure motel room. defendant’s concerning he direct what observed call Mohel for examination to there; 2) argue to and items seized failure in the motel room the the scope was the of direct the cross-examination within that cross-examining precluded from after counsel was examination briefcase, includ regarding items seized from defendant’s Mohel 3) note; the note and and failure to establish who seized ing the preceding The subsection dem the circumstances its seizure. note establishing knowledge of the existence the onstrates that personnel part would not have affected on the of law-enforcement proceedings. outcome of the the alleged short-
Defendant makes other claims based counsel’s suppression comings developing in the hear- favorable evidence the ing. claims that counsel’s failure to establish on Defendant tape a cover consti- the of the cassette without record dimensions State, However, the of counsel. tuted ineffective assistance Churchill, proof through testimony that the of Lieutenant offered tape cover that the cover is too wide was mailed inside its whether the slot in the never contested for mailbox. State tape through the Thus counsel’s by itself would fit slot. Likewise, alleged inconsequential. error trial counsel’s failure was preserve Murphy and to mark the memorandum into evidence to ruling that the appellate review of the trial court’s it for direct significant, product not because we memorandum was work to itself was produce found the failure memorandum have prejudicial. handling concern his counsel’s Two of defendant’s claims hearing in suppression with the connection of witnesses at closed, motel theory at the was a slotted defense mailbox First, claims are without merit. defendant box. Both of those constitutionally failing was deficient alleges that trial counsel DeCarlo, sister, prepared Oakleigh was call who prior had inconsistent testify that Zillah Hahn made statement However, tray. testimony open was her mailbox with obviously susceptible impeachment was defendant’s sister bias, be deciding not to call her would a reasonable tactical choice, testimony her especially available when essence suppression hearing At the the defense had from other sources. testimony Rokoczy mailman to Hahn and and the contradict receptacle mail was closed box. to establish that the Second, trial failed meet alleges that counsel suppression Rokoczy he for the defense at the before testified with preferred practice might to meet with hearing. Although the be *88 testifies, important he defendant has not witness before such Rokoczy’s harmed explained failure to do so his case. how the testimony might placed have that defendant cross-examination no the top prejudice the caused because the letters on of mailbox it, placed finding expressly that defendant court trial disbelieved Therefore, tray. open both claims that trial letters in an the handling constitutionally in his of witnesses was ineffective counsel rejected. issue be on the closed mailbox must allegedly was ineffec- assert that counsel of the claims Several attorney-client tape represented an com- arguing that the tive However, move the of trial counsel to munication. failure envelope opening of contain- prohibiting the protective order of tape support claim of ineffective assistance ing the cannot light been of our motion would have futile counsel. Such a Likewise, envelope proper. trial ruling was that the search failing to that defendant’s faulted for establish counsel cannot be Dougherty primarily professional, and that relationship was with friend defendant would have Dougherty not a trusted whom was tape of demon- personal The content consulted on a basis. close friend Dougherty be a perceived that defendant strates carry important highly out the and could entrusted to who be tape. alleged Nor contained does personal instructions Dougherty’s legal of pretrial hearings to elicit the extent failure defendant, have Dougherty or what would done representation of it, tape support he the ineffective-assistance with the had received legal aspects professional satisfied that the and claim. We are relationship Dougherty fully developed have been defendant’s with Court, relationship support this and that does before attorney-client privilege. claims based on Finally, the fact Zeitz did not defendant claims that that tape immediately him until the content of the suicide with review jury that played it to the is additional evidence counsel before was failing to unprepared. argue does not review was Defendant tape sufficiently prejudiced his to constitute with counsel case Instead, he the claim in ineffective counsel. raises assistance many minor support argument that the errors counsel his However, cumulatively in the amount ineffectiveness. absence preparation argument alleged lack of of a colorable rejected its proceedings, this claim is both on own affected cumulatively. and merits Tape”
4. Miscellaneous Claims Associated with the “Suicide at the Best Western Motel Items Seized D.9) (A.71,A.89-90, D.5, uncounselled, tape
Defendant maintains that the audio
contained
statements,
into
post-indictment
their admission
evidence
Sanchez,
right
his
under State v.
129 N.J.
violated
counsel
(1992).
actually
Although
indicted
We need
reach
indictment,
anything
subject
of a
or whether
been
de facto
trigger
the constitutional
of a formal indictment would
short
Sanchez,
interro
supra,
In
we held that
protections of Sanchez.
rep
by
of
initiated
law-enforcement
gation
an indicted defendant
counsel violated the
without the consent
defense
resentatives
I, Paragraph
of the
right to
under Article
counsel
129 N.J.
Defendant claims rights. The First First attorney his chilled his Amendment incriminating state- provides suppressing Amendment no basis by lawful the authorities have obtained ments a defendant that right that his of access to the courts means. Defendant’s claim as his based on ground fails the same claim impaired has been violated, attorney-client privilege. privilege no there Because legal with defendant’s access to has been no interference system. any report that he entitled
Defendant further claims disposition glass of Coca- contents accounted for investigators placed had into told the he cola which defendant sleeping that a chemi- medicine. Defendant claims lethal dose of analysis shown that he had been the Coca-cola would have cal medicine, sleeping which would have telling about the the truth suicide. supported claim that he had intended commit his *90 However, showing report a ever no that such there has been analysis prepared. was ever More- any or that chemical existed over, the Coca-cola con- unpersuaded are that evidence that we to sleeping have been favorable defendant. medicine would tained medicine, “spiked” with a dose of Even if the Coca-cola were lethal Thus, it. the did not drink the fact remains defendant the sleeping negated would not have presence of the medicine event, any In attempt was sham. inference that the suicide probative attempt feigned or is not the suicide was real whether jury: whether or defendant the real issue that confronted the out, guilty murdering points the guilty his wife. As State likely attempt than an person perhaps more to suicide even unjust an conviction. innocent one who fears Finally, independent that he asserts as claim recorder, tape property receipts to was entitled receive batteries, F.B.I. tape report as of the cassette as well analyzed tape. He claims no Technical Services Division that this specific prejudice in with the failure to receive connection material, support argument it in of his the State’s but asserts discovery preju disregard obligations of its worked a cumulative However, light against dice of defendant’s conces defense. by prejudice produce there failure sion that was no caused material, prejudice it have cannot added the cumulative Therefore, deny alleged discovery other violations. we caused this claim as well.
D. CLAIMS RELATING TO SARANN KRAUSHAAR E.9-13, E.19-20, A.45, A.58-60, B.109-32, B.138, B.199, (A.2, 24)E. asserting discovery include
The claims this subsection claims Kraushaar, testimony of Sarann claims of violations relevant to relating coun- primarily assistance of trial ineffective counsel her, allegations prosecutorial sel’s cross-examination of relating testimony. address misconduct also to Kraushaar’s We all of claims claims on their merits and conclude that testimony meritless and should be relating to Kraushaar’s are hearing. without a dismissed significance alleged discovery
The viola claimed allegedly withheld include tions is difficult discern. items Miranda form dated signed September Its 1984. Kraushaar’s *91 that, although September purported relevance is on 7 the State in sufficiently possible of suspicious was Kraushaar’s involvement submission of Miranda require warnings to before the homicide interrogation, prepared to for her at trial the State was vouch her reject credibility. argument and conclude that the We Similarly Miranda form was immaterial document. Kraushaar receipts Stamps E & B and dated irrelevant were from Coins 1983, 25, reflecting by purchases and made March 23 silver Kraushaar, allegedly deriving significance and their questioned only from the fact that defense counsel Kraushaar concerning deposit rented a box hold the the date she safe subject obviously tangential The the document are too silver. and any to have effect on the result. central issues at trial had to the pro Defendant next contends that the State’s failure to September dated duce two affidavits and related search warrants 1984, 27, records the telephone for Kraushaar’s toll tainted 10 and hearing concerning the ordered this Court integrity of remand exhaustively immunity agreement. addressed the Kraushaar We appeal hearing remand in our direct the issues raised in the I, 171-207, N.J. supra, Marshall 586 A.2d and opinion, analysis for our serves as the' foundation that discussion and remand rulings PCR related the substance the on issues supporting the hearing. Concerning the search warrants and affidavits, correctly docu the those PCR court determined scope of the court’s not included within the trial ments were hearing. Contrary discovery governing the remand order supporting that the affidavits the warrants defendant’s contention a sus suggesting information that Kraushaar still contained even more vulnerable pect September 10 and and therefore immunity testimony her trial and the about to cross-examination (the Sep- September 10th affidavit agreement, examination undoubtedly is not contained similar but tember 27th affidavit relatively boilerplate appendix) reveals that it consists of the PCR summarizing investigation and Marshall’s to date allegations, Kraushaar, alleging that access to Marshall’s relationship with lead to the identifi- telephone toll records would and Kraushaar’s responsible persons for Maria Marshall’s death. cation of the in- regarding suspicions of Kraushaar’s direct is silent affidavit and, view, in cross-examination in our its usefulness volvement produce minimal. The State’s failure would have been capacity to result had no affect the affidavits warrants trial. prosecutor’s notes of
The final document consists Kraushaar, significant allegedly be preparatory with interviews they potential prosecutor’s interest of office refer to the cause any link homicide and murder between Marshall Craparotta July 1984. We doubt that notes were Vincent discoverable, capacity their had no and are convinced that content *92 to the result of the trial. affect prosecutorial misconduct.
Defendant asserts several claims the the claims based on the State’s failure disclose Two of promise immunity and its failure to disclose Kraushaar obligations financial incurred connection with McKin details of testimony, by properly the trial court under non’s were dismissed specific addressed resolved those conten Rule 8:22-5. We and I, appeal opinion. supra, 123 tions in detail our direct Marshall 199-207, addition, A.2d In 85. defendant contends N.J. prosecutor’s questioning concerning the of Kraushaar her that 22, September accompanying with on defendant consult counsel denigrate right was intended to to counsel and bearing guilt. imply that such consultation had We 121-25, appeal, A.2d a related issue on direct id. at addressed grounds. claim merits same and we dismiss this on the on the alleges prosecutorial arising Defendant misconduct the prosecutor’s the failure to inform court that Kraushaar from order, prosecutor comply with a to which the did not court consented, reports press witnesses that Kraushaar read no about testimony. alleges, during a break in her Defendant who testified (Joe McGinniss, on the of a book about the murder trial basis Blind, (1989)), In that Kraushaar violated the order. our Faith true, view, and, if allegation insufficiently substantiated even the any Nor merit capacity had to affect the trial result. is there no improperly that elicited from prosecutor to the the contention testimony relationship her with Kraushaar she terminated guilty Kraush- thought she he was of murder. defendant because she relationship aar that she terminated the because testified telling me.” Nei- longer “could believe what was [defendant] no questioning response had prosecutor’s ther nor Kraushaar’s materially to the outcome of trial. capacity affect alleg- prosecutorial to the Another claim of misconduct relates edly provide copies and related wrongful failure to affidavits telephone toll We have search for Kraushaar’s records. warrants that claim in connection with already addressed substance of violations, discovery it on the alleged and order dismissed grounds. same claims of misconduct that
Defendant asserts two other reliability hearing or allegedly of the remand undermined First, representatives asserts by dered this Court. County the remand Prosecutor’s Office lied at of the Ocean they Investigator Murphy of that testified that hearing when discovery forwarding responsible compiling office was allegation on in the Marshall case. Defendant bases material “Death prosecutor’s office entitled maintained record 1981-1984,” Mahoney Investigator Investigations which agent investigation. De designated the ease in the Marshall as Mahoney signed had one of the that because fendant asserts *93 immunity agreements, agent as would his status case Kraushaar directly delivering agreement responsible him for that have made counsel, hearing testimony at to the the remand defense whereas Mahoney of agent purported case to relieve naming Murphy as Second, a claim of responsibility. asserts related that defendant prosecutor’s to premised the failure of the office misconduct Mahoney report by Investigator dated produce discovery for in 15, 1985, inventory items found February detailing an of alleges that Motel room. Defendant defendant’s Best Western report from withholding inhibited defense counsel the of that hearing cross-examining Mahoney at remand con- the adequately discovery. responsibility for cerning his procedurally the claim the dismissed as barred After PCR court ledger,” counsel moved of based on the “death defense misconduct trial, permit evidentiary hearing, to for new or for an allegation Mahoney proof Investigator that was to of his offer discovery opposing in In responsible for the Marshall case. motion, argued primary that function of the State the defendant’s ledger” keep to track of and their the was homicides “death agents, noting ledger’s that designate and not ease victims (the in designation prosecution in the case case-agent Accetturo disclosed) first found to ledger the existence of the was which reliability be inaccurate. The State contended by testimony hearing, outweighed the remand ledger was cross-examination, Murphy not demonstrating tested responsible discovery. attempting Mahoney had Without been that, dispute, the PCR determined to resolve factual court holding of the State’s based on this Court’s nondisclosure non-prosecution agreement with Kraushaar was “material” I, guilt punishment, supra, 123 N.J. at or Marshall 199-205, hearing new to redetermine 586 A.2d hold a futility, question and not of willfulness “would be an exercise justice.” agree We with the PCR court’s determi- interest on the merits those claims misconduct. nation dismiss Defendant asserts numerous claims of ineffectiveness relating prepared in which for and counsel to the manner Zeitz Included within conducted cross-examination Kraushaar. category following should this are the claims: that trial counsel provide testimony contra- have withdrawn as counsel order *94 Kraushaar’s; objected dictory that counsel should have Sep- testimony accompanied defendant on Kraushaar’s that she Zeitz; to meet with that counsel should have tember conclusory objected Kraushaar’s statement that defendant was straits”; cross-exam- financial that counsel should have “dire resigned position on the reason she her as vice ined Kraushaar have cross-examined Kraushaar principal; that counsel should concerning of counsel and the details of her conver- her retention 7, 1984, attorneys September the date of her sations with her prosecutor’s investigators; that counsel statement to the first attorneys prior to trial and have interviewed Kraushaar’s should witnesses; that counsel have called them as defense and should develop strategy for the cross-examination of failed to coherent performance was Irrespective of whether counsel’s Kraushaar. areas, any has failed to demonstrate deficient those alleged have probability that counsel’s deficiencies would affected Accordingly, claims on of the trial. we dismiss those the outcome the merits. addition,
In defendant asserts a number of miscellaneous possible obviously relating to other areas of cross- meritless claims testimony impeachment Kraushaar’s that are examination or of counsel. We alleged to have constituted ineffective assistance there is those claims on their merits as well because dismiss conduct, if defi- absolutely that counsel’s even no demonstration cient, have affected the trial result. could THE DE- THAT PRECLUDED
E. ALLEGED ERRORS THE SCENE TO FROM UTILIZING CRIME FENSE THE A DEFENDANT AS VICTIM OF CRIME PORTRAY 1. In General B.62)
(A.12, B.4, B.21, subcategory alleged include one The claims this violation, apparent failure to Brady consisting of the State’s logs police preserve tapes and comply a court order to with included are three night on the of the homicide. Also actions counsel, relating the first assistance of of ineffective allegations tapes logs and review alleged failure to obtain counsel’s compel preservation, and the their moving to previously after alleged Troop- to elicit from failure relating to counsel’s other two they at the crime scene Petracca that *95 Detective er Sink and whoever had a victim of be initially considered defendant Adjudicating those Marshall. the murder of Maria committed merits, they should that be the we conclude claims on four tapes unavailability police Notwithstanding the the dismissed. interrogate and counsel to Sink logs, omission of and the and victim at the considered a defendant was on whether Petracca scene, any alleged Brady violation or that we are satisfied crime to the outcome the counsel was immaterial ineffectiveness of acknowledged, and the opening statement prosecutor’s trial. The verified, at crime scene defen- that the police witnesses State’s Trooper cut and his face was bloodstained. dant’s forehead was right near the rear tire of puddle a of blood described Sink acknowledged Petracca that when car and Detective defendant, bandaged head and blood was interviewed his he police officers at the his and trousers. Whether visible on shirt suspect a a victim or is irrele- crime scene considered defendant graphic jury the received full and vant. relevant is that What injuries. description of defendant’s 2. The Tire H.10) B.219,
(A.3-9, B.37-38, B.47-52, B.139, B.152-156, subcategory alleged discovery in this viola- claims include provide discovery tions based on the failure to State’s trial, expert opinions qualifi- it of all would elicit at substance experts, experts, laboratory its *96 in this here, discovery ineffectiveness claims the we consider appeal and adjudicated direct having been on subcategory as not on direct reasonably have been asserted claims that could as and -5. appeal. R. 3:22-4 See subcategory should be in this that all claims
We conclude hearing. merits, evidentiary We an the without dismissed on experts were suggestion that the State’s the regard as meritless an testimony lacked expert or that their inadequately qualified in deficient that the State was To the extent adequate foundation. notes, and source laboratory qualifications, experts’ the providing easily have been deficiency discovery, could that material prior to insisting production on their by counsel trial overcome Accordingly, we testimony. experts’ the in advance of trial or violations, harm any, if were discovery the State’s conclude that less. an discovery, to retain the failure to demand
Counsel’s trial, arrange an examination and to expert in advance of inadequate appears its face to reflect four tires car and all hand, as noted in our part. his On the other we preparation on made no effort to appeal opinion, that defendant “[t]he fact direct suggests into trial the tire until well the expert inspect have significance possibility to the attached little defense counsel I, supra, slit.” Marshall damage had other than the that the tire Although hindsight might suggest A.2d 85. 123 N.J. at strategy designed prove the car had a wisdom of trial the proof that the slit to counter State’s defects order other only car’s was the cause picnic at the area administered strategic decisions hindsight for the immobility, cannot substitute strengths of his and weaknesses counsel informed of both insufficiently prepared on may been Counsel have client’s case. issue, may consciously that his efforts and have decided this or effectively expended be in other could more resources defendant’s suggest by that there was proffer made defendant to areas. No testimony, that than proof, now available other or is picnic trouble. On area because car drove into defendant any record, counsel’s we satisfied that deficiencies this are deprive as to the defendant of were not “so serious performance trial____” Strickland, 687, 104 at supra, 466 at S.Ct. U.S. fair Ed.2d at 693. 80 L. Failure to Elicit on Cross-Examination Con- 3. Counsel’s Defendant Police sistent Made Various Statements Experienced Problems He with His Car Officers About the B.218) (B.57-59, B.61, B.64, trial, point at issue whether
Defendant contends pulled when into the right rear tire was flat or half-flat area, if had easily have clarified defense counsel picnic could been defendant had police officers to establish that cross-examined into when he drove consistently stated that tire half-flat *97 the failure to picnic The ineffectiveness claims include the area. Churchill, Mahoney, Investigator Inves- Lieutenant cross-examine Belitrand, Joo, Investigator all of tigator Murphy, Detective defendant to effect allegedly had taken statements from whom picnic it in the half-flat when defendant examined that the tire was a claim of ineffectiveness subcategory also includes area. This that Detective Petracca had unawareness on trial counsel’s based ques- Police Barracks after to Bass River State taken defendant home, questioning that led to as on counsel’s tioning him at as well jury unnecessarily informing the about testimony early retention of counsel. subcategory their merits all claims in this
We evaluate noted on direct they be dismissed. We and conclude that should to various officers in defendant’s statements appeal inconsistencies I, car, his Marshall problem first detected a with about when he considered too inconse 586 A.2d but supra, 123 N.J. in defendant’s any alleged inconsistencies quential to mention totally or half-flat. Un the tire was statements about whether aspect of concerning this important the more issues questionably, feigned, trouble had been alleged car the trial were whether Oyster stop at the Creek had decided to and whether defendant facilitate the homicide. inspect his car or to Picnic Area to in this supports the claims alleged of counsel ineffectiveness effect on conceivably have had a material subcategory could not jury verdict. Body Position of and Ballistics 4. E.22) B.78, B.89, B.46, B.53-56,
(A.66-67, A.70, B.37, B.38, B.42, issues of limited subeategory relate to trial The claims this was shot including following: whether victim significance, that the contention asleep (germane to defendant’s while awake or identification); prevent the robbers’ awake when shot to victim was police range; at close and whether the shots were fired whether open ear or glove compartment in defendant’s officer found scene, investigators that having told closed at the crime open shooting he had asked his "wife immediately prior to the In- trunk. unlatch the car’s glove compartment order to violations, consisting of the State’s discovery are claims of cluded reflecting qualifications of three produce failure to documents assis- claims of ineffective Also included are expert witnesses. *98 counsel, trial failed to consisting of claims that counsel of tance experts’ of experts’ reports and statements adequate demand testimony indepen- produce or qualifications; failed to retain experts improper- experts; inadequately cross-examined dent Hillman; expert ly qualifications witness stipulated the about on cross-examination questioned McKinnon improperly elicit range; at and failed to victim was shot close whether the testimony the effect that the victim was from the victim’s sons to sleeper. prosecutorial is a claim of misconduct light Also included testimony Trooper Mathis that he production on based the at the compartment in defendant’s car closed glove found the gave contradictory scene, testimo- the same officer crime whereas ny the trial of Robert Cumber. at and conclude all claims on their merits
We address discovery obviously are they claims should be dismissed. being qualified to experts amply offer insignificant, State’s Sinha, pathol testimony from them. Dr. a board-certified elicited autopsy, ogist performed the and the medical examiner who wounds, opin testimony entry and exit about the victim’s offered victim had shot ing on the basis of those wounds that the been Id. lying body. her left arm under her while down with Initially, expressed Dr. that the victim 85. Sinha the view A.2d asleep, he conceded that he been but cross-examination had asleep way determining she was awake or when had no whether testimony question on that elicited from McKin shot. Other non, occupants of car had been who stated that both sitting passed plaza preceding upright when car toll area, picnic Petracca testified that defen from Detective who asleep had him that been her head on dant told his wife had with area, pulled picnic that she had been lap his when he into the but he her turned to and asked her to unlatch the “seated” when alleged trunk. We find no merit to the claims counsel’s preparing for Dr. cross-examina ineffectiveness either Sinha’s failing expert independent tion to retain an on that issue or materially trial evidence affected the outcome of the trial. The provided theory had been support scant homicide perpetrators prevent identifying from committed to the victim robbery. based on of a The claim of ineffectiveness counsel’s testimony light to elicit from her sons that the victim was a failure sleeper similarly meritless. *99 relating to
The claims of ineffectiveness the cross- of witnesses Hillman and Liber and counsel’s failure examination experts testimony to retain to rebut their are without merit. expert qualifications adequate Hillman was ballistics with to testimony the the bullets support his about caliber of and shells type weapon they of been and the from which had fired. Ibid. relatively provided insignificant testimony Liber Detective about path exiting body. of one the bullets after the the of victim’s showing independent experts offers that Defendant no would have materially Finally, we con reached different conclusions. cannot inconsistently Trooper testifying clude that Mathis’s glove compartment ajar the and Cumber’s trial about whether prosecutorial equally plausible expla An constituted misconduct. Trooper inaccurately the of nation is Mathis recalled contents Moreover, report at trials. the of his one of the two issue was importance clearly affecting jury capable minor and the verdict. Stopping Oyster Creek Picnic Area
5. the H.2) (B.3, B.181, B.221, subeategory claims in include claims of ineffective this concerning alleged pro- failure of counsel counsel’s to
assistance alleged relating to the crime scene. The ineffective- duce evidence videotape offer ness includes counsel’s failure to into evidence homicide, shortly after his failure to the crime scene made the into independent pull that defendant’s decision offer evidence to avoid the fate of picnic area had been motivated a desire the defendant, physician, River known to who was killed while a Toms of the attending along to his vehicle the side Garden disabled Parkway, produce noise and his failure evidence State picnic to rebut inference level at the area perpetrator’s opening of on the have heard the the door should court defen- claims that the trial violated ear. Defendant also impartial jury by permitting trial right to an constitutional dant’s scene, a that defendant jury view crime contention rejected brief on in defendant’s have been advanced asserts to appeal. direct merits and conclude all claims their
We address permit they The trial court’s decision be should dismissed. permissible jury scene was a exercise to view the crime 25-26, Coleman, 46 N.J. State v. court’s discretion. See (1965), denied, 950, 86 383 U.S. S.Ct. A .2d 393 cert. contentions, (1966). Contrary to defendant’s trial L.Ed.2d 212 changes in Trooper the crime testimony of Mathis verified that jury’s visit of the homicide scene between the date visibility the Garden greater from resulted in less underbrush n not to Parkway, lending support to trial counsel’s decision State shortly videotape the crime scene made evidence a offer into discretionary determination not to murder. after the Counsel’s picnic testimony noise level at the area expert about the offer *100 conceivably to the level ineffective assistance. could not rise of of Dr. Finally, to offer direct evidence counsel’s decision not prudent untimely may have counsel’s accident reflected Klausner’s unpersuasive in recognition would have been that such evidence the substan proof of elicited the State about view the abundant along route at which he tial of safe locations defendant’s number I, supra, 123 checked out his vehicle. See Marshall could have at A.2d N.J. 85. Injuries and Treatment
6. Defendant’s B.140) (A.81,A.98, B.21, B.32, B.43-45, discovery subcategory in include claims of claims this alleged on failure to turn over to trial the State’s violations based report physician examined copies counsel of the of who copies night on the of homicide and of defendant’s defendant hospital emergency Also in- records from the room. treatment generally claims assistance of counsel cluded are of ineffective produce adequate testimony alleging trial failed to that counsel demonstrating had received a head wound that defendant stitches, thereby depriving defen- required five crime scene corroborating had testimony that defendant dant of the benefit of robbery, request that counsel failed to the victim of a and been report examina- page of the medical before trial second 6,1984. performed September on tion of defendant subcategory in on their all claims this We address merits, that all of them should be dismissed and we conclude general claims this reasons that we dismissed the the same namely, incontrovertibly estab category, at trial evidence injuries at the crime scene. The lished the extent of defendant’s injured, badly how but critical issue was not suspicion staged to avert assault on defendant was whether the for homicide. a motive Demeanor
7. Defendant’s B.225)
(B.31, B.63, B.207-10, subcategory includes claims ineffective assistance This counsel, alleged ineffec- on trial counsel’s all of which are based from failing as five men to contact and call witnesses tiveness immediately after homicide California who saw defendant assistance, police failing to telephoned for and in- contact testimony who observed defendant present from a woman police expression on the “horrified” his roadway and described to unsuccessfully acknowledges that trial counsel face. Defendant men from attempted proof about the observations to elicit through examination of Detective Petracca. direct California subcategory merits on their consider all claims this We testimony Although they dismissed. and conclude should be immediately might the homicide after about demeanor *101 defendant, not marginally helpful counsel’s decision have to been approach the level testimony on this record does not to elicit to materiality under the standard required Strickland/Fritz constitutionally defi representation that defendant’s was establish cient. Jewelry
8. The B.180)
(A.68, B.92-96, B.37, discovery alleged one subcategory in this include claims violation, to turn over trial counsel based on State’s failure qualifications expert of the of the State’s witness on the value jewelry. assistance victim’s Also included are claims ineffective failing alleging that trial was of counsel counsel deficient jewelry failing appraised, have the interview the victim’s failing independent expert, produce evidence of State’s jewelry’s value. all claims on their merits conclude that We address jewelry all of them be That the was should dismissed. victim’s persuasiveness conten undisturbed diminished robbery. tion the homicide was incidental to a Trial counsel effectively expert cross-examined the State’s to establish that owner, jewelry can be stolen often traced to its and rebutted expert’s ring by engagement estimate of value of the victim’s offering proof through ring defendant that the actual cost substantially expert’s lower than estimate of value. Addi testimony point merely tional on the have been cumulative. would Any by trial in addressing ineffectiveness counsel that issue could conceivably sufficiently have been material to affect the ver dict.
F. ERRORS THAT THE DE- ALLEGED PRECLUDED FROM THAT NEITHER
FENSE DEMONSTRATING DEBT DEFENDANT’S NOR INSURANCE POLICIES ON THE LIFE VICTIM’S WERE MOTIVES MURDER FOR 1. Debt
(A.17-23, A.35-46, B.103-05, A.29-33, A.48-55, B.lll, B.173-77, B.190-92) alleges discovery
Defendant numerous violations and ineffective relating his assistance of counsel claims to the issue of whether *102 a prior to the murder could have constituted financial condition to kill Defen- for him to hired McKinnon his wife. motive have alleges prepared was than the far better dant State on that issue at trial because State to offer evidence defense documentary concerning defen- compiled detailed evidence had finances, to to turn over those documents but had failed dant’s Moreover, his was inef- alleges that counsel defense. present for and to evidence to failing prepare to trial fective his capable paying had been debts demonstrate that defendant a motive for could not have constituted and that his indebtedness on merits and address all of those claims the homicide. We they evidentiary be dismissed without an conclude that should hearing. was persuasive evidence that defendant’s debt bur- most manage contained in defendant’s so- and difficult to was
densome tape” played jury. for the In the course called that was “suicide tape of that defendant stated: began long though, guess ... for before because some that, really, I my problem just ... to we ... ... whatever we wanted do or buy,
reason and I’m blame borrowing I to do we did it And it, and did it---- If it meant anyway. went ahead enough, ... if even Maria it was that there okay, assured always ... she I and I know that it, think she but knew that wanted knew, there wasn’t. I it we And that a ... a whatever and did it. created it, was, spiral she wanted thousand dollar debt ... not almost two-hundred that accelerated spiral including mortgage on a debt that I was determined to but house, off, pay just ... ... seem to climb out. couldn’t addition, fairly descrip- tape detailed In included debts, concerning the with instructions debts specific tion his repaid. that should first be big Bank ... loan with New National that’s [T]he Jersey loan is a ready-equity twenty-eight, a hundred thousand a hundred twenty-nine somewhere between think____ as because of the I That be off as soon dollars, paid possible, should high Bank, two First for are, There or notes at National one is, interest rate. just due, One of uh, currently under them
fifteen, for, twenty-thousand. and one guess ... as as There ... I both should be soon possible. should be off they paid ... or thousand loan with Federal Credit Union thirty is an installment Navy thing, thousand____ uh, with the is, uh, There a ready-equity less than type thirty due ... and there’s five thousand on for about twelve thousand Bank ... City checking dollars First Bank ... hundred due twenty-one with National plus ... a small amount due on American Express. Master Card, discovery alleges in this subcate-
Defendant numerous violations documents, claims, copies involving of the loan gory of most notes, mortgages relating applications, similar documents *103 obligations by specific loans credit outlined defendant on the and tape.” of the documents related to defendant’s the “suicide Some from his insurance business. State or to his income assets documents, essentially significance arguing the of the that contests undisputed, explain they but does not the debt that evidenced was produced. why not Based on defendant’s the documents were condition, knowledge infer of his financial to that he detailed notes, applications, mortgages and copies of most of the retained unreasonable, relating although his would not to indebtedness be acknowledges nor he neither denies that maintained defendant argues essentially preju- he was records. that such Defendant his failed to deliver them to counsel. diced because State either Notwithstanding the likelihood that defendant had directly lending from the possession in his or could have obtained State, produced by not institutions the loan documents defen any prejudice materially failed dant has to demonstrate that the the trial Defendant does not contend loan affected result. condition, inaccurately his nor documents reflected financial materially have the disclosure the documents would enhanced ability his not his to demonstrate that debts were burdensome. produced limited that the documents not To the extent income and evidenced related to defendant’s assets and his State obligations, ability to meet financial this information was his cumulative; produced trial defendant witnesses who testified to agent, testimony, as an his direct his success insurance and assets, and emphasizing his income demonstrated his substantial obligations. complete familiarity his financial resources and with addition, during Thompson, In counsel defendant cross-exami defendant, extensively about questioned nation of his manage ability assets his to his income and to illustrate debt. Consequently, we conclude failure to cannot State’s or concerning indebtedness re- produce documents capacity materially possessed slightest to affect sources trial result. respect with to defendant’s
We reach the same conclusion relating of counsel to defendant’s various claims ineffectiveness object generally failing to Defendant faults counsel with finances. financial to use defendant’s cross-examination of the State’s on discovery, failing produced and in to interview documents prepare to and bank officials otherwise defendant’s accountant at that de adequately comprehensively demonstrate trial obligations. assets sufficient meet his fendant’s income and were issue, Irrespective counsel’s effectiveness trial this debt was bur strongest evidence that defendant’s source had acknowl tape, which defendant densome was suicide obligations. Defendant is struggle his meet his financial edged comprehensive how trial counsel’s more unable demonstrate strategy persuasively have and different trial could preparation perception difficult to own that his debt was overcome defendant’s *104 manage. collateral alleged of ineffectiveness concern
Other claims alleged examining ineffectiveness matters such as counsel’s debt, counsel’s failure to concerning defendant’s casino witnesses testimony financial object to Kraushaar’s about defendant’s dire straits, object to questions failure to on cross- and counsel’s financially inferring would benefit that trial counsel examination performance acquittal. or not counsel’s Whether from ineffective, has failed to on those collateral issues was ma any actions likelihood whatsoever counsel’s demonstrate terially affected the trial result.
2. Life Insurance Policies Victim’s B.97, B.98, A.47, A.56, A.57, A.69, B.37-38,
(A.13, A.24-28, A.34,
B.179)
B.160-62,
B.106-08, B.133-37, B.141-42,
discovery
and ineffective-
violations
Defendant asserts various
precluded the defense
allegedly
claims that
assistance-of-counsel
policies on Maria Mar-
demonstrating that
the insurance
from
motive for her murder.
not constitute a
We
life did
shall’s
merits and conclude that
their
claims on their
those
address
evidentiary hearing
appropriate.
was
without
dismissal
discovery violations relate to the State’s
claims of
Several
discovery
the contents of the files of
provide in
most of
failure to
attorney
Mrs. Marshall had retained to
O’Malley,the
whom
Edwin
marriage.
in her
Defendant
concerning problems
advise her
policies
file contained lists of insurance
contends that that
in Mrs. Marshall’s handwrit
to financial matters
other references
production
have assisted defense counsel
ing, and that its
would
life
rebutting
contention that defendant had amassed
the State’s
coverage
knowledge
her
and con
on his wife without
insurance
sought
Although
proofs
to establish Mrs. Mar
sent.
State’s
life,
unfamiharity
insurance on her
with the amount of
shall’s
Indeed,
appeal
on direct
we had occasion to
issue was contested.
testimony
admissibility
hearsay
intended to establish
review the
knowledge
specific
about a
insurance
Mrs. Marshall’s lack of
testimony
policy,
we concluded that the admission of the
strongly suggests
“the record
that Mrs.
harmless error because
applica
Marshall must have been aware that the examination and
I, supra, 123
tion form related to life insurance.” Marshall
N.J.
Moreover,
extensively
defendant testified
Defendant’s ineffectiveness-of-counsel claims category generally relate failure this claim counsel’s testimony procure expert testimony to corroborate defendant’s placed of the amount of insurance on the about the reasonableness life Other claims include counsel’s failure to of Mrs. Marshall. O’Malley, object interview Edwin counsel’s failure to to so-called O’Phelan, expert testimony employee elicited from Maria Co., Minnesota Mutual Life Insurance and counsel’s failure to request prosecutor a mistrial or curative instruction when the during cross-examination of John Zerrer stated that one does not money selling you make much term insurance “unless collect on a policy.” credibility testimony
Although about the the amount of life insurance force on Mrs. reasonableness of obviously corroborating been enhanced Marshall would have *107 expert, independent we cannot conclude that testimony from an expert testi- any presentation of such there is likelihood that jury’s The uncontroverted mony could have affected the verdict. life that Mrs. Marshall’s was insured evidence demonstrated million in life insurance and that most more than one dollars acquired year policies in which homicide had been elicited, testimony jury expert No matter was occurred. what his debt and relation- infer from the evidence of defendant's could that the amount of insurance could ship with Sarann Kraushaar unpersuaded for the homicide. We are have constituted motive materially prejudiced by any of the other that defendant of ineffective- forming the basis claims omissions counsel alleged inter- insignificant counsel’s failure to consider ness. We O’Malley, and in view Maria O’Phelan did view Edwin our merely practices about the expert testimony but testified provide unprofitabili- The employer. prosecutor’s her remark about highly inappropriate the trial ty selling term insurance was objection, reject but we properly sustained counsel’s court failing request was deficient that counsel contention or curative instruction. mistrial ON DEFENDANT’S ALLEGED INFRINGEMENTS
G. TO RETAIN COUNSEL RIGHT E.8) E.l, B.99-100, B.170-72, B.214, B.222,
(B.29, B.39, prosecutorial category allege instances of in this claims stemming counsel assistance of defense misconduct and ineffective infringements right retain counsel. from State counsel pertain to the manner in which defense of the claims Most the fact that defen- during the trial addressed prosecutor and the early in the course of the State’s had retained counsel dant alleged investigation Two claims involve the State’s in this case. right to retain counsel. pretrial interference with defendant’s merits, Adjudicating they the claims on the we conclude that do evidentiary hearing not warrant an and are without merit. trial, opening In his statement at defense counsel sum marized the facts of the case and mentioned that defendant had police investigating retained counsel while the were still Maria Marshall’s death. Defense counsel made comment explaining cooperated fully context of that defendant had with the police investigation. alleges Defendant now that defense counsel’s comment constituted ineffective assistance of counsel because it might jurors early have led to infer that defendant’s retention of guilty counsel indicated that he was of Maria Marshall’s murder. disagree entirely appropriate. We and find that the comment was Kraushaar, DeCarlo, Oakleigh Sarann and one of defendant’s Investigator each Mahoney’s Septem- sons testified at trial about 21, 1984, interview, ber interview with defendant. At the defen- Mahoney’s questions dant answered one or two of and then *108 interview, explaining by terminated the that he had been advised attorney speak representatives prosecu- his not to with from the tor’s office. trial, question
At
the court
ordered
State not to
early
However,
witnesses about defendant’s
retention of counsel.
son,
DeCarlo and defendant’s
both of whom were called as defense
witnesses,
testimony
mentioned in the course of their
that defen
questions
September
dant had declined to answer
attorney.
Kraushaar,
Similarly,
interview on the advice of his
State,
by
September
called
mentioned defendant’s
21 refusal
questions
to answer
filings,
the advice of counsel. In his PCR
defendant asserts that defense counsel should have informed
order,
DeCarlo and defendant’s son about the court
and that
prosecutor
counsel should have told the
to tell Kraushaar of the
view,
court order.
In
present
our
defendant’s claims do not
prima
case of ineffective assistance of counsel. Defense
facie
justifiably
counsel
could have concluded that there was no need to
example,
tell the witnesses of the order. For
defense counsel
might
simply
question-
have reasoned that he would
refrain from
counsel,
of
ing
retention
the witnesses about defendant’s
similarly
by
prosecutor
abide
the court’s
would
assumed that
volunteering of the information
In
of the witnesses’
view
order.
counsel, hindsight suggests that
it
concerning
of
the retention
all
prudent
counsel to ensure that
have been
for defense
would
However,
of
order.
counsel
informed
the court’s
witnesses were
Moreover, any
unreasonably
electing
act
not
do so.
did not
beyond a
doubt. See
part was harmless
reasonable
error on his
I,
(finding
that
supra,
Defendant also that Zeitz concerning after testified or curative instruction DeCarlo mistrial However, early because that retention of counsel. defendant’s preju- testimony ensuing comments did not prosecutor’s and the ibid., extent, we conclude that appreciable to an see dice defendant allegation is meritless. inef that defense counsel was Defendant further asserts alleged effect attempting to alleviate the detrimental fective mentioning early retention coun of the witnesses’ could Specifically, defendant asserts that defense counsel sel. *109 by noting jury’s perception that improved of defendant have during police investiga had counsel Kraushaar also retained have argues that counsel should tion. Defendant also defense Russo, attorney have testimony of who would presented the John attorney at such an explained defendant had consulted 8, 1984, police’s September early stage of this case because view, may In our defense counsel search of defendant’s office. represent reasonably he could best his client have decided that reminding than concentrating on other areas of his case rather Moreover, early with counsel. jury of defendant’s contact cumulative because Marshall testimony of Russo would have been attorney he had contacted a defense after the himself testified that search of his office. inability per with Zeitz’s
Defendant also takes issue testimony trial not to admit into evidence the suade the court when, Mahoney. Mahoney Septem Investigator testified that on 21, 1984, he first had confronted defendant with the names of ber Davis, Billy Wayne Jimmy appeared defendant McKinnon “visibly alleges upset.” Defendant that defense counsel should argued Mahoney’s purpose confronting have sole September provoke invoking defendant into his was “to counsel, right purpose observing physical for the his reac offering legal support, argues, tion.” Defendant without that the Mahoney’s testimony trial court would have excluded had defense argument. counsel made such an The record reveals that defense effectively argued Mahoney’s testimony limit counsel and suc having significant aspects testimony of that ceeded certain argument excluded. Defendant’s is without merit. Defendant complains concerning that Zeitz failed to interview witnesses also 21, 1984, September the incident at Marshall’s household on leading incorrectly during counsel to assume cross-examination of present drinking Kraushaar that those had not been alcohol when Mahoney transcript arrived. Our view of the trial is that counsel’s that no cross-examination Kraushaar was effective and conceiv prejudice question able to defendant resulted from the and re sponse concerning type beverages being consumed. argument category alleges
Defendant’s final this improperly right interfered with defendant’s to counsel State by asking companies insurance not to make disbursements on policies. Maria Marshall’s life insurance The beneficiaries of the *110 children. claims policies question in were defendant’s Defendant money from insurance his children received the that had money his devoted more of own companies, defendant could have his find this providing to children. We to his defense less First, has to demon- without merit. defendant failed claim to be compa- purpose contacting the insurance strate that the State’s Indeed, may have appears that the improper. it State nies was flight, attempting than acting to reduce the risk of rather been Moreover, right counsel. defendant interfere with defendant’s any money as prima showing no withheld has made facie fact, that at efforts. In the record reveals a result of the State’s paid by companies portions policies the insurance least were ability timely There is no evidence that defendant’s in a manner. by the State’s conduct. effective counsel was affected to retain DEFENDANT’S MIRANDA H. ALLEGED VIOLATIONS OF RIGHTS H.l)
(B.20, B.22, F.l-2, pretrial category allege state- The that certain claims this into evidence in viola- were introduced ments made defendant of Miranda counsel was constitu- rights, and that defense tion his rule persuade the trial court to tionally attempting deficient claims Adjudicating the statements were inadmissible. those evidentiary merits, they we do not warrant on the conclude merit. hearing and are without day police questioned defendant three times on
The death, 7,1984. September They defen asked Maria Marshall’s at the crime scene and continued preliminary questions dant few Defendant at defendant’s house. inquiries few hours later their police local bar voluntarily accompanied the officers to the then give a formal racks to statement. police required that the had not been
The trial court found interro- of his Miranda rights before the three inform defendant custody at had been in gation defendant sessions because questioned at the agree. police We those times. they question any his home would victim crime scene and at as crime nor a crime. Neither the scene or witness to *111 reasonably setting. be a custodial Similar- home could considered accompanied police officers the bar- ly, when the to defendant racks, voluntarily support his he himself he claim that did so to police that he explained a defendant was had been victim. short, any at In custody in that he free to leave time. not and was September questioning that the 7 defendant has not demonstrated interrogation implicating Mi- constituted custodial Thus, rights. properly defendant’s statements were admit- randa into ted evidence. argues in
Defendant also that his counsel was ineffective report by using police compiled *112 be should dismissed. forms, varying that allege, claims in defense
Fifteen
of
was ineffective because
representation
counsel’s
during
adequately
qualify”
jury
the voir
counsel did not
“death
the
I, supra,
explained
In
in
ease.
Marshall
we
dire
this
juror
potential
death-qualifying
jury,
“ask[s]
the
of each
a
court
thorough
questions
juror’s
about that
attitude con
probing
juror
cerning
penalty,”
potential
that each
can
death
to ensure
90-93,
fairly apply
law.
is no
for
concluded and defen
jurors
guilt phase
had
tion of the
after
question
not
wheth
had been convicted. We need
reach
dant
request was
post-conviction death-qualification
er the absence of a
reasonable, strategic
made
defense
product
of a
decision
Instead,
component
prejudice
we address the
counsel.
test,
preju
not
and conclude
defendant was
Strickland/Fritz
death-qualification
post-conviction
re
by the
of a
diced
absence
made,
because,
it
have
quest
request
if that
had been
would
even
qualification would necessitate
been denied. Post-conviction death
juries
penalty phases
impanelling
separate
guilt
for the
trial,
this
capital
plainly
that is
inconsistent with
of a
a result
holding
desire
to death
that a defendant’s
not
Court’s decisions
justification
jury
impanel-
is
qualify guilt-phase
insufficient
Bey, 112
ling
separate juries
capital
State
case. See
v.
two
(1988)
Ramseur,
128, 150,
II);
(Bey
v.
106
A.2d 887
State
N.J.
548
(1987);
Erazo,
123, 251-54,
v.
126 N.J.
N.J.
In addition points questions that trial counsel should fendant to sixteen other *113 jurors during requested to each of the voir have the court ask concerning jurors’ atti- questions inquiries include the dire. The Edge. guns, Jagged movie policies, toward insurance and the tudes thoroughly that none We those claims and conclude have reviewed present questions of that defense counsel constitutional- them ly required request. to present questions that defense
Forty defendant’s claims jurors ask requested the court to individual counsel should have jurors gave to responses the those up follow order to example, For defendant asserts questions. earlier dire voir concerning drug probed should have further the defense counsel juror juror daughter, prior case which problem Axelrod’s juror, juror marital status of Hill served as had entirely parents. that all of those claims are Litwinczuk’s We find questions that claims Many of defendant without merit. remaining actually The been asked were asked. should have by would have been irrelevant questions suggested now unnecessary. juror simply or to the issue bias alleging that the cumu also two claims Defendant raises request questions more detailed of counsel’s failure to lative effect a fair and right be tried on voir dire denied defendant view, claims jury. individual impartial In our because defendant’s merit, cumulatively those entirely even viewed are almost without the fairness not erode this Court’s confidence claims do Strickland, 694, 104 supra, 466 U.S. at S.Ct. jury See selection. whole, that, find on the counsel’s L.Ed.2d at 698. We thorough competent. during performance voir dire was pertain the trial court’s claims Two During juror Stephen cause. Calabro for not to excuse decision acquainted with trial, court that he was informed the Calabro with casino and that he was familiar of the State’s witnesses one records, subject had testified. which witness credit about with he had mid-trial conversation noted that had Calabro also testimony. juror of the witness’s another about the substance presence of the questioned outside the Calabro in camera court attorneys. and numerous assurances questioning After extensive the court elected impartial, he could remain from Calabro that ques court’s with trial We are satisfied to excuse Calabro. the court’s tioning no reason disturb of Calabro and find juror in this as a discretionary ruling that Calabro was fit serve ease.
230 in ineffective defense counsel was claims that
Defendant
present during the court’s discussion
he be
failing
request that
to
counsel, after
However,
the record reveals
with Calabro.
defendant,
question
Calabro
asked the court
conferring with
juror would not
attorneys so that the
presence
outside
singled out.” Counsel’s
picked on or
...
intimidated or
“feel
of counsel.
ineffective assistance
request does not reflect
to the trial court’s
pertains
claims
of defendant’s
One
I, supra,
In Marshall
juror.
Marzano as a
qualify
Neil
decision
responded “no”
that Marzano
the record indicates
we noted that
fairly
he could
question on voir dire
concerning whether
to a
testifying at
credibility
officials
of law-enforcement
evaluate
88,
asking
noted that after
trial. 123 N.J.
at
[Id. 88-89, review, to move trial counsel’s failure defendant criticizes On PCR request follow-up questions or to exclude Marzano for cause However, in view of the negative answer. concerning Marzano’s see id. juror, as a was fit to serve fact that Marzano accurate, transcription if the of Marzano’s answer A .2d even prejudice defen remedial action did failure to take counsel’s prima case Accordingly, has not set forth a defendant dant. facie argument. support of his Strickland/Fritz concerning the general forth claims Defendant also sets First, he voir dire was conducted in this case. manner which failing ask the trial court ineffective in contends that Zeitz was attorney-conducted voir dire instead of the traditional to allow However, explain fails to questioning. court-conducted use of court-conducted voir dire prejudiced how he was I, swpra: in Marshall this case. As we noted *115 the trial court and consistently repeatedly acquiesced With but few exceptions, jurors reinterrogate about sub- to prospective specific defense counsel’s requests thorough jects. and and of voir dire was meticulous, The trial court’s conduct the painstakingly to counsel’s concerns the of about scope inquiry responsive subjects specific required amplification. 85.] [123 94, at 586 A.2d N.J.
This is merit. claim without in fail asserts that Zeitz was ineffective
Defendant also peremptory challenges offset the ing request to to additional County, of impact pretrial publicity in Atlantic the site adverse of However, previously have concluded that defendant’s trial. we juror by pretrial any was so tainted is “no indication that there * * * * process We are publicity as to affect the deliberative prejudice no of from convinced that there was ‘realistic likelihood ” omitted). (citation 78-79, A .2d 85 pretrial publicity.’ Id. 586 request Thus, prejudiced by Zeitz’s failure to defendant was not peremptory challenges. additional improperly trial court alleges
Defendant also that the by notoriety ease jurors’ on the of this the attention focused in the courtroom. referring presence to of television cameras the coverage, explained to the trial court respect In of the television jurors: the to ... is entitled attend. Obviously, persons
A trial matter. public public into this in such numbers that cannot come they physically wish to attend trial may to cover the trial, The news media think it the courtroom. may appropriate cameras can be in the courtroom of this state has decided that Court Supreme guidelines how come to be ... and that is these persons under certain controlled not, limited in number. are as They you in the courtroom. are They present just jurors. ignore photograph if So, can, or you to televise know, permitted them. subject entirely on this to be court’s comments We find trial appropriate. pro not trial counsel did
Lastly,
claims that
defendant
asking
representation
the course
vide
of defendant
effective
during
to the media
two
the courtroom
the trial court
close
argued
hearings.
to the
court that
pretrial
Counsel had
trial
jury
compromised if the
right
impartial
be
could
coverage
the hear
hearings
media
because news
attended
jurors.
court
ings
pool
potential
infect the
The trial
could
courtroom, citing, among
other
denied the motion
close the
reasons,
give
failure to
notice
his motion
defense counsel’s
Williams,
media,
v.
required by our
in State
as
decision
(1983).
basis,
39, 72,
now
459 A.2d
On that
N.J.
of counsel
argues that he did not receive effective assistance
However,
during
pretrial hearings.
not
the two
defendant was
give
requisite
to the
prejudiced
counsel’s failure to
notice
First,
noted,
press.
there
additional
as
trial court
were
requirements
closure
of Williams test
court
that defendant
demonstrating
satisfy, including
open
could
that an
court
trial,”
prejudice
would
in a “realistic likelihood of
to a fair
result
id. at
459 A.2d.
there were no reasonable
*116
Moreover,
court
there is “no indication
alternatives to
closure.
juror
by pretrial
any
[at
trial]
that
was so tainted
I,
process.”
supra,
publicity
affect
as to
the deliberative
Marshall
78,
J. CLAIMS OF MIS- MISCELLANEOUS PROSECUTORIAL
CONDUCT H.15)
(E.3-7, E.21,
category
pertain
The claims in this
various instances
prosecutorial
allegedly
occurred
misconduct
at defendant’s
example,
following portion
trial.
asserts that the
For
defendant
prosecutor’s opening
improperly
the fact
statement
referred to
(cid:127)
lawyer:
had
defendant
hired a
judicial
brings
An
a tool
in om-
a case to
indictment
that we use
which
system
a
This indictment
its
in that
it has
has served
particular posture____
purpose
brought
together,
Mr.
us 'all
two of the
named
Court, myself,
defendants,
them, and,
Marshall and Mr.
most
hired
Thompson,
lawyers
by
importantly,
gentlemen,
facts of
ladies and
who will
be called
decide the
you,
ultimately
upon
this case.
argues
prosecutor
misconduct
also
that the
committed
Defendant
during
by stating,
his
introducing “victim-impact evidence”
in
just
case—not
a murder
opening remarks: “This is murder
forty-two-
for hire. The execution of a
case—but a case of murder
mother;
killing
and
solicited and
year-old
River housewife
Toms
husband,
by
Most of
defendant Robert Marshall.”
paid
her
category similarly
remaining claims in this
criticize brief
during
by
prosecutor
the course of
trial.
made
comments
thoroughly
conclude that
have
all of the claims
reviewed
We
they
entirely
merit
do not warrant extended
are
without
Indeed, many
claims are mere restate-
of defendant’s
discussion.
rejected by this
on defendant’s direct
of claims
Court
ments
I,
152-64,
K. TRIAL COUNSEL’S DEFENDANT’S DUCE EVIDENCE CORROBORATING TESTIMONY B.178, B.186-89,
(B.33-35, B.40, B.60, B.101-02, B.144-45, B.204- B.227-29) B.224, allege trial counsel category in this that defendant’s The claims have failing present evidence that would ineffective during his assertions made corroborated various *117 allegedly testimony. Among the that counsel trial assertions at the time insistence that failed to corroborate are: defendant’s himself; kill tape” truly planned he to he made the “suicide genuine; wife was claim that his love for his late defendant’s investigator he hired not to murder statement that an defendant’s Adjudi- wife, investigate to her financial activities. but rather his merits, category on we that eating claims this conclude evidentiary they hearing. be dismissed without should category pertains to The first of claims this set testimony that he checked into Best Western defendant’s 27, 1984, with the intention of September in Lakewood on Motel trial, testimony, questioned life. At the State that taking his own staged purported suggesting that had his suicide at defendant review, that tempt. PCR defendant asserts trial counsel On and, investigated claim as a re inadequately defendant’s suicide sult, argue jury that unprepared to defendant’s suicide was argues plans Specifically, counsel were sincere. defendant that medical con failing was ineffective to obtain various records hospital following cerning psychiatric into a defendant’s admission purported attempt. suicide his
However,
only
presents
defendant
to this Court
one document
attempt
jury
his
arguably
that
could have aided
to convince the
plans
that
suicide
were sincere. That document is the dis
his
Pennsylvania
charge summary
Hospital,
from the Institute of
where,
testified,
stayed
days following
he
as defendant
for twelve
attempt.
discharge
purported
his
Our review of the
suicide
summary persuades
probability
there is
us that
reasonable
result of
trial would have been different had
defendant’s
Strickland,
into
been introduced
evidence. See
document
supra,
698.
466 U.S.
Defendant also that was corroborating testimony concerning love for his in not defendant’s defendant, cross-examining late While the State had his wife. of love for Maria were suggested expressions that defendant’s Referring than to the fact that defendant scripted rather sincere. trial, prosecutor wearing wedding ring his at the asked was Investigator or Kolins had counsel defendant whether defense objected, ring. the and the to wear Counsel advised defendant objection. explained Defendant then that trial court sustained the ring late wife and that he a reflection of his love his the was eager to ring prison in he was do permitted to wear so review, that PCR claims counsel should so at trial. On defendant testimony by calling a to that second witness have corroborated County wearing jewelry. testify against rule Ocean Jail’s about objection question to In view the sustained the State’s thorough response question, to the we and informative defendant’s concluding in that he that counsel was not ineffective conclude by pursuing areas of represent his client other could better inquiry. his asking about his decision to wear
After trial, wedding prosecutor questioned defendant about ring at in a card fact Maria Marshall’s ashes remained “brown that year a after her death. the funeral home” over box at board planned bury explained family had the ashes Defendant Florida, arrest requested, but that defendant’s as Maria had plans. Defen postpone its Florida burial family had forced present failing that counsel was ineffective dant now asserts agent travel testimony from defendant’s sister plans. postponed Defen confirming family’s Florida travel Quinn-Hopping Funeral presents an affidavit from dant also kept in being were that Maria Marshall’s ashes explaining Home “storage Defendant claims the funeral home. room” representative home have from the funeral should been called testify families leave a ashes the funeral often deceased’s *119 period taking possession of of the remains. home for a time before testimony in that decision not to elicit the We conclude sister, agent, question travel or the from defendant’s defendant’s representative not assistance funeral-home does reflect ineffective testimony, presenting Instead of that counsel called to of counsel. fully stand one of defendant’s sons who corroborated witness family’s In explanation plans. Florida burial defendant’s view, topic testimony peripheral further that not our would being materially acquitted have of aided defendant’s chances charged offenses. alleges inadequately that counsel Defendant also trial pretrial police to officers that he dealt with defendant’s statement having during preceding was an extramarital affair the weeks not trial, being his wife’s death. At defendant testified while questioned at the he Bass River State Police Barracks had denied affair, having he admitted trial that he had been at Petracca, testifying had been a lie. Detective for the denial State, substantially police corroborated defendant’s account affair, questioning concerning extramarital testi defendant’s but house, questioning fied occurred not at that the had at defendant’s review, police trial barracks. On PCR defendant claims that testimony impeached have counsel should Petracca’s with Investi gator police Murphy’s report, which stated that defendant’s denial had at the find police the affair been made barracks. We entirely significance claim to without merit. The defendant’s be relationship denial of Kraushaar that the defendant’s his with a lie. the lie denial was The location which defendant uttered case, was irrelevant to defendant’s and thus counsel was testimony attempting in not ineffective corroborate defendant’s point. on that presents pertaining
Defendant three claims to defendant’s rela- Cumber, person led tionship with Robert who defendant Billy During testimony, Wayne his McKinnon. trial defendant becoming involved with explain his reasons attempted party at a hosted explained that he had met Cumber He Cumber. drinking at the had been he and Cumber by neighbor and that told that some of that he had Cumber time. Defendant testified for, accounted and that he earnings could not be his recent missing money. Defendant testified that Maria had the suspected investigator to hire an told that he wanted that he had Cumber missing those funds. locate review, claims that trial counsel was PCR
On failing fact that defendant’s accusations ineffective in to elicit the preceded by concerning his wife were comments made Cumber having marriage. Defen problems that he was his own about presented testimony also claims that counsel should have dant attempted to solicit business concerning the fact that defendant as an insurance from Cumber connection with work *120 However, has not ex agent and financial consultant. defendant materially eliciting aided plained how that information would have claims to without merit. his case. We therefore find these be generally did alleges Defendant that trial counsel also develop strategy” respect “a with to defendant’s not consistent However, investigator. to hire an defendant fails to decision strategy” adopted that explain “consistent counsel could have what defendant’s trial. find this could have affected the outcome of We to be without merit. claim pertain effort to
Two of claims to the State’s defendant’s relationship defendant and demonstrate the existence of a between who, trial, McKinnon, he Billy Wayne at admitted that had State, at participated the murder of Maria Marshall. prove McKinnon in contact tempting to that defendant and were death, defendant’s days preceding in the Maria Marshall’s used he had called Harrah’s Marina Casino phone records to show that staying City in Atlantic at the same time that McKinnon had been have at Harrah’s. Defendant now asserts that trial counsel should phone that defendant had used those records to demonstrate the fact that defendant regular and that on a basis called Harrah’s did indicate that was there not while McKinnon had called there McKinnon. attempt in an to reach the calls had made defendant presented should have argues also that trial counsel Defendant although McKinnon that have demonstrated who could witnesses City September in Atlantic on meeting a and defendant had City solely trip Atlantic make the defendant did not claims that counsel Specifically, defendant meet McKinnon. with testimony representative from the presented should have Harrah’s, testify Restaurant, located which is Meadows reservations at location before had made dinner defendant had learned that McKinnon was date on which defendant testimony, argues, cor- City. would have Atlantic That concerning testimony his motives for defendant’s own roborated September City 6. going to Atlantic on view, concerning relationship be- In our these two claims In his are without merit. testi- and McKinnon tween defendant ongoing communi- mony, that there had been defendant admitted The issue that defendant him and McKinnon. cations between disputed those communications at trial was whether State testimony plot Maria Marshall. The to murder had included frequency of defen- concerning the reservation and restaurant to that critical would have been irrelevant dant’s calls to Harrah’s pursue electing ineffective in thus counsel was not issue and inquiry. those areas pertains to testi claims defendant’s
One mony self-parking valet-parking Har he used instead of night self-parking on that his wife’s death because rah’s *121 eligible prize. The night car for a raffle rendered the owner theory self-parked defendant had his car was that because defense night, car could have passers-by had access damage to defendant’s tire that later caused defen inflicted the Picnic pull Oyster road into the Creek Area. dant off review, counsel ineffective PCR defendant claims trial was On testimony by offering the corroborating defendant’s raffle in not However, the raffle ticket night into evidence. ticket from that materially jury’s evaluation of the not have aided itself would testimony: relating significant issue to this area defendant’s one tampered defendant’s tire at Harrah’s. someone had with whether entirely is almost irrelevant to the raffle ticket itself Because murder, guilty of his counsel question defendant is wife’s whether offering the ticket into evidence. not ineffective trial counsel was Lastly, presents two claims that defendant son, John, testimony who handling of defendant’s ineffective night made the demeanor on the he testified about defendant’s that counsel should have also tape.” Defendant claims “suicide night on the questioned about defendant’s demeanor John death, to ascertain wheth- and that counsel failed Maria Marshall’s that could any information that John knew er there was other However, is unable helpful to the defense. defendant have been possessed could have aided explain information John what Ac- the result of defendant’s trial. ease or affected properly by the PCR court. cordingly, claims were dismissed those THE OF USE L. ERRORS INVOLVING ALLEGED WARRANTS SEARCH E.2) B.90, B.213, B.226,
(B.26, assistance of several claims of ineffective Defendant raises in connection with prosecutorial misconduct counsel and one of trial. Defen- in the course of the to search warrants references have moved in limine that trial counsel should dant claims presence the search warrants preclude references to object- should have claims that trial counsel jury. Defendant also home was testimony that the search of James Davis’s police toed Finally, claims pursuant to a search warrant. executed of a search warrant prosecutor’s reference to the issuance that the impermissible telephone records constituted for defendant’s probable cause that defendant judicial finding of to a reference murder of Maria Marshall. with the was involved *122 240 They to be without merit.
We find those claims jury be shielded proposition in that the should have common the in a have been issued knowledge that search warrants from prior judicial proba the determination matter because criminal jury guilt. are aware may the to assume We cause influence ble a in a are satisfied that authority support such rule. We of no presume guilt jury will not based on properly instructed note, moreover, that fact of a search warrant. We issuance jury necessarily put might be before a that a warrant was issued properly. police acted in order to establish that Milton, N.J.Super. v. Defendant’s reliance on State a (App.Div.1992), misplaced. That case dealt with A.2d 757 capacity to reference to a search warrant had prosecutor’s any jury. not claim that reference mislead the Defendant does misleading, and proceedings in we are warrants these search review the record that the references of from our own satisfied complains accurate. defendant were which category allege in this errors or The balance of the claims warrants, strategy trial connection with search omissions of that, deprived the effective assert the errors defendant of Defendant that trial counsel erred assistance of counsel. claims Mahoney Investigator calling as defense witness establish warrant, procedure obtaining a search because that police testimony jury probable-cause necessarily disclosed to the claims that trial counsel erred determination. Defendant also objecting to in the search of Davis’s house evidence seized support application con- the affidavit in of the warrant because testimony. tained false regard Mahoney, calling Investigator we find
With Mahoney Counsel called that counsel was not ineffective. envelope seized from establish that contents of sealed inventory investiga from an made defendant were omitted That omission is the basis for several other claims defendant tors. PCR review. Trial counsel cannot be faulted for has raised on lay for claims on attempting to the foundation which Mahoney was a find that counsel’s examination now relies. We Furthermore, Mahoney nor neither legitimate strategic choice. *123 in probable-cause determination directly mentioned the counsel holding that the In view of our of the examination. the course impermissi- a search warrant did not cause jury’s awareness of testimony concerning the search guilt, Mahoney’s inference of ble was harmless. warrant that- trial counsel find no merit to the claim
We also Despite defen challenged the Davis search warrant. should have the warrant general allegations that the affidavit on which dant’s testimony, specified has not false defendant was based contained challenged were false. the averments in the affidavit which of probable cause would have it been demonstrated that Nor has swearing Defen lacking alleged false been stricken. had the been only that could that the affidavit relied on information dant’s claim appears have knowledge person of a dead within the have been no basis the record. IN THE JURY CHARGE
M. ALLEGED ERRORS H.16) (F.7-8, H.ll, charge relating trial court’s three claims to the
Defendant raises under Rule jury. court dismissed these claims to the The PCR that, the claims and find the substance of the 3:22-4. We reach presented have not been addressed arguments extent that Court, without merit. previously this each is charging erred in that the trial court Defendant claims cases, more many evidence can be jury that “in circumstantial certain, persuasive than direct evidence.” Defen satisfying, and inadvertently implied that it had claims that the trial court dant more circumstantial evidence was presided over trials which evidence, that, the State’s case than because persuasive direct evidence, also revealed the court primarily on circumstantial relied nothing in the perceive prosecution. in favor of the We a bias deprived defendant of a fair trial. quoted language that could have 242 note, moreover, language appears in the Model that the same
We reject Jury Evidence. We Charge on Circumstantial prosecution or a bias favor of charge claim revealed note persuasion, and that both the State its burden of diluted trial. evidence at relied on circumstantial charge jury objects trial court’s to the Defendant to the “in pistol permits and of itself’ use of a .45 caliber using person it had the jury inference that to draw the court have purpose take Defendant claims that the should life. reject We jury that it free to that inference. instructed the 176, v. in State 131 N.J. approved a similar instruction Martini — (Martini denied, U.S.—, (1993) I), A.2d cert. 619 1208 (1995). charge clearly does L.Ed.2d S.Ct. event, any kill. the intent of an intent to In mandate inference *124 case; question the in the the for of was never issue the shooter jury procured the death of his wife whether defendant had was payment money. of through the charg the in
Defendant claims that
trial court erred
truth,
the
thus
ing
jury
function was to determine
the
that its
beyond
proof
of
a reasonable doubt.
diluting the State’s burden
jury
charged
been
also claims that the
should have
Defendant
evidence,
reject
penalty
any mitigating
on
it
the death
based
could
reject
notwithstanding
weighing process.
the outcome of the
We
134-36,
I, supra,
those
in
123 N.J. at
ed both of
claims Marshall
150-51,
precluded
asserts that he
We page appeal limit on direct briefs. Both of the the two-hundred finding relatively simple. are The trial court’s reference to claims prosecution’s when “truth” did not dilute the burden read jury charge legal the as a There is context with whole. no charge claim that was entitled to foundation he jury disregard statutorily balancing mandated that the could any reject penalty mitigating of process and the death the basis original disposition that our evidence. We are satisfied correct, precluded from issues was defendant was Therefore, any dispositive argument. we find claims raising those to without merit. be THE RELIABILITY OF THE
N. CLAIMS INVOLVING PENALTY-PHASE PROCEEDING H.16) F.17-21, H.12-14, (B.231-66, F.9-14, G.6, E.16-18, primarily general, In asserted in this subsection the claims representation adequacy afforded defendant relate to capital-murder penalty phase his trial. We addressed failure aspects appeal specifically, of this issue on direct counsel’s — mitigating during penalty phase present additional evidence alleged abdication of the role of advocate his and counsel’s concluding those issues that penalty-phase on both summation — performance demonstrably deficient that if was not counsel’s materially argument was it did not summation deficient counsel’s I, supra, 123 165- imposed. Marshall N.J. at affect sentence A.2d 85. questions appeal, those on direct disposition Based on our *125 of all but three of the claims counsel’s PCR court dismissed procedurally relating penalty phase the as ineffectiveness to evidentiary hearing The PCR court held extensive barred. concerning alleged regarding following the claims counsel’s two (1) inquiries treating make of ineffectiveness: failure to reasonable proceed personnel regarding fitness to with medical verdict; phase fainting following guilt-phase the penalty the after (2) that was to inform the trial court defendant and failure court incapable proceeding penalty phase. in the The PCR merits, concluding that the evidence those on the dismissed claims had hearing the had demonstrated defendant adduced at fully fainting spell competent to from his and was recovered disposition. penalty phase. agree with that proceed We with evidentiary hearing apparent- that defendant The revealed PCR guilty ly being after the verdict from fainted while escorted holding summoned the local courtroom to a cell. Sheriffs officers transported Squad squad and members Rescue hospital. examining physician con- nearby to a The ambulance fainting spell guilty a reaction to the that defendant’s was cluded fully no and manifested verdict and that defendant was recovered symptoms that further Defendant warranted observation. County transported back the Atlantic courthouse. then to interim, prosecutors In and counsel had defendant’s trial agreement procedure on the to followed reached tentative be penalty phase. agreement contemplated neither side support aggravating or produce would additional witnesses to agreed aggravating mitigating factors. The State to withdraw victim) c(4)(c) (murder aggravated and involved assault of factors c(4)(d) (murder expectation and pecuniary gain), committed in (commission c(4)(e) rely only aggravating factor of homicide to by payment payment money). Defense procured promised or solely agreed rely guilt-phase on the evidence counsel e(5)(f) (no significant history of support mitigating two factors: c(5)(h) activity), prior stipulated; criminal to which and State material). (any agreed they other relevant Both sides would briefly jury, first counsel then the each address the defense and prosecutor, present argument opposition support and penalty. the death trial at the PCR
Defendant’s counsel defendant testified hearing proposed penalty- evidentiary and confirmed that approved by phase procedure had discussed defen- been with he that he dant. Defendant testified that had told trial counsel *126 fainted, inquired of defendant whether he that counsel had had penalty phase, had go with the and that defendant ahead wished that he and get it over with.” Defendant testified replied, “[L]ets concerning strategy the previously had not discussed counsel penalty-phase hearing. a conduct of penalty-phase he had
Trial counsel testified that discussed occasions, acknowledged prior but strategy with defendant a his he had maintained as memorialization of the written notes penal- did reflect their conversations with defendant numerous specifically that recalled he and ty-phase discussions. Counsel previously had discussed whether Marshall’s sons would testify penalty phase, in that Marshall had called to the and be again opposed testifying. Counsel testified that he to their been testifying during of his raised with Marshall issue sons’ had phase penalty phase, guilt and the their conversation between the indicating opposition, had his that Marshall reiterated and stated to which such to avoid the emotional ordeal that he wished testimony his expose could sons. in testimony affidavits contained the PCR
Relying on both and general- record, specific a multitude of both defendant asserts concerning trial complaints ineffectiveness of counsel ized penalty-phase proceedings. The preparation and conduct complaints, scope than those advanced on general broader adequately prepare appeal, allege that trial counsel did not direct counsel had not penalty-phase hearing and trial for the any possible need for a developed strategy anticipation general implication The com- hearing. clear penalty-phase phase penalty is that trial counsel’s plaints of ineffectiveness no present penalty-phase and to advance no witnesses decision argument against penalty was not in summation death forceful counsel, simply but strategic trial product of a decision penalty-phase preparation utter lack of counsel’s reflected proceeding. support general claims ineffec- primary for the record phase of a from Joan penalty in the consists certification
tiveness Pelt, assigned represent Deputy Defender Public O. Van relief, an affidavit of Richard D. post-conviction defendant on *127 Ruffin, Jr., private practice a as a psychologist who maintains a capital in cases. The Van Pelt certification mitigation specialist of the trial file supervised or the review states that she reviewed counsel, including correspondence trial and file maintained interviews, investigator, Russ and the file of counsel’s notes of include no materials concern- certified that the files Kolins. She case, concerning legal no research ing penalty phase requests charge in mitigating factors or aggravating and cases, reports investigations in phase capital no of penalty mitigation, reports a in no of consultations preparation for case evidence, mitigating no experts presentation in the and with family preparation in with friends or members notes of interviews mitigating presentation for the evidence. Ruffin, experi- D. sets forth his
The affidavit of Richard Jr. preparing “mitigation specialist” who assists counsel ence as a capital Ruffin presenting mitigating evidence in cases. as- and transcript portions penalty-phase and serts that he reviewed the transcript, also reviewed defendant’s of the trial and that he grade through college, as well as educational records from school records, records, investigative military and other various medical proper concerning alleges affidavit that a reports defendant. His mitigation investigation capital in a case should include extensive members, friends, teachers, client, family em- interviews with the school, medical, physicians; of all and ployers, and examination records; preparation comprehensive of a social employment history containing compiled that could be all of the information presenting mitigating evidence. Ruffin’s useful to trial counsel that his review of trial counsel’s file demonstrated affidavit states mitigation specialist failed that trial counsel failed to retain a penalty-phase investigation accepted that met the to conduct a death-penalty experienced in the conduct of standards of counsel my “It affidavit concludes with this statement: trials. Ruffin’s opinion concerning information Robert O. Marshall exists productive mitigation. for a which could have served as basis However, investigate properly failure to result- defense counsel’s sentencing being jury.” to the in this information unavailable ed Ruffin’s does not disclose the nature or Significantly, affidavit about that he concludes of the information defendant content mitigation.” a productive as a basis for “could have served defendant’s claims relat address and resolve on merits We Although phase claims are ing penalty to the of the trial. some appeal, on direct we are similar to contentions we addressed petition in the have a different persuaded that the claims PCR on direct scope than those we reviewed context and broader procedural application of the Rule 3:22-4 and -5 appeal and that 148-54, supra A .2dat 29-33. improper. bars would be See noted, A previously supra at 690 .2dat PCR haveWe evidentiary hearings ... if a “ordinarily grant courts should post- prima support claim presented has facie *128 relief,” requires a reasonable which demonstration of conviction ultimately the merits. the claim will succeed on likelihood that Preciose, 462-63, A.2d We also supra, 129 at 609 1280. N.J. 34-35, noted, 156-57, that supra A. 2d at ineffective assis at 690 two-prong standard of governed claims the tance of counsel are Strickland, representation requiring proof “counsel’s supra, that reasonableness,” of 466 U.S. at objective fell below an standard 2064, 693, a 688, L.Ed.2d and “that there is 104 at 80 at S.Ct. that, unprofessional er but for counsel’s probability reasonable rors, have been different.” Id. proceeding the would result 694, 104 2068, L.Ed.2d at 698. at at 80 S.Ct rejected that we previously the contention have
We
resolving ineffec
[for
standard
“alter the
should
Strickland/Fritz
cases,”
capital
and concluded
for
claims]
tive assistance of counsel
guar
adequately fulfill the constitutional
“will
standard
(1989).
Davis,
356-57,
341,
561
1082
116 N.J.
A.2d
antee.” State v.
594, 626,
Savage,
N.J.
in State v.
120
Except for a brief reference
(1990),
first
in which we have occasion
is the
case
577A.2d 455
this
stan
apply
to
comprehensively
discuss
Strickland/Fritz
capital
Accordingly, we deem
phase
a
case.
penalty
dard
understanding
the manner in
on our
appropriate to elaborate
it
adapted
should be
prong of
prejudice
which
Strickland/Fritz
pro
capital
penalty-phase
of a
case
unique
circumstances
rejected as too
court
ceeding.
recall
Strickland
We
requirement
that “counsel’s
prejudice
a standard
severe
in the
likely than not altered the outcome
conduct more
deficient
693,
2068,
Strickland,
at
104 S.Ct. at
supra, 466 U.S.
case.”
adopted what it described
The Court instead
L.Ed. 2d at 697-98.
standard,
showing
requiring a
of “a
lower”
as a “somewhat
that,
unprofessional er
for counsel’s
probability
but
reasonable
different,” and
rors,
proceeding would have been
the result of the
probability
probability
is a
suffi
observing that
reasonable
“[a]
694,
Id. at
confidence
the outcome.”
cient to undermine
however,
2068,
emphasized,
Although focus of decision, should the ultimate those process principles proceeding fairness of the whose result is must be on the fundamental inquiry challenged. being concerned with whether, In case the court should be every proceeding strong the result of the presumption reliability, particular despite that our of a breakdown the adversarial process system is unreliable because just results. counts on to produce
[Ibid.] application noted that strict of Strickland’s have Commentators poses high obstacle to the successful assertion prejudice prong concerning penalty of counsel claims of ineffective assistance capital cases. phase subjective, grant death or to is mercy inherently Because the decision impose proceeding that “the result of the would have been a “reasonable
prove probability” overwhelming daunting with a horrific crime and indeed. Faced different” imagine jury *129 reviewing guilt, that a would courts are often unable to evidence of death. have sentence but any imposed Eighth Amendment and Assistance Counsel in Capital The [Note, of Ineffective (1994) (footnotes omitted).] 1923, 1931 107 Harv. L.Rev. Trials, Moreover, prejudice prong application a literal of Strickland’s attempt step of appellate courts to into the shoes mandates that if counsel had death-penalty jurors, assessing the likelihood that penalty-phase the adequate representation the result of provided
249 difficulty proceeding would have been different. The inherent unique responsibili- derives from the function and that assessment jury: ty capital aof jury deciding guide no a whether to be merciful There are standards to capital jury jurors, sentencing. constitu- A case have may capital may death-scrupled mitigating and and all reason, may exercise for consider tionally any any mercy substituting weighing valuing it as it short of evidence, pleases. Consequently, reviewing to determine what effect own, a verdict of its there is no for a court way might mitigating A have had on the sentencer’s decision. evidence unpresented mitigating weigh it facts which were court which takes itself consider upon to the and to whether their not sentencer trial decide presentation presented might trier of and denies made a invades the of the fact have difference province right to a of based on all relevant the defendant the determination sentence capital factors. Death Counsel in The Trial Assistance [Gary Goodpaster, for Effective Life: (footnote omitted).] (1983) 58 L.Rev. 354 Cases, 299, N.Y.U.
Penalty
Supreme Court
Mississippi,
v.
Caldwell
In
United
the
States
death-penalty jury
prosecutor’s argument
to a
concluded that
determining
appropriateness
the
of the
responsibility
that the
appellate
ultimately
reviewing
with
death
defendant’s
rested
to the United States Consti
Eighth
Amendment
court violated
2639-40,
L.Ed.2d
328-29,
2633,
320,
472 U.S.
105 S.Ct.
86
tution.
specifically (1985).
opinion focused
The Court’s
jury and
penalty-phase
the role of a
difference between
substantial
reviewing
appellate
of an
court:
function
sentencing
substantial
are
reasons
fear
In
context there
specific
the capital
state-
when
are
well
in favor of death sentences
there
as
as bias
unreliability
sentencing jury
suggestions
shift its sense
may
responsibility
that the
induced
court.
appellate
against
on what an
from institutional limits
clearly
Bias
the defendant
stems
jurors
might not
can
often
understand.
court
do—limits
appellate
encouraged
sentencing
“delegation”
here
responsibility
prosecutor
right
to a fair determination
would
simply
thus
postpone
right,
him of
for an
rather it would
death;
deprive
his
appropriateness
jury,
sentencing
ill-suited to evaluate the
court,
wholly
unlike a capital
appellate
intangibles
jury might
first
Whatever
of death in the
instance.
appropriateness
gleaned
sentencing
can
from an
few
be
determination,
appellate
in its
consider
of the defendant
individuality
This
to confront and examine
inability
record.
devastating
argument
of what this
for consideration
would be
any
particularly
stemming
mitigating factors
from the
“[those]
or
Court has termed
compassionate
[v.
Carolina,
280],
North
428 U.S.
frailties of humankind.” Woodson
diverse
(1976)].
held that a defendant
When we
[96
2978, 2991, 49 L.Ed.2d
S.Ct.
*130
250
right
Eddings [v.
has a constitutional
to the consideration of such
Okla
factors,
(1982)
[v.
1
homa,
104, 102
869,
];
Ohio,
455 U.S.
S.Ct
L.Ed.2d
Lockett
438 U.S.
(1978) (plurality opinion)
98 S.Ct.
586,
2954,
],
clearly
among
that that consideration would occur
sentencers who were
to hear
present
arguments
the evidence and
and see the witnesses.
[Id.
240.]
at
at
We our prejudice of the Strickland/Fritz prong reviewing claims of ineffective assistance of counsel penalty-phase proceedings necessary adaptation to be a literal Strickland appellate standard to the realistic limitations on jury penalty-phase review of Although appellate deliberations. predict penalty-phase jury’s court cannot the outcome of a deliber- ations, entirely capable assessing production it is whether the mitigating likely additional evidence would have been to have a jury’s deliberations. We are satisfied substantial effect penalty- adaptation prejudice prong to of the Strickland our *131 meaning the phase is the core of standard proceedings faithful by court. announced the Strickland of
Concerning
generalized claims
counsel’s
defendant’s
penalty phase,
that
in the
we are convinced
defen
ineffectiveness
a reasonable likelihood that those
dant has failed to demonstrate
has
ultimately
the merits. Defendant
will succeed on
claims
support
allegation
the
that trial counsel’s
offered documentation
may
penalty phase
in
not have
preparation
performance
the
allegation
that
prevailing
with
standards.
been consistent
research,
investigation,
or
no
other
trial
files reflect
counsel’s
phase
disturbing. Although Zeitz
penalty
preparation for the
penalty
the
had
with defendant about
testified that he
conferred
occasions,
acknowledged that
*132
grave
record and of the
of
defendant
offense which
was convicted.
court,
already
request
have noted trial counsel’s
to the trial
We
by
Thompson,
in
concurred
counsel for co-defendant
to limit
jury
death-qualification
strategy designed
of the
as a
a
avoid
227,
jury.
“conviction-prone”
supra
See
at
In specifically our direct we addressed produce mitigat- contention that trial failure to counsel’s additional
253 ing evidence constituted ineffective assistance of counsel. We observed: It is self-evident that of the crime of which defendant was convicted, view mitigating which to selection of evidence on was a matter of some delicacy, rely requiring counsel consider rebuttal evidence and carefully prospect jury’s mitigation arguments, as rebuttal well as the reaction to any anticipated strategic unwilling second-guess evidence that was offered. We are counsel’s
' jury’s in view that both issue, decision on this determination particularly mitigating factors offered had been established. A.2d [Marshall I, 166, 85.] at N.J. supra, closing also that We commented on contention counsel’s argument penalty phase in the demonstrated ineffectiveness: closing argument strategic also from decision to avoid
We infer counsel’s any jury, to the in favor of a statement that that emotional low-key emphasized appeal juror. In the life death decision was the of each individual or responsibility grave convicted, offense of which defendant was context of this record juror’s closing argument his or moral that attention on her responsi- focused each life or cannot be discredited. death bility easily [Id. 85.] at A.2d 167, 586 capital experienced even most no doubt that We entertain difficulty prepar- considerable counsel would have encountered of defen- mitigation penalty-phase for the ing an effective case in difficulty, ascertain on Acknowledging that we cannot trial. dant’s might evidentiary hearing us or an the record before whether penalty phase was preparation for the trial establish that counsel’s Strickland, Nevertheless, following the admonition deficient. 699, L.Ed.2d at at 104 S.Ct. supra, 466 U.S. may claim prong of an ineffectiveness prejudice
disposition of
deficient,
performance was
counsel’s
of whether
resolution
obviate
any likelihood
failed to demonstrate
defendant has
hold that
we
proof
would show
produce
evidentiary hearing would
*133
that,
counsel’s
but for
probability
is a reasonable
that
there
would
errors,
penalty-phase deliberations
jury’s
unprofessional
conclusion, we
reaching that
substantially.
In
have been affected
jury found
that “the
appeal
on direct
observation
reiterate our
[and]
...
by
relied
factors
mitigating
both
good
to defendant’s
trial testified
witnesses
several defense
extensively
testified
community, and defendant
reputation in the
life,
education,
concerning
background,
family
activi
his
and civic
I,
165,
supra,
Defendant evidence, mitigating including testimo present specific types of sister, DeCarlo, Oakleigh about their relation ny from defendant’s impact of defendant’s execution on her ship and childhood and the children; testimony unspecified of an from and nature defendant’s professional; testimony health psychologist a or other mental about likelihood qualified from a social scientist defendant’s of recidivism; qualified professional a health testimony from mental dangerousness; testimony of regarding defendant’s lack future concerning depressive from Dr. Atkins defendant’s state and alleged of suicide suicidal tendencies on the occasion defendant’s Motel; attempt consisting family evidence the Best Western sister; by testi provided to trial counsel defendant’s photographs concerning mony Henry philosophy defendant’s from Tamburin consisting July gambling; of a letter written evidence reduction; support for bail the victim’s father in of motion John, son, concerning defendant’s testimony from defendant’s spoke to from the Best Western Motel mental state when he John likely concerning relationship with defendant and the John’s family; testimony from their impact of execution on defendant’s appropriateness of religious counsellors about the death; testimony establishing as sentencing defendant to would cause specific mitigating factor that defendant’s execution family. hardship on defendant’s Aside and emotional distress frivolous, claim obviously such as the from claims that are relating counsel’s relating gambling expert and that to trial to the consisting family photographs, failure to offer evidence clearly all allegations trial counsel’s ineffectiveness involve strategy. unpersuaded that trial are debatable issues of We type in defen- evidence of described counsel’s failure offer counsel, ineffectiveness of or specific dant’s claims constitutes *135 showing suggesting requisite that an has made the defendant evidentiary hearing probability the would demonstrate would have affected substan- production of the omitted evidence specific tially jury’s penalty-phase Each of the deliberations. that, although pos- involves evidence allegations of ineffectiveness defendant, posed clear risk of an adverse sibly beneficial to jury reviewing In claims of ineffective assistance of reaction. counsel, reiterate that a defendant must show that “counsel’s we reasonableness,” objective representation fell standard of below “[jjudicial scrutiny performance of counsel’s must be and that Strickland, 688-89, highly supra, 466 at 104 deferential.” U.S. 2064-65, at None of defendant’s 80 L.Ed.2d 693-94. S.Ct. specific the failure to offer claims of ineffectiveness based on satisfy mitigating penalty phase in the Strickland evidence standards.. ineffectiveness
Defendant also asserts claims of
mitigating
failure to
as
factors the
based on counsel’s
submit
agreement,
disproportionality
leniency
plea
of McKinnon’s
of a
comparison
sentence for defendant
to McKinnon’s sen
death
tence,
sentencing
disproportionality
defendant to death
yet
notwithstanding
perpetrator
that the
of the murder had not
specifically
accomplice
have held that
sen
been convicted. We
mitigating
penalty-
tencing is
to be considered as a
factor
Brown,
481, 554-57,
phase proceeding.
v.
138
651 A.2d
State
N.J.
DiFrisco,
434, 502-05,
(1994);
Defendant also produce testimony concerning the nature of death lethal
257 (1990), Rose, 61, 65, A.2d 235 injection. In v. N.J. State in the testimony inadmissible such is specifically held that we claim of ineffectiveness Accordingly, defendant’s penalty phase. merit. without er- penalty-phase generalized claims also asserts
Defendant present- argues inadequately that he were ineffectiveness ror and reject on the same basis those claims appeal. We ed on direct penalty- generalized claims of reject other that we phase ineffectiveness. alleging that sever claims also asserts miscellaneous
Defendant deprived jury penalty-phase instructions trial court’s al of the reject those claims on rights. We of constitutional reject penalty- the claims the same basis that we merits on request relating trial counsel’s failure to phase ineffectiveness 254-55, phase. Supra at penalty specific instructions *136 A .2dat 83-84. in the prosecutorial misconduct also claims
Defendant improperly ad contending prosecutor the phase, that penalty nothing arguing in that there was personal opinion his vanced wife, and family as one’s killing a member such heinous than more nonstatutory aggravating jury to consider as requesting killing the fact that defendant’s and the heinousness of factors on direct Although issues were raised related was his wife. victim In on their merits. those claims and dismiss appeal, we address to the directly related view, were prosecutor’s remarks our jury and did not found alleged and aggravating factor nonstatutory aggrava personal views or reliance on constitute ting factors. effect of alleges the cumulative
Finally, phase penalty in the of counsel of ineffectiveness all the claims of rights. We of his constitutional deprive defendant combined large of a The assertion on the merits. reject those claims does not of counsel of ineffectiveness related claims number of affect sub capacity or significance necessarily enhance their reject cumula We penalty-phase deliberations. stantially the claims. rejected the individual grounds that we tive claims on penalty- force unpersuaded are that the cumulative of all the We measurably greater than that of the individual phase claims is claims. VIOLA-
O. ALLEGED MISCELLANEOUS DISCOVERY TIONS “i”) A.79, A.91-97;
(A.11, A.15, A.60-65, A.84-86, claim add-on category allegations number of in this are a unrelated Included discovery asserts that those violations violations. Defendant their materially prejudiced his address all claims on defense. We evidentiary hearing an merits and conclude dismissal without appropriate. prejudice first asserts because of the State’s Defendant copies supporting of all and provide pleadings failure documents applica support filed with the State Louisiana State’s Cumber, McKinnon, Billy Wayne tions to extradite Robert James Davis, Larry Thompson, explain materiality of but fails to specify prejudice those documents or to the nature of suffered. they examination us persuades Our of the documents contain significant no information not otherwise available to defense coun prejudice nonproduction. from their sel that no resulted prejudice next claims of the State’s Defendant because produce discovery failure to defendant’s letter dated October 10, 1985, County Captain requesting Hedin of the Ocean Jail “contact a woman named Karin O’Dell. Defendant also visit” with prejudice unidentified asserts because the nondisclosure concerning relationships other memorandum with referred, Kelly women Assistant as well as to which Prosecutor *137 about a the nondisclosure of source of the State’s information concerning his sons Karin conversation between defendant and context, prejudice claims because O’Dell. In the same defendant any reflecting of the State’s nondisclosure memoranda investigation concerning the status of Maria Marshall’s ashes conduct, post-homicide investigation its of other for defendant’s use defendant’s cross-examination. challenges to the appeal addressed his direct we
On defendant’s evidentiary rulings permitting cross-examination trial court’s his disposal his wife’s ashes and concerning the defendant I, death, Marshall after his wife’s relationships other women with 85, 126-29, concluding the trial A.2d at supra, 123 N.J. rulings sustained: discretionary should be court’s subject Although was a affection for his wife proper we find that defendant’s defendant’s failure to it is a matter of whether cross-examination, speculation We arrange on that issue. of his wife’s ashes was probative for burial particularly prejudice of that to be testimony from the admission also find the potential did significant. that the State’s cross-examination conclude, however, cannot We jury to defendant’s could have found to be material adduce evidence that not note that defendant had for his deceased wife. We also stated affection wedding ring, his wife’s his conduct with to the respect explain opportunity it record, this is debatable with two other women. On and his ashes, relationships prejudice out- from this evidence “substantially for undue whether the potential Carter, v. 91 N.J. at 449 A.2d value,” State weigh[ed] supra, the probative ruling on this issue was well that the trial court’s and hence we are satisfied of discretion. its broad ambit within 85.] A.2d [Id 128-29, alleged challenge on the State’s present focuses Defendant’s discovery any memoranda or course of produce failure to developed investigation that reflecting the State’s other documents during defendant’s by prosecutor information used the factual identi- only specific document defendant The cross-examination. 10, 1985, Captain Hedin of the dated October fies is his letter a woman named County requesting a contact visit with Jail Ocean O’Dell, must have although implies that State defendant Karin during that were used or memoranda possessed other documents produce the letter failure to State’s his cross-examination. asserts the State unexplained, but requesting the contact visit conceivably altered defendant’s have production could that its apparent the State’s testify. We are disturbed decision to requesting nonproduction of the letter inability explain the Nevertheless, of the bur- falls far short contact visit. probability that the result demonstrating a reasonable den of letter, any if or other have been different the trial would cross-examination, had been during used documents *138 260 supra, at
produced. Bagley, 473 U.S. S.Ct. See J.). Blaekmun, opinion (plurality of 87 L.Ed.2d at allegation prejudice of find meritless defendant’s We of memoranda of inter arising of nondisclosure out the State’s September allegedly- Kraushaar in 1984 that views with Sarann and the suggested a connection between the Marshall homicide explain the Craparotta. Defendant fails to murder of Vincent similarly materiality alleged find merit- of nondisclosure. We nonproduction of prejudice of based less defendant’s claims on investigative by Investigator Murphy notes made Edward various of by and Lieutenant Churchill. Neither our examination James materiality nor defendant’s briefs reveal their or those notes prejudice nonproduction. caused their The lack demonstrat prejudice materiality requires ed or also dismissal relating pos to the State’s failure disclose information claims list never by two individuals the State’s witness who sessed Finally, prejudice at trial. due to the testified defendant claims LaSalle, mailing prepared by to produce failure list State’s raffle, according Inc. from Harrah’s which to defendant would self-parking had on the have that he used at Harrah’s established night and his vehicle accessible of the homicide therefore made subject tampering. tangential that the We are satisfied having materiality precludes of that document its resulted prejudice to defendant.
P. ALLEGED CLAIMS OF INEFFEC- MISCELLANEOUS ASSISTANCE OF
TIVE COUNSEL (B.2, B.30, B.65-67, B.69, B.79, B.91, B.7-9, B.ll, B.23, B.27-28, B.138, B.157-59, B.163-69, B.182, B.109-10, B.146, B.151, B.184- B.267, 85, B.192-94, B.196-203, B.211, B.215-17, B.220, B.230, a-h) E.14, F.5, add-on claims laundry subcategory
In
asserts a
list of
this
veritable
encompass
assorted claims of ineffective assistance
counsel
guilt
virtually every
performance during the
aspect of counsel’s
phase
their
the trial.
address all claims on
merits
We
hearing
conclude that their dismissal without
warranted.
evaluating
previously
elaborated on the standard for
have
We
*139
counsel, supra at
claims
ineffective assistance of
defendant’s
of
156-57,
A.2d
first must show that
690
at 34-85. Defendant
deficient,
performance
requiring a demonstration
counsel’s
representation
objective
of
fell
an
standard
that “counsel’s
below
688,
Strickland, supra,
at
466
at
104 S.Ct.
reasonableness.”
U.S.
Second,
2064,
L.Ed.2d at 693.
“defendant must show
80
that,
unprofes
probability
a
but for counsel’s
there is
reasonable
errors,
proceeding
the
the
been
result of
would have
sional
probability
to
probability
A
is a
sufficient
different.
reasonable
694,
in
at
at
confidence
the outcome.” Id.
104 S.Ct.
undermine
Moreover,
2068,
in
L.Ed.2d at 698.
the Court
Strickland
“a
pragmatically observed that
court need
determine whether
preju
performance
examining
was deficient before
the
counsel’s
by
alleged
as a
deficien
suffered
the defendant
result
dice
cies____
dispose
If it is
claim on
easier to
of an ineffectiveness
prejudice,
expect
we
ground of lack
sufficient
which
will
of
697,
so, that
be
Id. at
104 S.Ct.
often be
course should
followed.”
2069,
at
Both the number miscellaneous claims subject widely diverging prompts and matter ineffectiveness their prong prejudice of the Strickland standard. us to focus by claims concern issues addressed this note that some of the We City appeal. Thus our of Atlantic Court on direct resolution 73-79, issue, I, supra, A.2d 123 N.J. at venue Marshall Henry testimony Tamburin and dealing issues with the and of Marshall, 129-31, id. 586 A.2d establish John dealing subjects properly should with those ineffectiveness claims prejudice. on the lack of demonstrated been dismissed based have claims concern defense the ineffectiveness A substantial number of alleged perform preparation tasks failure to various counsel’s adequately failed to that counsel for trial and include assertions witnesses; pretrial prepare to make various defense interview motions; from preclude make to the State to motions limine evidence; discovery, resulting in to turn eliciting prejudicial over prevent testimony; to on defense witness limitations attorney; prevent being by and to from interviewed Cumber’s holding press investigator from conference defendant’s Irrespective whether those and making prejudicial statements. constituted deviations analogous pretrial omissions counsel reasonableness, objective con we are fell standard below alleged cannot demonstrate that counsel’s vinced that defendant collectively individually pretrial either or had deficiencies proceeding. uphold We capacity change the result of the all claims. dismissal of such alleged approval of claims relate to counsel’s
Several Thompson’s grant permission to co-defendant wife defendant’s trial, during home to counsel’s failure to reside prevent offering arrangement, evidence of this the State from jury request specific charge and to counsel’s failure to prejudice it. note that undue because of We counsel’s avoid *140 objection Thompson’s living ar to evidence of Mrs. strenuous by rangements was trial court. counsel’s overruled Whatever been, may permit Thompson’s have decision to role defendant’s and, occasion, to wife reside in his home on watch over to regarded But youngest defendant’s son must be as aberrational. charges jury’s acquit Thompson suggests of all that decision to alleged any to of counsel’s involve prejudice defendant because during Thompson’s residing concerning ment or omissions Mrs. capacity to trial the Marshall home did not have the affect at verdict. claims relate to trial counsel’s
Several ineffectiveness
disqualify
representing
recuse
himself from
failure to
or
testimony
provide
present
in
he
order that
could
that defendant’s
helpful
have
to defendant.
noted
counsel contends could
been
We
claims,
assessing
a court
avoid
that
ineffectiveness
“must
earlier
viewing
guessing
tactical decisions and
second
defense counsel’s
”
hindsight.’
‘distorting
Supra
effects
those decisions under the
Strickland,
689,
supra, 466
at
(quoting
at
contentions witnesses; a interrogation failure move for mistrial of certain to occasions; object portion failure to a of the assistant to on several statement; anticipate legal argu opening failure to prosecutor’s her of a letter from Marshall to concerning ment admission Maria defendant; testify attorney; failure to recall State witness prosecutor respective their with the assistant agreement present interrupted; and would not be failure summations theory closing. attempting assess whether Without coherent represen constitutionally deficient any allegations of those involve tation, has not established fully we are satisfied that defendant deficiencies, alleged those but for and could establish probability cumulatively, is a individually there reasonable different. the result the trial would have been prosecutorial one claim mis- subcategory This also includes violation, alleged discovery of which we both conduct one addition, add- In defendant asserts various dismiss as meritless. spectator’s during to a outburst claims that relate concerning disposal of his wife’s ashes. We cross-examination claims had that none of add-on ineffectiveness are satisfied the trial result. capacity affect
Q. THAT THE DEATH-PENALTY ALLEGING CLAIMS *141 THAT THE AND IS UNCONSTITUTIONAL
STATUTE IN DEATH-PENALTY PROCEEDINGS APPELLATE INADEQUATE BEEN AND THIS CAPITAL CASE HAVE UNRELIABLE
(G.l-9,1.1-19) subcategory allege a in this claims
Five of the asserted right to counsel of defendant’s constitutional number of violations appellate post-conviction relief to reliable and effective and and are his and sentence. All such claims of conviction death review legal prevent significant matters trial failure to based on counsel’s being During the trial. the from resolved off record at and issues prosecution compel moved to both proceedings, PCR counsel PCR attempt and to to their trial notes defense trial counsel review and subjects reconstructing concerning certain a record collaborate motion, In support the of allegedly omitted from trial record. the from specifically to the omission the trial counsel referred PCR jury to of transcript any of reference the race of the members the fainting guilt- panel, spell between the return the penalty phase, phase the commencement of the and verdict and penalty phase to at the commencement of the the State’s decision alleged aggravating factors. The court two the PCR dismiss motion, years noting elapsed the the that seven had since denied trial, permitted independent but PCR counsel to conduct application supplement the inquiry with to renew the leave specific about manner in record based on a assertion which occur. Because are unable to discern supplementation should we any prejudice alleged from the that defendant has sustained during appellate, proportionality, record either or omissions review, claims be PCR we conclude that those should dismissed hearing. merits their without
Concerning specific contentions that the record’s omission of fainting spell guilty any reference to defendant’s after the verdict deprived penalty precluded of a effec defendant reliable trial thereof, already appellate tive review we have determined that fainting spell reliability did not affect fairness defen trial, penalty supra at dant’s 690A.2d at and our review of opinion substantially equivalent that issue this to the review might sought appeal. respect have on direct With any record’s omission reference to the race of the members jury panel, rejected appeal we on the direct the contention County procedures selecting petit jury that the Atlantic pool deprived representative jury pool defendant of the to which I, constitutionally supra, he was Marshall entitled. N.J. *142 any allege 85. fails to or demonstrate 586 A.2d Defendant resulting that from the record. prejudice from omission other page imposed restrictions Defendant also contends that appeal deprived him of by on his direct brief effective this Court addition, In adequate review. appellate of counsel and assistance alleges stringent this use of a less standard defendant that Court’s compared non-capital capital as with cases of review cases appellate deprived process him of due and effective review. We on both contentions to be frivolous and dismiss them consider any Notwithstanding page imposed restrictions their merits. managing capital appeals, case part process as briefs has continues to be afforded careful and been and Concerning review our comprehensive appellate this Court. cases, consistently recog capital we have standard review of obligation subject capital heightened records to nized our case scrutiny independent rulings trial and to exercise review of court determinations, searching a meticulous and standard that we and I, supra, 112 applied capital Bey to all cases. See at 92- have N.J. 93, A.2d 846. challenging and claims the fairness
Defendant also asserts review, challenging his adequacy proportionality of his and claims acquired its the basis of evidence after proportionality review on addition, In a number of that defendant asserts claims conclusion. collectively allege continuing race discrimination evidence of penalty death renders the death- in the administration of the constitutionally statute defendant’s death sentence penalty and invalid. reject merits claims on their without
We all those searching com evidentiary hearing. Defendant was accorded sentence, proportionality review of death conducted prehensive his then See of all information and data available. on the basis II, supra. no about the fairness We have reservations Marshall Concerning adequacy of review. defendant’s assertions proportionality acquired subsequent his review that evidence challenges death sentence was the conclusion that defendant’s II, acknowledged supra, disproportionate, we *143 in Marshall process: review a finite proportionality a more certain state of we render we cannot await before And, proof finally, judgment. of must in this case of the small We confront the problem sample cases, We do know what will in the next ten similar cases. comparison happen now____ judgment but we must nevertheless make our recognizes in that review sense standards society’s may Proportionality change in which one era be may and that is proportionate disproportionate obligation to no is a role defined our another. There are absolutes. Ours finite by justice given at see is done time. 1059.] at A.2d
[130
219,
N.J.
613
continuing
race
Defendant
asserts that
evidence of
also
penalty requires
in the
of the death
discrimination
administration
that issue
that this sentence be invalidated. We first addressed
II, supra,
yet
do not
confront a
Marshall
and concluded that “we
relentlessly
‘the
...
record in which
statistical evidence
documents
the risk that
sentence was influenced
racial consid
[Marshall’s]
213,
McCleskey
(quoting
A.2d
v.
erations.’”
Id.
613
1059
279,
1786,
262,
328,
1756,
Kemp,
95
301
481 U.S.
107 S.Ct.
L.Ed.2d
(1987) (Brennan, J., dissenting)). We
conclusion
reached
same
396,
(1994)
IV),
334,
Bey,
(Bey
137
685
State v.
N.J.
645 A.2d
—
denied,
—,
1131,
115
Defendant violations, discovery trial ineffec- the cumulative effect of counsel’s tiveness, prosecu- of effect of the various instances cumulative misconduct, of and the cumulative effect the so-called miscel- torial grant petition and require the of defendant’s PCR laneous claims reject reversal his conviction and death sentence. We evidentiary hearing. merits and without an claims their numerous, assessing the cumulative effect assort- The task of error, loosely by only categorization related as ed claims their claims,” “discovery or of counsel violations” “ineffectiveness required daunting. adequately can inform the exer- No formula judgment. objective an The best test derives from assess- cise claims, part- with a of the merits of the individual combined ment extrapolate subjective, part-objective those individualized effort to aggregate assessments into one. this and defendant’s
Our exhaustive review of record *144 majority of overwhelming has the claims demonstrated that ineffectiveness, misconduct, discovery, prosecutorial and other in allegedly are New of documents withheld claims meritless. significant, produc discovery and the were both discoverable significant not have of those that were discoverable and would tion Similarly, of materially trial. few affected the result of significant trial allegations ineffective at involved assistance representation, and quality in the of counsel’s those deficiencies trial result. reached a did were not material to the We that allegations prosecutorial miscon about the similar conclusion duct, relief. miscellaneous claims for We about defendant’s is claims not conclude that the cumulative effect significant Accord appreciably more than their individual effects. that effect ingly, reject the cumulative we defendant’s contention mandates of his PCR claims relief.
V FAIRNESS THE POST- THE OF CLAIMS INVOLVING RELIEF PROCEEDINGS CONVICTION IV, arguments raised in defendant’s In Section we discussed the petition concerning a reversal of his convictions and whether PCR Section, In this we address defendant’s is warranted.
sentence proceedings. of his concerning the fairness PCR claims TO THE STATE’S FILES A. DENIAL OF ACCESS proceedings, At the PCR commencement file, arguing inspect the entire that he was moved to State’s discovery to because “the Defendant has entitled such broad obligation comply did with its to that the demonstrated State post pro “a [pretrial] discovery” and because conviction provide special a situation which ceeding capital sentenced case is noted, discovery.” supra all As see at requires the broadest of motion, ruling court that the PCR denied A.2d contemplated by discovery right neither the such broad Rules, -4, discovery provisions in see R. 3:13-2 nor our Court ruled, however, law. The PCR court our decisional application inspect specific entitled to make defendant was possession. to be in Fol that he believed the State’s documents lowing requested procedure, defendant and received from approximately hundred Defendant now one documents. State not to that the PCR court’s decision order State contends right inspect him to entire file him his to a allow State’s denied hearing. full and fair PCR concedes, concerning peti our
As defendant Court Rules -12, PCR, any provision R. do not contain tions see 3:22-1 Moreover, authorizing discovery proceedings. general PCR discovery Governing obligations contained the Rules Criminal Practice, -4, post-conviction R. 3:13-2 to do not extend to see *145 on to proceedings. 3:13-3(g), Defendant relies Rule which refers “[c]ontinuing [d]uty parties’ [d]isclose” discoverable materials. However, Thus, only obligation “during continues trial.” our explicitly discovery requested by Rules not authorize the Court do ease. defendant in this
Similarly, a constitutional defendant cannot demonstrate inspect Although right to file. basis for his asserted State’s provide requires Due that the State criminal Process Clause
269
in the
any exculpatory, material evidence
State’s
with
defendants
1196-97,
87,
at
Brady, supra,
at
83 S.Ct.
373 U.S.
possession, see
prosecutor “to
218,
require
that Clause does
10 L.Ed.2d at
counsel,” Bagley, supra, 473 U.S.
file to defense
deliver his entire
489;
3380,
675, 105
at
see also
at
87 L.Ed.2d
S.Ct.
Weatherford
30,
837, 845-46,
545, 559,
L.Ed.2d
51
Bursey, 429
97 S.Ct.
v.
U.S.
(1977) (“There
right
in
general
is no
constitutional
discovery
42
one----”);
case,
v.
Brady
create
Wardius
did not
a criminal
82,
2208, 2212,
470, 474,
87
37 L.Ed.2d
412
93 S.Ct.
Oregon,
U.S.
(1973) (“[T]he
say regarding the
has little to
Due Process Clause
afforded----”).
must
discovery
parties
be
which
amount
that,
Nonetheless,
recognized
even in the
have
our eases
constitu
of a Court Rule or
authorization
the form
absence of
power to
mandate,
Jersey
“the inherent
courts have
New
tional
W.C.,
justice
requires.” State ex rel.
85
discovery
so
order
when
Cook,
see,
(1981);
218, 221,
e.g., State v.
43 N.J.
N.E. post-conviction proceed ty taking depositions to authorize ings). only in the unusual case will a PCR anticipate that
We
discovery.
right
compel
In most
its inherent
court invoke
fully
cases,
informed of the
post-conviction petitioner
a
will be
brings to
PCR
documentary source of the errors that he
Moreover,
“is not a device
we note that PCR
court’s attention.
claims,
vindicating
investigating possible
but a means for
for
Gonzalez,
1179,
Cal.Rptr.
275
People v.
51
claims.”
Cal.Bd
actual
denied,
1159, 1206
835, 112
776,
(1990),
729,
cert.
502
P.2d
U.S.
800
(1991).
117,
filing
petition
of a
for PCR
Moreover,
discovery
prior
jurispru
consistent with our
dence,
discovery
appropriately narrow
any PCR
order should be
See,
D.R.H.,
256,
249,
e.g.,
v.
127 N.J.
604 A.2d
and limited.
State
(1986).
(1992);
R.W.,
14, 28,
104
Courts -4, rules, designing appropriate to R. 3:13-2 in PCR see context, document-production barring In the discovery order. circumstances, seeking inspect exceptional a defendant to State identify sought specific production. the for files should documents may the camera The PCR court choose to view documents in determining requested discovery the before whether to issue order. thoroughly in the PCR record and exhibits have reviewed
We conclude court not abuse its this case and that the PCR did ruling discovery on motions. While discretion defendant’s finding inspect that defendant not entitled to the State’s file, requests him to for permitted the PCR court make entire specific to turn over those items that items ordered the State product. and not work the use of that were relevant We endorse procedure. comply are not of the State’s
We unmindful failure fully pretrial discovery obligations this case. Our with its leads us to of the record and defendant’s PCR claims review were that conclude that there indeed some discoverable documents provide during before defen the did not to defendant or State If concluded trial. the PCR court had State’s dant’s willful, had been it would have within that nondisclosures been authority grant inspect motion to the entire court’s circumstances, ty appropriate file. a PCR the State’s Under by file may properly that review the State’s court conclude only or itself is the means to the defendant the court either discovery guarantee all mate that the defendant has received he is rials to which entitled. however, ease, has not demonstrated
In this overwhelming majority of defen- exist. The those circumstances discovery either refer to documents that were PCR claims dant’s largely work-product privilege, irrelevant to protected innocence, simply guilt or or nonexistent. issue of defendant’s not as meticulous as it Although appears that the State was it governing abiding by rules discov- been in our court should have willfully, showing with ery, has been no State acted there malice, from intent to discoverable evidence with the conceal or defense counsel. Finding defen court reached similar conclusion. PCR broad,” “overly file inspect to be
dant’s motion
State’s
showing
any
no
reasonable likelihood
explained: “There’s
court
constituted, and
motion as
there
of discoverable material
fore,
right
deny
prejudice to the
I
the motion without
will
any application
specific
pursue
items.” Based
Defendant
familiarity
practices and conduct of the
the PCR court’s
with the
*148
any
of
parties,
informed sense whether
discoverable
that court’s
defendant,
by
independent
our own
documents remain unseen
and
record,
to
the
we decline
disturb the PCR court’s
review of
“justice ...
type
discovery
determination of the
and amount of
W.C.,
221,
50;
requires”
supra, 85
at
426 A.2d
in this case.
N.J.
(1964)
146,
Johnson,
161,
42
Defendant also -A, inspect right the common-law to N.J.S.A. 47:1A-1 to discovery requested in this public him to the documents entitle arguments without merit. “Under the case. We find those to be Law, right Jersey citizens have an absolute Righb-to-Know New made, be inspect, copy, purchase ‘required or records law to to kept by public Home v. maintained or News file’ officials.” 458, State, Health, 446, 195 Department 144 N.J. 677 A.2d of 47:1A-2) added). (1996) (emphasis Rights (quoting N.J.S.A. right inspect to provide does not defendant with to-Know Law
278
sought in
because
or
the law-enforcement files
this ease
no law
made,
requires
kept.”
maintained
regulation
that such files “be
or
47:1A-2;
Edge
Hyland,
Ass’n v.
see River
Sav. & Loan
N.J.S.A.
545,
540,
N.J.Super.
(App.Div.) (holding
“The common-law
extends
public
of
by public
‘made
officers in the exercise
func
document
range
encompasses
thus
a far
of documents
tions’ and
broader
Right-to-Know
Department
v.
than the
Law.” Board
Educ.
(1996)
269, 279,
Treasury,
(quoting
145
678
660
Nero
N.J.
A.2d
(1978)).
213, 222,
However,
Hyland, 76
See
(1986)
[investigative]
to
(discussing “government’s need
conduct
involved,
skill,
sensitivity
privacy
to the
interests
affairs with
with
confidentiality
encourages
ut
atmosphere
in
that
and
(“Confi
candor”); Nero,
supra, 76
at
In our public inspection of documents are different from the right of proceedings. govern discovery in criminal The that considerations proceedings require in criminal a different at stake interests balancing appropriate analysis and a of different interests. balancing criminal analysis interests is reflected our and Moreover, discovery R. to -4. we note that no rules. See 3:13-2 inspect right has on the court in this State relied common-law discovery beyond that authorized granting a criminal defendant Governing that by the Rules Criminal Practice. We endorse public right inspect result and hold that the common-law may by pending be in a criminal case documents invoked rights beyond granted by seeking discovery those Rule defendant Jackson, -4. See ex rel. Steckman v. 70 Ohio St. 3d 3:13-2 to State (1994) 83, 89, (reversing interpretation prior N.E. 2d that allowed criminal defendants to use records state records law discovery provided in addition to criminal law obtain rules, prior practice brought about “intermina procedure because discovery rules delay” and “chaos” criminal trials state’s ble “virtually meaningless”). had been rendered “pending” attempts differentiate this case from Defendant that, ground appeal, on proceedings this criminal collateral, suggests seeking post-conviction review. Defendant longer it or on direct case is “closed” because is no trial his appeal, is therefore entitled to invoke the common-law he
275 However, fact right inspect. the that defendant seeks a new to appeal any the claim his case is sense trial on this belies that “closed.”
Moreover, explicitly govern- the there is no Rule fact that Court discovery the ing post-conviction does not render common-law inspect obtaining discovery right to alternative basis for mate- an pending proper approach The is courts rials in this PCR case. by existing discovery fashioning rules in analogy to to reason discovery in PCR appropriate orders cases. post-conviction the nature of these thus conclude
We discovery proceedings does not entitle defendant to the he seeks. trial, appeal, case on direct or a criminal defendant’s is at Whether inability the invoke review does not alter on PCR inspect in to obtain right the common-law an effort additional Nero, discovery. supra, 386 A 846 See also 76 N.J. .2d (“ investigatory may kept files have to be confi inactive ‘[E]ven may safely they citizens confide in dential order to convince ” (quoting Department enforcement officials.’ Koch v. Jus law (D.D.C.1974))). tice, F.Supp. COURT’S DECI- B. THE POST-CONVICTION RELIEF DISQUALIFY SION NOT TO ITSELF state, Following practice judge same the usual this petition. Dur- presided over defendant’s trial also heard his PCR disqualify judge proceeding, defendant ing the PCR moved by demonstrated Defendant claimed that bias had been for bias. extra-judicial rulings by defense remarks prior adverse to the judge. made rules, any court be judge our “shall
Under
judge
given
opinion
if
has
on the matter
disqualified”
1(d),
court,
judge
if
is
in the
R.
interested
before
1:12—
matter,
l:12-l(e),
“any
is
R.
if there
other
outcome of
or
hearing and
might preclude
which
a fair and unbiased
reason
reasonably
parties
counsel or the
judgment,
might
or which
lead
1(f).
disqualification
decision
so.” R.
believe
1:12—
*151
Hundred
initially
of
trial court.
East
left to the discretion
350, 358,
Corp.,
N.J.Super.
515
Corp. Eric
212
v.
Schuster
Credit
denied,
60,
N.J.
An error
the court in
not, by
necessarily justify
will
an inference of bias and
does
ibid,
itself,
ground
disqualification.
(holding
furnish
See
for
proceedings
ground
is
judgment
previous
insufficient
reversal
Credit,
remand);
supra,
disqualification
East
for
Hundred
disqualifica
N.J.Super.
(upholding
Defendant rulings two discovery rulings the trial court. The concerned documents, by Investigator Murphy to Edward a memorandum concerning Kelly an interview of witnesses Assistant Prosecutor concerning by Lieutenant James Churchill and a memorandum subject are Thompson. The documents also alibi witnesses opinion. discovery in this The trial claims discussed elsewhere they reviewed those documents in camera and ruled that court product, entire Mur- withholding work from defendant the were only turning version of the phy memorandum and over a redacted acknowledged its error in memorandum. The trial court Churchill *152 proceedings the and the unedited documents were released. PCR rulings the those reveal trial court’s bias Defendant claims that emphasizes his the against him. assertion that court’s Defendant Murphy prevented discovery of memorandum the ruling on the denying the contrary to the court’s factual basis for evidence motion, findings made that factual were suppression those soon after the court’s in camera review of the document. Redact- memorandum, claimed, prevented ing it is the Churchill key interviewing from witnesses. rulings unpersuaded discovery consti are that those
We acknowledged that of bias. The trial court itself tute evidence however, note, in We documents were withheld error. exempting rule from the literal terms
documents are within by discovery reports, or documents made “internal memoranda agents, party’s attorney in connection with party or the or 3:13-3(e). R. or defense of the matter.” investigation, prosecution Moreover, Murphy in memorandum the information contained findings suppres at the contrary the trial court’s directly is not determina hearing, the PCR court’s and we have sustained sion have defense would not releasing that document tion that proceedings. capacity change the outcome had the Likewise, opinion, in the Churchill as find elsewhere this we Therefore, the information. memorandum contained no material to elevate the trial documents will not serve nature of those two something rulings error to more discovery from mere court’s sinister. alleges that statements
Defendant also
several
prior
disqualification. A court’s
statement
trial court warrant its
may
that the
opinion concerning a matter before it
indicate
disqualified
prejudged
and must be
under
court has
the matter
1(d).
important qualification,
The Rule contains an
Rule 1:12—
judicial
opinion in the course of the
A
statement of
however.
bar,
in
or in another case in which the
proceedings
the case at
require disqualification. R. 1:12—
presented,
issue is
will not
same
(d)
sitting
(“[Paragraph
prevent
judge
from
because
]
shall
having given
opinion in another action in which the same
an
any
controversy
question
given
opinion
in
matter in
came
or
question
controversy
pending
in the
action
the course of
Credit,
therein____”);
supra,
previous proceedings
Hundred East
judge’s
N.J.Super.
Defendant raises Acceturo, in trial in the unrelated case of State v. which over the County compliance Prosecutor’s with its the issue of the Ocean dispute. claims that a discovery obligations was Defendant disqualifi by the court in relation to that issue warrants statement *153 However, obviously opinion in is a statement of cation. l:12-l(d). expressly exempted from another action testimony by judge the trial Defendant also claims that Thompson v. McKinnon in a civil matter in Louisiana titled testimony requires disqualification. contends that the Defendant prosecution was judge prejudged that the whether the reveals fairly committed conducted and whether defense counsel had fair, prosecution gross negligence. Concerning whether the was 279 he no reason to believe otherwise.” judge the testified that “had judge had support the inference that the does not That statement regard negli- prosecution. With prejudged the fairness of the counsel, testimony merely judge’s Louisiana gence of the defense court had made defendant’s trial. a statement the recounted remaining allegations speech a to a concern Defendant’s fragment a a high about case and of school class defendant’s caught videotape. Howev conversation in chambers was er, to know the substance of court’s does not claim defendant class, only fragment high a of remarks school Contrary to defendant’s conversation in chambers recorded. necessarily claim, the court does not the sentence attributed to credibility. prejudged The sentence that it had reveal context, subject variety interpreta of appears out of tions.
Thus, prejudice supposed examples of bias or none of the disqualification of the PCR court. defendant warranted raised “pattern of examples together taken show bias” Nor do those recognize litigants “fierce in their alleges. are We prejudice as and view an adverse decision determination Deane, 441, 447, N.J.Super. 483 A.2d judge.” v. Matthews dismissed, A (Ch.Div.1984), N.J.Super. 503 .2d376 appeal necessary to acknowledge that it is not We also (App.Div.1986). court, part and that the mere prove prejudice actual on the 1(f). disqualification. R. may require appearance bias 1:12— However, may disqualified ground on the the court be before bias, unfair proceedings were appearance the belief that objectively do not believe that reasonable. Ibid. We be must standard, and we approaches ease such court’s conduct this motion. disqualification affirm the denial of thus INTER- ATTEMPT TO DEFENDANT’S C. DENIAL OF TRIAL THE JURORS VIEW request to denial of his that the PCR court’s
Defendant claims further claims jurors Defendant was in error. the trial interview jurors without post-trial contact with precluding that our rule *154 280 court, 1:16-1, rights R. violates his constitutional
leave of the Amendment. under the First long-standing acknowledges the common-law
Defendant
jurors’
impeach their verdict.
against inquiring into
motives to
rule
States,
107, 117,
2739,
107 S.Ct.
Tanner v. United
483 U.S.
See
(1987).
90,
2745,
policy,
reasons of
L.Ed.2d
104
For sound
97
juror
including
prevention of
harassment and the avoidance of
deliberations,
showing
jury
typically require some
chilling
courts
permitting
party
to interview
extraneous influence before
See,
LaFera,
97, 110,
jurors.
e.g.,
v.
42 N.J.
Before the PCR
jurors
years
discharge,
seven
after their
but he
to contact
some
justify
extraordinary
showing that would
such an
mea
made no
any
allegations
Defendant’s
of extraneous influence lack
sure.
rely
purest speculation.
found
factual basis and
This Court has
error.
that the trial court’s conduct of the voir dire was without
Therefore,
I,
93-94,
we
supra,
Marshall
In we note that the information reasonably ar- Defendant cannot reconstruct seems redundant. present aggravating would he notice that State gue that lacked with- aggravating factors were The fact that two of the factors. Moreover, how off-the- certainly it is not clear of record. drawn is aggravating factors concerning the withdrawn record discussions Likewise, unrecorded claim. an ineffectiveness could establish jury appear to be of limited concerning selection would discussions usefulness, have found that counsel’s of the fact that we view process We jury deficient. performance in the selection hearing PCR testified at the that defendant’s trial counsel note withdrawal concerning circumstances of the State’s aggravating concerning factors and his discussions with client his penalty phase.
Finally, we concur with the PCR court’s observation that PCR judicial counsel remained free to interview trial counsel without present any indicating missing assistance and to evidence that the portions of the record are indeed material. That defendant has showing supports made no such further the inference that the inconsequential. reject Accordingly, omissions are we right appeal, claim that the PCR court interfered with his affirm we the trial court’s denial of the motion to reconstruct the record.
E. REFUSAL OF LAW ENFORCEMENT PERSONNEL TO
TALK THE TO DEFENSE
(Claims E.26-27) include
Defendant that personnel claims the refusal of law enforcement by seeking to be interviewed defense support counsel evidence to rights process, PCR claims violated his to due con- witnesses, right hearing. frontation of and his to a fair PCR According investigator Worthy, to defense Robert he was told County members of the Ocean Prosecutor’s office and the State any requests Police to clear Investigator interview with Dino Attorney Dettorre of the General’s office. Dettorre testified at hearing pursuant inquiry by Worthy PCR that to the he had personnel informed law they spoke enforcement that whether to them, up Attorney the defense was to that the General’s office matter, position took no attorney on the but that an from the Attorney present General’s office would be at an interview if the relayed interviewee wished. Dettorre testified that he had message personnel that law right enforcement had the same as Worthy civilians to refuse to be interviewed. also stated that any place Dettorre had told him that interviews would take in the Attorney McIntyre General’s office. Lieutenant James subse- quently Worthy police informed that state officers had declined to be interviewed on Attorney the basis of the instructions from the County Prosecu- Captain Churchill the Ocean General’s office. county informed Dettorre that none tor’s office likewise to investigative personnel consent interviews. would right has to disputed potential that witness refuse It is not a litigation. party Defendant speak representative a a personnel they by informing law argues that enforcement interviewed, suggested Dettorre right to to be had the refuse by offering they right. He also claims that exercise that office, Attorney attorney from the General’s of an assistance Dettorre, effect, present at implied attorney must be that an that, as matter of Finally, suggests funda- interview. justice, personnel permitted should not be law enforcement mental in a criminal matter. to refuse to be interviewed that he is entitled to a remand for Defendant claims testimony ground conflict hearing that the on this issue however, find, points factual are not ing. that the material We testimony Worthy’s dem of Dettorre and affidavit disputed. relayed to the law-enforce onstrate that the instructions Dettorre reasonably interpreted as personnel could not have been ment McIntyre’s to the defense. statement instructing them not talk officers refused to be interviewed accordance police that the Attorney General’s office does with the instructions McIntyre’s cooperate. not to that the officers were ordered mean may interpreted refer to “instructions” equally be statement interview, they right to refuse an that the officers had the right. exercising that were *157 by in it was found cited which
The cases to access witnesses prosecutors had interfered with defendants’ States, 185, 369 F.2d distinguishable. Gregory v. United are See (D.C.Cir.1966) (holding prosecutor’s advice witness 188 present anyone prosecutor amounted to speak unless witness); v. Peter Kiewit Sons’ United States denial access to (D.Colo.1986) Co., prosecutors (holding that F.Supp. 78 by implicitly witnesses with defendant’s access to had interfered speak to the defense when conveying witnesses not wish that themselves). danger prosecution in witnesses were In this case, prospective repre- witnesses were not advised to have a present, prosecutor’s sentative of the office nor was that made a representatives condition of access to them. As of law enforcement, pressure brought there was no motive or to bear on speak not, likely them not to to defense counsel. More than their disinclination to be interviewed was an inevitable incident of their position loyalty as law enforcement officers and their to the prosecution’s cause. impose duty
We also decline to
a new
on law enforce
being
ment officials to consent to
interviewed
the defense. We
already
obligation
note that the State is
under an
to turn over
material, exculpatory
Brady,
evidence to the
supra,
defense.
1196-97,
Furthermore,
atU.S.
Of if the State were to interfere with a defendant’s ability charges by using to answer criminal its influence to dis- courage speaking agents, from to counsel witnesses or counsel’s very presented. different ease would be We are satisfied that the undisputed testimony support will not an inference that such brought influence was to bear. Defendant’s claims under the Brady length opinion. standard are dealt with at elsewhere this Accordingly, reject we defendant’s claim that law enforcement personnel’s refusal to be interviewed tainted the fairness of the proceeding. PCR
F. THAT MISCELLANEOUS CLAIMS THE POST-CON- RELIEF
VICTION PROCEEDINGS WERE UNFAIR Attorney Defendant claims that the General should have been disqualified representing from hearing State the PCR ground Justice, that the Director of the Division of Criminal *158 of Ocean Farley, was the First Assistant Prosecutor P. Terrence following County hearing of the at the time remand that, he argues raises claims of appeal. Defendant because direct by County Prosecutor’s Office prosecutorial misconduct the Ocean presence in petition, former Prosecutor’s the the First Assistant adjudication precluded of his Attorney Office fair General’s adjudication petition, preclude will fair of federal habeas PCR review. process and fairness con than constitutional due
Other siderations, any authority legal for the defendant does not cite may disqualification of the proposition compel that he State’s represented PCR because the same counsel the State counsel on allege that Di proceedings. in the Defendant does earlier any County Farley either the Ocean trial rector. had direct role allegation specific proceeding. in the PCR Nor is there an or Farley. prejudice from the dual roles of Director that resulted prior proceedings alleges fact misconduct The that defendant Moreover, disqualify him to counsel the State. cannot entitle underlying allegations prosecutorial miscon note we Accordingly, be merit. we find duct have been found to without Attorney representation of the State on PCR that the General’s proceeding. not taint the fairness did PCR court to claims that the refusal of the Defendant also proceeding petition permit to amend his rendered opinion in this the merits Because we address unfair. petition, the add in an amended proposed to
claims defendant permission to is moot. denial of amend claim based deprived proceeding videotaping the PCR Defendant claims that hearing. He a full and fair assistance of counsel and him the during ability confidentially with counsel his to confer claims that microphone system used in impaired proceedings responds the fear that the micro- the courtroom. State private at the counsel table phones permit conversations would not at the misunderstanding, that a “kill” switch to a was due interruption of the permitted without such conversations table *159 proceedings. representa- Defendant does not contradict those any misunderstanding tions. The record shows was correct- Therefore, ed the court. claim defendant’s is without merit.
VI
CONCLUSION petition post-conviction We affirm the denial of defendant’s for relief.
O’HERN, J., concurring part dissenting in part. and exceptions, agree I comprehensive opinion With two with the judgment dismissing petition of the Court defendant’s for (PCR). post-conviction relief I dissent from the Court’s denial of hearing a to defendant on his claim of ineffective assistance of counsel, I dissent from its denial of access to the State’s investigative join I dissenting file. Justice opinion Handler’s insofar as he would reverse on the basis of these issues. I add only following observations.
I principal The disposition thesis of the Court’s of defendant’s ineffective penalty phase assistance of counsel claim at the of his penalty strategic death trial is that counsel amade decision not to that, moreover, present any a defense and likely defense was not substantially jury’s to have affected deliberations. The latter premise is untenable. sentencing stage The of defense to matter in the quality representation of likely majority jury’s the vast of cases. Because of the breadth of the discretion capital subjectivity and the of its decision, the of a death sentence will if imposition rarely, foregone a ever, be conclusion. Moreover, defense quality representation range a critical role because of the vast of information relevant to plays sentencing jury through decision can learn defense counsel’s efforts only jury’s argument. and because of the Thus, in susceptibility persuasive capital than cases, more other class of criminal any cases, will quality representation
make a difference —and the difference will be between life or death for the accused. Meaning “Counsel" in the Sixth [Bruce Green, A. Lethal Fiction: (1993).] Amendment, 433, 78 Iowa L.Rev. case, he hearing to establish that In this defendant seeks constitutionally-required effective sentenced to death without the In his entitlement to a order establish assistance of counsel. right to only prima need raise a facie hearing, petition defendant’s (1992). Preciose, A.2d 1280 129 N.J. relief. State v. open and shut case of petition raises an almost Defendant’s possibly All that can sustain the ineffective assistance of counsel. credibility might lend hearing somehow conviction is capital ease all. defense present “[A] no counsel’s choice ‘case attorney’s present the central mission is to through mitigating evidence at sen life’ the introduction *160 White, Assistance Counsel tencing stage.” Welsh S. of Effective Care, U. Evolving Standard 1993 Ill. Capital in Cases: The of (1993). 323, attorney no case for Marshall’s made L.Rev. 360-61 life. (Marshall I), 123 my dissenting opinion in v. Marshall
In
State
(1991),
denied,
929,
1,
113
586 A .2d
cert.
507 U.S.
S.Ct.
85
N.J.
observed,
Handler,
(1993),
I
as did Justice
In
no
trial.
there was
mitigating
is
fails to
evidence
In
a defendant whose lawyer
present any
practice,
legal
sentencing.
at
at
has had no
all
different from one who
representation
little
mitigating
to
lack of
evidence is effectively equivalent
The failure to present
sentencing
a defendant a fair penalty
at
because
both
they
deny
representation
trial.
Sentencing,
Fong,
39
Counsel at
Stan.
[Ivan K.
Assistance
Capital
Ineffective
(1987).]
461, 494-95
L.Rev.
223, 260,
(1991),
Dixon,
jurors
conducting
to
a death
the defense
sentence,
who are least likely
impose
jury’s
guilt
light
during
of the trial in
of its
on the
phase
potential
impact
sentencing decision.
(citing
The Trial
[Green,
78 Iowa L.Rev. at 496-97
Gary Goodpaster,
supra,
for
Cases,
58 N.Y.U. L.Rev.
Assistance
Counsel
Death Penalty
Effective
Life:
(1983)).]
nothing
trial
did none of this. He did
Marshall’s
counsel
jurors
likely
impose
penalty,
death
had
select
least
no
life,
theory
plea for
and made no case
of defense consistent with a
(“The
for life. The ABA
for Criminal Justice
Defense
Standards
“
Function”)
duty
lawyer
clearly state that
is the
‘[i]t
prompt investigation
of the circumstances of the case
conduct
explore
leading
all
to the facts relevant to the
and to
avenues
”
penalty
of the case and the
in the event
conviction.’
merits
Fong, supra,
(quoting
at
1 American Bar
39 Stan. L.Rev.
480-81
Justice,
4-4.1,
Standard
at 4-53
Assoc. Standards
Criminal
(2d ed.1980))
added).
(emphasis
Prevailing
practice
norms of
duty
investigate mitigating
expressly dictate the
evidence. Id.
employed by
capital
Trial manuals for
defense counsel
480.
California,
Poverty Law Center of
Office of State Public
Southern
*161
Defender,
importance
describe in detail the effect and
of investi
See,
gating
presenting
mitigation.
e.g.,
Ibid.
Thom
and
a case
(11th Cir.)
1322,
(finding
Kemp,
v.
796 F.2d
1324
failure to seek
as
mitigating evidence because defendant
told counsel he did not
denied,
unreasonable),
anyone
cry
“want
to
for him” was
cert.
479
996,
602,
(1986); Thompson
107 S.Ct.
289
ignore possible
defenses can reason
a defendant
instructions of
duty.
performance of
ably
from the
See
excuse counsel
(11th
denied,
Cir.1991),
F.2d 1477
cert.
Singletary,
v.
943
Blanco
2282,
(1992);
943,
207
Martin v.
112 S.Ct.
L.Ed.2d
504 U.S.
(5th
1028,
Cir.1983),
denied,
Maggio,
F.2d 1273
cert.
469 U.S.
(1984).
The selection of defenses at
105 S.Ct.
The Court the decision strategic But on record there is absolute life as a choice. this for all aware ly counsel was at nothing to indicate that Marshall’s Handler’s capital defense counsel cases. Justice the function of the manner in which counsel mishan thoroughly discusses dissent 303-09, 108-11 phase. Post at 690 A.2d at penalty dled (Handler, J., dissenting). proper understanding a
A that is not based on tactical decision “Representation at the of the law is not entitled deference. ordinary work of hearing greatly from the sentencing varies so lawyers, on such a including and draws lawyers, criminal defense knowledge, that take incredible dumb variety it would of skills upon competent attorney happen ill-trained luck Green, supra, Iowa L.Rev. at 497. approach.” To Yes, such as Marshall. be it be difficult to defend one would theory effectively, requires a coherent a case defended such defense. it “does not
Experienced capital have observed that counsel stage guilt “he do it” at the put on a didn’t defense work” sentencing stage. at the sorry it” defense then a “he’s he did White, required is a L.Rev. at 357. What is supra, 1993 U. Ill. theory of defense theory of One consistent consistent defense. trumped-up case suggested is that this was has been killer, rogue to the against with favoritism shown Marshall, McKinnon, well favoritism to implicated as as who *162 290 lay Kraushaar, was motivated self-interest who
Sarann on Marshall. blame competent capital counsel been imagine had one
Can they capital sentencing, represent Marshall at his assembled mitigation of present any case in prepared to not have been would possible a death sentence? short, prima more than a facie ease petition
In discloses It is as effective assistance of counsel. was denied the trial. penalty phase in the of the though had no counsel Marshall cannot, reason, prong of the invoke second The Court complexity of the and individuali- test.1 Because Strickland/Fritz sentencing stage, sentencing, “at the when capital it is zation of difference, the differ- quality lawyering [and] does make a degree. a It is a difference between is more than a matter ence Green, of death.” imprisonment and a sentence sentence of at 434-35. supra, 78 Iowa L.Rev. “strategic Supreme agrees that
Every member of the
Court
thorough investigation of law and facts relevant
made after
choices
Strickland,
virtually unchallengeable.”
plausible options are
But,
2066,
690, 104
at
Capital defendants are
356,
Obviously, the measure of an advocate’s
II or to to court counsel prosecutor The refusal of the disclose respect any exculpatory materi file with contents of State’s I, I requires proceedings. dissented Marshall als also further 208, 85, I A.2d believed that 586 because supra, 123 N.J. at immunity to Sarann Kraushaar promise nondisclosure phase penalty of that sufficiently in the undermined confidence 292 death sentence. additional
trial to warrant reversal the defense ante at of items relevant to evidence of nondisclosure 46-48, 180-183, me that the circum 690 A.2d at convinces disclosure of the require this the Court should stances of case investigative court-appointed court to a file the trial or State’s exculpatory any there are relevant to determine whether master in the file. materials 786, 2562, Illinois, 706 92 S.Ct. 33 L.Ed.2d v. 408 U.S.
Moore
(1972),
exculpatory
evi
obligation
release
establishes that
Maryland,
Brady v.
373 U.S.
S.Ct.
dence under
(1963),
require
prosecution
its
does
deliver
L.Ed.2d
However, when trial is concluded and
file to the
entire
defense.
*164
shown,
prosecutorial
a court
pattern
a
of
misconduct has been
the
require
supervised
a
review of
should exercise its discretion to
investigative
a
of such
file. We noted number of instances
State’s
I,
in
in this case. See Marshall
misconduct
our earlier decision
161,
155,
supra,
response
85. The
to
Some See, Harris, given e.g., latitude. State v. trial courts similar (1993) (affirming independent trial court’s Conn. 631A.2d evidence). obligation examine file and release relevant jurisdictions permit criminal defendants Procedures other pursuing post-conviction government’s investi- relief access See, 119.07(k)(l) (1996) (exempting § gative e.g., Fla. files. Stat. investiga- only concerning imminent from disclosure those records (ex- 50-18-72(a)(4) (1996) § prosecutions); or Ga.Code Ann. tions only concerning pending empting disclosure those records from disturbing to prosecutions appeals). It is think that New jurisdictions Jersey do such when the matter would less than life or death. involves
HANDLER, J., dissenting. capital case first has heard a
This is the time that Court reemergence penalty post-conviction of the death review since *165 expressed Jersey. unanswered criti in I have twice before New 1, 214-67, Marshall, v. 123 N.J. 586 cisms about this case. State (1991) (Marshall I) (Handler, J., dissenting), State v. A .2d 85 (1992) (Marshall 229-312, 109, 1059 N.J. 613 A.2d 130 Marshall II) 929, (Handler, J., denied, 113 dissenting), cert. 507 U.S. S.Ct. (1993). 1306, Significant that militate 122 694 facts L.Ed.2d post-conviction materially support in of defendant’s claims for proceedings. developed during these most recent have relief been all rejection and of of defen dismissive treatment This Court’s strongly my belief that the death claims reinforce dant’s numerous 294 any constitutionally applied circumstances
penalty cannot be of this case. egregiously defective in the circumstances and is prosecution, and the realistic limitations In this extended time in-depth an exposition effectively preclude discussion on decisional by claims defendant and dismissed with of the hundreds of raised However, analysis by majority today. three sets of little the compelled them in profound are that I feel to discuss errors so They only many in degree gravity of from the detail. differ First, remaining go lack of a mean- claims that undiscussed. abroga- ingful penalty phase coupled virtual with defense counsel’s a reversal of tion of his role as an advocate for defendant warrants or, least, a very at the remand to determine the death sentence any plausible strategic had basis for his whether defense counsel Second, fight vigorously not life. decision jury guilt penalty phases death-qualified lack of a at both the and prejudicial impact of the ineffectiveness of defense accentuates the by A uninformed counsel. death sentence handed down and unchallenged jury cannot reconciled with unprincipled and be standards, particularly in the even minimal constitutional context grossly Lastly, of a case defense counsel is ineffective. which violations, discovery directly implicating several multitude of witnesses, scrutiny credibility key of warrants close permit prosecutor’s defendant the role and mandates a remand Brady1 opportunity basis for to establish full factual his prosecutorial-misconduct claims. errors, specific categories
In of I addition to the aforementioned am also the Court’s treatment all of defendant’s troubled properly rejecting the trial court’s blanket asser- claims. While bars, analysis procedural cursory piecemeal tion of Court’s claims, misguid- though partially attributable to defendant’s error, fracturing every plausible allegation does a disser- ed analyzing and in vice. The trial court erred the merits not permitting development of claims. Then to relieve the (1963). v. U.S. 83 S.Ct. L.Ed.2d 215 Brady Maryland,
295 fact-finding, by independent undertaking obligations court its heavy this hearing of a and constrained Court’s without benefit role, mistaken, proper burden, seriously undermines the Court’s grave harm on defendant. and visits
I majority dismissing vast defen court erred trial hearing discussing the merits of holding a or dant’s claims without solely procedural on the bars Rule 3:22-4 the claims based join majority’s I in the condemnation of and Rule 3:22-5. 143-154, at 690 A .2d 27-33. Unlike practice. See ante however, I am the trial court’s error majority, convinced Moreover, findings. for I believe remand of case warrants abridgement hearings that were severe that the trial court’s claims was regarding several of defendant’s unwarrant conducted Therefore, ill-advised, I ed, remand the and erroneous. would findings. hearings and factual case for both A. petition post- disposition of defendant’s
The trial court’s (“PCR”) rules governing to the relief did not conform conviction Preciose, 129 holdings in v. N.J. this Court’s State PCR and Mitchell, (1992), A.2d 126 N.J. 601 1280 and State v. 609 A.2d (1992). grounds alleged rever- that he warranted Defendant raised Relying of his death sentence. sal of his conviction vacation bars, oral moved to dismiss. After brief procedural the State recess, the trial court issued argument on the motion and a short by citing merely ruling. The dismissed 371 claims its court seventy-four dismissing example, For procedural bars. selection, jury noted in one sentence court claims related “were dismissing the claims either it was them because In a appeal process.” in the adjudicated or have been raised could letter, two- its of over trial court confirmed dismissal two-page claims; or again, provided no details the court thirds of the *167 dismissing. court analysis simply the claims it was The and listed deny specify procedural invoking it was did not even which bar day in his court. Preciose, lower not to In v. this Court warned courts State unduly through procedural the use of hurdles: restrict PCR criminal New of state review affords apparently Jersey’s system post-eonviction raise claims constitutional than does federal defendants broader opportunity in courts, It would a bitter indeed if our an irony attempt habeas review. be of federal habeas were review, accommodate the Court’s retrenchment Supreme rulings adjudications over in to elevate substantive post- artificially procedural [United at a States Court’s curtailment review, conviction time when Supreme] increasingly forces on state rely habeas review state post-eonviction prisoners vindicating proceedings last as their resort for their state and federal constitutional rights. governing [the bars rules by When appropriate, procedural imposed review] asserted to but relief, ... bemay post-conviction post-conviction preclude slightest their not be or influenced in courts’ use should federal by shaped allowing disallowing In instances, standards or habeas review. such restrictive underlying in reference to meritorious issues be useful may abbreviated injustice. demonstrating that bar has caused no Howev- reliance on procedural raised that and our er, when meritorious issues are analysis require explanation, justice traditions of will best be served decisions that reflect by comprehensive thoughtful thorough and considerations of substantive contentions. disposition N.J. [129 1280.] at 477-78, 609A.2d judicial compelling in “[o]ur We further warned that interest only those free is sustaining convictions from constitutional error or, matter, of our courts for that federal disserved decisions availability limit the of ... review in cases in courts that habeas 454, may at 609 1280. which such review be warranted.” Id. A.2d potentially has announced that because the issues This Court petition important, raised in a PCR are so varied and our “[f]rom finality [only] grant our perspective, state is achieved when courts 475, deny Id. A.2d post-eonviction or relief.” at 609 1280. explained principle “[w]here Court has this exists because affording our in presented, issues are interest defen meritorious post-conviction dants to both state and federal habeas access finality____ n Simply in outweighs put, our interest consid- review finality little procedural enforcemént count for erations liberty hangs in at when a defendant’s life or the balance.” Id. Preciose, 475-76, recognized, A.2d thus in that the 609 1280. We
297
strictly
substan
governing PCR are not to be read
to avoid
rules
1280;
477-78,
adjudications.
Id.
609 A.2d
also State v.
see
tive
(“[T]he
Johns,
574, 576,
(App.Div.1970)
270
N.J.Super.
111
A.2d 59
presented
import
to call for
problem
of sufficient
constitutional
may
consider
[governing PCR]
of the rules
so
we
relaxation
denied,
467,
merits.”),
60
291 A.2d
question
its
N.J.
certif.
(1972).
denied,
473,
cert.
409 U.S.
S.Ct.
L.Ed.2d
capital
in
importance
quantum
escalates
measure
PCR’s
Thus,
might properly preclude
procedural
even when
bars
cases.
cases,
courts
noncapital
I believe that
must
certain claims
cases
capital
of those claims
to ensure that
address
merits
*168
in
or
will
be
violation of our Federal
State
executed
procedur
approach
implicit
in the enhanced
That
Constitution.
protections that
essential to the constitu
al and substantive
are
any capital-punishment regime.
of
State v.
tional effectuation
Ramseur,
123, 324,
(1987);
N.J.
B. majority correctly recognizes the trial the deficiencies of handling petition therefore to dismiss court’s of this refuses procedural most of claims raised defendant on mere seemingly spends much and effort technicalities. The Court time discussing rejecting them on of defendant’s claims and then each below, majority’s I the merits. As discussed find dismissal Worse, to be the merits of several the claims erroneous. however, majority’s forge a discus- is the decision to ahead with concluding after that the trial dismissal sion of the merits court’s *169 procedural improper. the on of claims based bars law, By findings the refusing to remand action for of fact and dramatically away as a the Court from function has moved its Whitaker, 515-16, 503, reviewing 401 See State v. 79 N.J. court. (“The (1979) appellate give ‘should A .2d509 tribunal deference substantially findings judge the trial are influenced' those of which by opportunity hear the to have the his and see witnesses and case, reviewing enjoy,’ it “feel” of which a court cannot since the record.”) depends upon appellate (quoting the cold State v. rather (1964)). Johnson, 146, 161, today The Court 42 N.J. 199 A.2d809
299
appellate court.
I believe
of fact-finder and
a dual role
assumes
of
overreaching its
function
misguided in
traditional
the Court
ruling
in
on a
error
determining
the trial court committed
whether
claims.
findings,
puts
the
factual
Court
By
remanding the action for
not
fact-finding that
position
crediting the
contradictory
of
itself in the
weight to the
attributing no
on some claims while
was done
Thus,
sways
majority
fact-finding
other claims.
the
of
absence
trial
opinion
importance
in
to the
its
as
back and forth
points,
majority recognizes the
findings.
At several
court’s
at
E.g., ante
of the evidence.
importance of a trial court’s review
important
186,
(citing
finding as an
at
trial court’s
A.2d
49
material). At
ruling
alleged
error was
aspect of its
times,
plunging ahead
trepidation
has
in
no
other
Court
193,
findings. E.g., ante
of
trial
at
court’s
without benefit
determining
(assuming
court’s role in
whether
A .2d
trial
at 53
totality
warrant would
the circumstances
search
under the
of
60,
241,
(finding
issued);
208,
at
690 A.2d at
ante
have been
despite
behavior
absence
strategic reasons for trial counsel’s
record).
bespeaks
recurrent ambiva
majority’s oscillation
its
The
ruling
our
in Preciose where
moves us far from
lence. Its decision
claim
of defendant’s
that “we cannot address
merits
we noted
sufficiency
record before
ascertaining the
of the factual
without
here,
462,
There,
fact-
like
at
required a
Court does
own
factual
which,
cursory
superficial. That
surprisingly, is
and
finding,
fact-finding
for
in a
beggar
would
the need
trial-level
Court
capital prosecution
proceeding seeking to
error in a
PCR
redress
alarming anomaly.
is an
See
has led
a death sentence
I,
215-16, 265-66,
supra,
A .2d 85
If factual the Court insists on the basis record, urged by obligated accept it is those facts defendant. ciose, supra, 1280. Pre N.J. at A.2d The Court Instead, flouting precedent and does not do that here. our practice, independent fact-finding no the Court undertakes apparent purpose than other to rationalize its dismissal of defen dant’s claims.
c.
findings
ease for factual
failure to remand the
Compounding the
of defendant’s
deficiency
regarding several
in the evidence
is the
record,
its
the Court clears
Despite
inadequacy
claims.
instances,
Indeed,
majority
many
fact-finding path.
own
is,
charges
nevertheless
incomplete the record
but
recognizes how
See,
195, A.2d at 54
deficiency
e.g., ante at
690
to defendant.
that
exists,
(“The
has
report
and defendant
that such a
State denies
200,
representation.”); ante at
showing
contradict that
made no
(“However,
showing
such a
no
that
there has been
Several
Preciose, supra, 129
case.
prima
made out a
defendant has
facie
in the
462,
the facts
must “view
at
For that defen- despite the fact motivations regarding trial counsel’s issues most of those question counsel on permitted to dant was not 302 fact trial counsel refused even hearing, despite the
at evidence, Notwithstanding the absence speak with defendant. actions, strategic for counsel’s whether reasons imputes the Court reasons, foregone then draws the counsel’s or those were 197, E.g., ante at merit. the claims are without conclusion would be a reasonable (“[D]eciding not to call her at 690 A.2d (“[C]ounsel’s 212, choice.”); decision ante at 690A.2d at 62 tactical may counsel’s ... have reflected evidence not to offer direct unpersua have been such evidence would prudent recognition that (“[C]ounsel justifiably sive____”); could ante at 690 A.2d witnesses----”); no need tell the that there was have concluded (“In view,' may defense counsel ante A .2d at 68 our *172 by represent his client reasonably that he could best have decided case....”); 241, 690 ante of his concentrating on other areas (“We legiti a ... that counsel’s examination A .2d at 76 find choice.”). findings hearing no strategic no and factual mate With below, is attributing counsel blindly motivations to defendant’s insupportable. nary inquiry into their with
Another set of claims dismissed Brady evidentiary example, For support were defendant’s claims. discovery establishing nearly one-hundred instances of viola- after obtaining wrongfully pages of documents tions and hundreds withheld, alleged and infor- that numerous documents claim, specific over. In one mation still had not been turned him that the State had failed to advise before defendant asserted McKinnon, key witness, investigat- during that a had been or trial by case. ed federal authorities for criminal acts unrelated to this by Supporting a law such claim was an affidavit a enforcement Churchill, provided agent, that McKinnon had information to the regarding Thompson F.B.I. bank robberies which eodefendant may to have been involved. Unable obtain McKinnon’s consent witnesses, government agents and unable to interview defen- hearing to dant asked the court conduct to determine what information criminal had known related McKinnon’s acts been by government and not disclosed trial defense. The any hearing request explaining court denied the on the issue legal essentially be to into in the “would venture morass nature parameters and no ascertainable discovery proceeding with of a sake, Thus, the trial court essentially convenience limits.” allegations. The ability to defend his serious denied defendant injury by finding that defendant is at majority now adds insult claims. failing to establish his fault for
D. in the trial sum, majority correctly ascertains error In claims. The of most of defendant’s blanket dismissal court’s point however, concluding inquiry at that in not its majority, errs to undertake the action for the trial court remanding the Although requisite findings. to make the necessary hearings and applying trial court’s decision to reverse the is correct Court claims, defen- majority of defendant’s the vast procedural bars to adequately to address fails victory pyrrhic. The Court dant’s case, but opts it not to remand of errors when this class Fur- findings itself. important factual attempts to make instead usurping the trial court’s ther, from slightest in the deterred by majority compounds its error fact-finding responsibilities, impoverished fact-finding on an independent based engaging in the need for additional utterly failing recognize record and hearings.
II *173 on explored penalty phase were failings of the Although the record, hearings PCR the on the available appeal based direct just highlight all of serve new facts which numerous revealed majority’s de truly The phase was. penalty the how deficient 77-85, 243-258, is occurred, A .2d at ante scription of what inadequate. incomplete and
A. jury re- a.m. on March 11:30 approximately At Mar- of Mrs. the murder guilt procuring turned a verdict jury that defendant was Immediately after the announced shall. murder, by out of the courtroom guilty capital he was escorted courtroom, “lighthead- he felt As he exited the Sheriffs officers. down, back, collapsed. he ed,” eyes rolled he tried to sit his caught he the floor. The next him before hit Sheriffs officers smelling having salts his face. thing remembered was defendant holding placed on a area and was escorted downstairs to He oxygen. Emer- attempted to administer where the officers couch (“EMTs”) and checked gency Technicians soon arrived Medical clammy diaphoret- signs. He defendant’s vital was touch — appeared right. placed EMTs defen- all ic—but otherwise hospital. to a brought him ambulance dant a stretcher hospital p.m. at the at 12:25 He was was first examined He having fainting spell diagnosed “syncope,” as had which determining After that defen- an emotional situation. related to well, treating physician discharged him dant was alert and hospital p.m. at 1:15 from the
Meanwhile, counsel, although informed of the fact that defense hospitalized, proceeded had meet with the defendant been going to prosecutor judge and the trial to discuss “how we were He the trial court proceed penalty phase in the of the case.” told occurred, type had he only “some of medical situation” but that had been taken to the neither informed court delay express any start of the hospital nor did he desire penalty phase. indeed, defen- having conferred while
Without with defendant — agreed being hospital examined at the counsel dant —defense prosecutor. They agreed “ground to certain rules” with only proceed aggravating on of the three the State would one notice, filed defense counsel would factors of which it had while prematurely rely only mitigating factors of which he the two “agreed lawyers would Counsel also had filed notice. opening that neither side would call speeches; their [and] waive fact, In counsel any penalty phase.” in the defense witnesses prosecutor commitment that the State would from the obtained
305 (although counsel later penalty “strenuously” seek the death penalty death any advocacy in favor of the acknowledged that return, advocacy). In defense to be strenuous could be said “make a during penalty phase, he would agreed that counsel argument would be followed closing argument.” His very limited agreed prosecutor The prosecutor’s closing statement. very if defense counsel very, limited” argument would “be his “closing ... of a limited to have a commitment” [the] “honored agreements were made of these nature.” None of the discussions consultation, participation, or with defendant’s on the record or input. prosecu- pact with the
Only counsel had made his after defense fact, In counsel met with with defendant. tor did he meet penalty phase guilt phase and only between the once after defendant very meeting held sometime this was a brief and Defendant, not dis- hospital. who was returned from the had trans- hospital p.m., until then had be charged from the 1:15 courthouse, according Sheriffs ported to the which back penal- twenty-five minutes.2 fifteen and officers took between During to fifteen p.m. the five ty phase commenced at 1:45 prior to the start was in the courthouse minutes that defendant holding cell to had to moved from one penalty phase, he be In some of into the courtroom. and then escorted another moments, A counsel met. remaining defendant and defense brief counsel and the discussion between officer testified that Sheriffs minutes.”3 only “several long” and lasted defendant “wasn’t he meeting was that only recollection of the counsel’s Defense and that he advised how he felt may have asked defendant twenty trip minutes. took between fifteen testified that the One officer normally twenty-five stated it minutes. An EMT it took The other officer testified twenty twenty-five minutes. took between Defense ten minutes." had lasted "less than testified that it Another officer minutes, although he than ten it must have lasted more asserted that counsel clearly. not recall could *175 prosecutor. agreement the with the
defendant of terms pro- that the State was Specifically, counsel informed defendant only aggravating factor and that neither the State ceeding on one phase. any penalty new at the he introduce evidence nor would any acquiesced in the decision not to call seemingly Defendant obviously witnesses, in- with counsel was his discussion but especially perspective informed. from depth defendant’s —or basically were admitted as much: “We defense counsel Even not, knowing prosecutors] discussing [the now that whether or factors, [aggravating] and now two dropping these other were fashion, proceed in whether we wanted knowing that we this could the One officer who observed go to this route.” Sheriffs although and forth testified that there was some back conversation counsel, “just basically was defendant and defendant between basically lawyer telling him and listening was to whatever you know, nodding, his head.” prior counsel asserts that his conversation with
Defendant very There no extended discus- penalty phase brief. was options strategy or full consideration legal sion of defendant, According to handling penalty-phase presentation. happened, to defendant merely asked him had which counsel what suggest that responded that had fainted. Counsel did not he delay. Rather, any he defendant wanted there be asked whether ahead, responded, get it over go “[l]et’s which attorneys had informed defendant that the with.” Counsel then penalty phase. agreement regarding the come to an Counsel “agreement” simply no witnesses as a decision that described up: simply “That would be called and that counsel would sum it,” re- saying. Defendant would be defendant recalls counsel no claims that counsel “didn’t ask ceived advice from counsel. He my feelings He contributions in anything. me didn’t ask for or options.”4 gave matter. He me no feeling during asserts he was "numb” this conversation Defendant although whether that was the result court, "weak" in he unable ascertain having trial of his fainted. PCR counsel notes that some evidence or 5, 1986, he had prior to March counsel asserted Defense he to follow procedures wanted with defendant discussed only recalled one conversa- penalty trial. Counsel of a the event whether to call had discussed he and defendant tion in which put not want to his Defendant did sons as witnesses. ordeal, although counsel advocated defense through the sons that, that “it was counsel admitted Other than they be witnesses. know, hours, mulling you on end spent where we not a situation every issue.” over each 5,1986, prior to March he alleged that
Although counsel defense defendant, his none of penalty phase with *176 had discussed Moreover, any denied that defendant reflect that. *177 mitigating a that must consider that as factor. life, you and mitigating by counsel only The other factor advocated defense was briefly, mitigating mentioned almost the catch-all factor. Counsel off-handedly emphasis, or a few of defendant’s and without detail community and charitable activities: Judge Greenberg mitigating to factor deals with other The other that referred regard jury mitigating to and factors which a consider in with circumstances may the fact that Rob Marshall case, the death In this in addition to particular penalty. things, regard at with to his record, life, has no criminal there’s certain least prior is for to done, that he has which he entitled consider. you things, among He involved other with the Ocean Businessmen’s in, was County campaign was chairman for the United Association. You’ve heard that. He Way, raising affairs, and for a number of worked with them in community money years In to with his on various social that, family addition he served United Way. things leagues involving and certain other of a community the swim activities, nature. go through things and the whole he’s litany I don’t want to stand here a in for his or of civic done that —either for other or years people family forty-six have an the area, it to record substantial in that and you nature. Suffice is say, mitigating right a factor. to that as absolute consider community jurors merely consider asking While the defendant’s activities, aggravating sole counsel conceded the existence of the weight be counterba- suggest factor did not that its should by mitigating lanced factors: going aggravating are to ask you The has one factor which they State this as that, statute, and that is the fact under the offense have you consider, that— have to have found found —and at this as I point, lawyer, you accept gain. thought or the for some payment pecuniary procured payment jurors urged to make an concluding,
In defense counsel opinion you find in and to “reach whatever individualized decision jurors impose your did not ask the not to own heart.” Counsel and, fact, “what- penalty, in he invited a death verdict: the death do, just ivith it." you thing we can live ever feel family and defen- counsel never discussed defendant’s Defense support for his sons. He never discussed defendant’s dant’s any background gave jury to view and life. He never reason spare person. jury as a He never even asked jury began Ninety after the its delibera- defendant’s life. minutes tions, it death. returned sentence
B.
majority analyzes all of
ineffective-assistance
Washington,
v.
claims under the standards set out
Strickland
(1984),
2052,
adopted
L.Ed.2d 674
466 U.S.
104 S.Ct.
(1987).
Fritz,
N.J.
Strickland
DiFrisco,
434, 530,
ceedings.
137 N.J.
I
convinced of the wisdom of Justice
remain
stated:
of counsel’s
combined with the
efforts,
severity
The
process
importance
standards
of the sanction at
stake,
require
and irrevocability
determining
strin-
what constitutes “effective assistance” be applied especially
gently
proceedings.
in capital
(Handler,
dissenting)
(quoting
[137
J.,
Strickland,
at
“affected
of Strickland’s
“[tjhese
standards,
carry
prong.
with the old
definitions
no
As
Davis,
meaning
objective guidance.”
supra, intrinsic
or
N.J.
(Handler, J., concurring
part
competent assistance.” 695. prejudice prong of the Strickland circumstances,
In certain
“egregious
there are
presumed to have been met. Where
test is
pre
performance of counsel” a
professional
shortcomings
inquiry into the actual con
without
sumption
prejudice
arises
Fritz,
61,
(citing
supra, 105 N.J.
Against this standard, “Capital are during penalty phase. defendants any Davis, supra, 116 N.J. at counsel,” competent capital guaranteed here, totally defense counsel abandoned A.2d but life, cannot be considered to and thus his role as an advocate legal advocacy. provided competent have
C. absolutely prepara- conclusively no establishes that The record called no penalty phase. Defense counsel went into the tion exhibits, only witnesses, he advanced the most entered no and he any prepare arguments. He did not cursory superficial and objection to the trial raise even one requests charge to and did not arguments, despite prosecutor’s or the court’s instructions Moreover, presence errors both. counsel did not of serious jury provide why should find the catch-all reasons as believed, mitigating Even if defense counsel’s brief con- factor. hardly penalty phase a were versations with defendant about voluntary have made a on which defendant could sufficient basis rights. Certainly, knowing counsel’s failure to waiver his advice, investigate aspects provide meaningful the most basic phase, present a case must be considered penalty ineffective. phase capital a is penalty trial far
The role of counsel it from the traditional role defense counsel because different picture sympathetic of a defen- requires to construct counsel dant’s character: concerned system
American lawyers operate adversary —even best — describing portraying not with events, with past people. Adversary primarily of historical fact —What happened? resolves ordinarily questions presentation into did it? In what state of mind? —that only incidentally require inquiry Who it his character is because proved, usually character. When a defendant’s not for its intrinsic of his deeds, character circumstantial evidence provides “Is do crime?” not he otherwise The traditional issue is “Did he interest. of life?” worthy Yale Cases, Art: J.L. [James The Lawyers’ Capital Doyle, “Representation" (1996).] 417, 420 & Human. psychohistory of the defendant present must Defense counsel jury. Berger, Vivian penalty him See humanize before the *181 Capital Surgeon: Lawyering in Chiropractor as Brain Defense (1990-1991) 245, Cases, Change 250 18 Rev. L. & N.Y.U. Soc. attorneys view as an alien (“[CJapital involves what some defense of Constructing psychohistory’ ... a ‘dramatic unlawyerly task. phase more of penalty at smacks presenting it the client and law.”); White, Assistance Welch social work than of Effective Care, 1993 Capital Evolving The Standard in Cases: Counsel Ill;. (“In 323, case, every capital defendant’s 361 U. L.Rev. defendant.”). attorney to ‘humanize’ should seek history capital crafting personal for each of a advocacy, appropriate but is just view as what commentators 314 required by In
specifically
the Federal
State Constitutions.
is the cornerstone of a constitutional
dividualized consideration
153, 189,
Gregg Georgia,
death-penalty
v.
428 U.S.
197-
scheme.
2936-37,
859, 883,
2909, 2932-33,
98,
49 L.Ed.2d
888
96 S.Ct.
Ramseur,
182-97,
188;
(1976);
supra, 106
at
524 A.2d
see
N.J.
Florida,
447, 460,
3154, 3162,
104
Spaziano v.
468 U.S.
S.Ct.
also
(1984) (“If
340, 352
a State has determined that death
82 L.Ed.2d
crimes,
penalty
for certain
then it must
should be
available
penalty
way
rationally distinguish
in a
that can
administer
appropriate
is an
between those individuals
whom death
Ohio,
not.”);
those for whom it is
Lockett v.
438 U.S.
sanction and
(1978)
2954, 2965,
973,
586, 605,
(plurality
57 L.Ed.2d
990
98 S.Ct.
opinion) (noting
profoundly
that a death
is “so
different
sentence
penalties ...
that an individualized decision is
from all other
eases”).
requirement,'
capital
in
Because of this
essential
Supreme
repeatedly
limita
States
Court has
struck down
United
mitigating
capital
a
defendant can intro
tions on what
evidence
315,
731, 736, 112
308,
Dugger,
111
duce. Parker v.
498 U.S.
S.Ct.
(1991)
812,
(ruling
L.Ed.2d
822
that a codefendant’s life sentence is
nonstatutory mitigating
weighed in
factor that must be
balanc
factors);
ing aggravating
mitigating
Dugger,
v.
481
Hitchcock
393, 398-99,
1821, 1824,
347,
U.S.
107 S.Ct.
95 L.Ed.2d
352-53
(1987)
jurors
(holding
permitted
even
had to be
consider
evidence);
Carolina,
nonstatutory mitigating
Skipper v. South
476
(1986)
1, 106
1669,
(finding
315 mitigating precluded considering, ... from as a sentencer not be any aspect or factor, any of a defendant’s character record and proffers as a the circumstances of the offense the defendant death.”) (emphasis original); than basis for a sentence less 2958, 49 Texas, 262, 271, 276, 2950, 2956, v. U.S. 96 S.Ct. Jurek 428 (1976) (“A 929, 938, jury (plurality opinion) must be L.Ed.2d 941 only of all relevant evidence not allowed to consider on the basis why imposed, it why a sentence should be but also should death jury is have before imposed____ not be What essential is possible information about the individual defendant it all relevant determine.”); Nevada, Riggins v. 504 U.S. fate it must whose cf. (1992) (not 1814, 1810, 479, 133, 112 118 L.Ed.2d 488 S.Ct. drugs to question forced administration of reaching of whether capital during penalty phase denied the defendant the condition). jurors to show his true mental opportunity unequivocal cases that the import and of this sea of is clear necessary have information to make penalty-phase jury must determination; otherwise, sentencing the death an individualized nothing here did to enable is unconstitutional. Counsel sentence jury determination. to make individualized insulting majority suggest for the that because It is almost well-paid, he privately and was was retained defense counsel that in this A .2dat 82. The inference Ante at 690 effective. private effective is well-paid, inexperienced, counsel was case but ibid., totally only “inescapable,” it is belied ludicrous not not record; inescapable. indeed, opposite inference by the life, pre he that if gambled, with defendant’s Defense counsel reciprocated if the not or State little no evidence sented jury penalty, the would under “strenuously” arguing the death impose appropriate one which that this case was not stand premised Capital punishment cannot be punishment. the ultimate II, 527, A.2d supra, N.J. 734 gamble. DiFrisco on Cf. guilty pleas J., rejection of (Handler, dissenting) (arguing for the pleas gamble that the capital such are based eases when pleads guilty). imposed if penalty the defendant will' be death *183 purposefully is derived from Certainly, a death sentence withheld, pertinent information cannot be sustained. I, ... for not “persuasive policy reasons
In Koedatich we found
knowing
capital
in
to execute even a
allowing a defendant
a
ease
right
present mitigating evidence
voluntary waiver of his
and
329-30,
A.2d 939.
during
penalty phase.”
Worse defense actively sought it. though to contest Coun- tence even do, that, jurors you we can live inexplicably told the “whatever sel Thus, any jury. attorney represents An the client to the with it.” *184 readily statement could juror who to defense counsel’s listened that reasonable that defendant himself believed have assumed simply he to die and that people could conclude that he deserved conclusion, they Obviously, jurors if reached such a did not care. Precisely a sentence. find it much easier to vote for death would general practice reason, experienced capital as a counsel for this Gary jurors spare to the defendant’s life. See specifically ask Goodpaster, For Assistance Counsel The Trial Life: Effective (1983). 299, Cases, Penalty N Y. L.Rev. 335 Coun- Death 58 U. conscience, appeal to to ease the exercise duty is to not sel’s conscience.
Moreover,
stipulated
of the sole
counsel
to
existence
defense
permit
to
such
explicitly
refused
aggravating factor. We
have
a
seeking not
contest
death
stipulations
to
when a defendant
327-28,
I,
A.2d
supra,
Even if such consent of option requires the informed certainly such an only found where consent can be capital defendant. Informed v. Johnson knowledge pertinent facts. has defendant Cf. 1019, 1023, 1461, 464, 1466 Zerbst, 458, L.Ed. 58 S.Ct. 82 304 U.S. (1938) validity “depend[s], in each a (holding that the of waiver
318 case, upon particular surrounding facts and circumstances case, including background, experience, and conduct of the accused”). I, supra, 112 But see Koedatich N.J. at 548 A.2d (“[A] capital permitted] in a [is defendant ease execute voluntary knowing right present a waiver of his even most, mitigating during penalty phase.”). evidence At counsel far-reaching spoke with defendant for ten minutes about the arrangement prosecutor forgo full counsel had made with the penalty phase. long enough Ten minutes can never be to discuss weighty certainly such issues and was insufficient here where recovering episode from an acute had resulted hospitalization fully in his and where he could not have been Savage, supra, focused and coherent. See N.J. (“In trial, capital strategy
A.2d 455 where is crucial to the life- determination, adequate pretrial or-death the need for consulta paramount.”). tion becomes
Further, actively mitigating counsel here did not seek out evidence, leaving jury penalty-phase something thus with less complete picture mitigation specialist than a of defendant. A who files, transcripts, reviewed the trial defense counsel’s and defense copious mitigation phase counsel’s notes concluded that “the inves- tigation in accepted practice State v. Marshall did not meet the proper mitigation investigation, standards for trial level and was *185 many respects.” Specifically, attorney deficient “the defense develop comprehensive history through to a failed social inter- client, Moreover, family significant views with the his or others.” attorney necessary “the failed to collect the of records documenta- ry support history integrate evidence to the social and he failed to records, background presented through materials as inter- views with the defendant or collateral interviews.” preparation
Counsel’s lack of was confirmed PCR counsel. PCR counsel reviewed all of the contents of defense counsel’s trial investigator. file and the materials the hands of counsel’s complete files contained notes of interviews with defendant and all correspondence. findings astounding: counsel’s are PCR legal [counsel’s] are materials in file that reflect research into any There no any nothing relating to the nature and of of death There is scope penalty. aspects nothing jury mitigating to aggravating There related instructions or factors. is anything governing [counsel] to re- Nor is there indicate that cases. capital charge might to or motions or that searched, discussed with anyone, any requests this with to the death of case. aspect be filed penalty respect relating no or to back- [TJhere records, were correspondence any ... reports mitigation nothing ground investigation to for a case. There is in preparation investiga- or that with or to retain a social worker he consulted attempted indicate mitigation are a Nor there records any tor to serve as capital specialist. qualified Mr. Marshall or childhood medical records. attended, any from the schools any that or other indication addition, statements, In there are no notes, reports long- investigator] members, with teachers or [counsel] [his family or spoke any background. regarding friends the defendant’s time psychi a Shockingly, counsel never even consulted with defense by a psychologist or examined mental- atrist or had defendant ample despite fact the record contains professional health problems. After suffered from mental indications that defendant suicide. See all, attempted that defendant commit we know 181-200, (discussing “suicide ante 690A.2d at 47-56 defendant’s (“Other report than the see also tape”); PCR affidavit Counsel’s from, Atkins, 14,1986, February reports are no dated there Elliot indicating correspondence [counsel] with or notes consulted From any professionals to the defendant. mental health evaluate his was limited to an report, the Atkins it is clear that consultation night he of the defendant on the evaluation of the mental status suicide.”). attempted imbalances,
Moreover, of mental even without such evidence expert ineffective. The a mental-health failure consult capital relevant to simple many defendants have issues reason — condition, permits explicitly those defendants mental and the law White, supra, 1993 U. Ill. mitigation. evidence in argue (“[I]t’s capital has rare L.Rev. at 339 case which fact, In seven delineated two out problems.”). no mental capacity. mental mitigating factors concern defendant’s (“The 2C:11-3c(5)(a) influence under the N.J.S.A. defendant was to consti insufficient mental or emotional disturbance extreme 2C:11-3c(5)(d) (“The N.J.S.A. prosecution.”); a defense tute appreciate wrongfulness of his conduct capacity to *186 320 requirements was conduct to the of the law to conform his
or
or
impaired
the result of mental disease or defect
significantly
as
intoxication,
degree
to a
sufficient to constitute
defense
but not
Further,
psychiatric problems
evidence of
is
prosecution.”).
to
mitigat
support
of the catch-all
frequently used
defendants
factor,
explicitly
permitted by this
See
ing
and
has been
Court.
(1993)
301-08,
Martini,
176,
For
view,
forgo psychi
“In
presented.
our
counsel’s decision
and
admittedly participated in
examination when defendant had
atric
conduct,
possibly
history
illness
and
had a
of mental
such bizarre
abuse,
drug
contrary
professional
competent
norms of
and
thorough
in a case
‘The usefulness of a
evaluation
assistance.
”
capital
problems
where the
defendant has
of this kind is obvious.’
619,
(quoting Burger v.
Savage, supra,
Not to defenses is the mark develop only psychiatric failed to ineffectiveness. Counsel
321 evidence, develop to com- mitigation but he even failed most mitigation family Robert mon circumstances. of all evidence— sister, Carlo, very Oakleigh De who to her Marshall’s was close brother, family his and for his and moved into house cared who arrest, who counsel personal affairs after his and handed defense child- payments, his was not even interviewed about defendant’s fact, affidavit, In in a De stated hood and life. sworn Ms. Carlo counsel, that defense knowledge, regarding the members, never with to other me, or my family spoke testifying At I took of our in the trial. one it myself possibility penalty point upon give photographs [counsel] manner, 100 to in some use, my to over to family I been were to me unused. would have brother’s defense. returned They up-bringing, of my to about our testify family history, relationship prepared members, our and other brother relationship brother with parents family my having sons, his
with his sons and effect brother’s incarceration was my caring. for I was John, whom especially father, letter, Moreover, pretrial highlighted in a defendant’s “The upbringing had in of his powerful role defendant sons: guidance, understanding, boys desperately [defendant’s] need paternal importantly and love.” Even defense support moral most strength mitigating this evidence understood the counsel very compelling children “would have been noted that defendant’s phase.” That to be penalty at the evidence needed witnesses Blodgett, 754 jury. v. presented penalty-phase to the See Mak (W.D.Wash.1991) (finding for ineffective F.Supp. 1490 counsel penalty testimony family and others at failing to offer members (9th denied, Cir.1992), U.S. 614 cert. 507 phase), aff'd, 970 F.2d (1993); 951, 1363, v. 122 742 see also Middleton 113 L.Ed.2d S.Ct. Cir.1988) (11th to (finding that failure Dugger, 491 849 F.2d miti investigation background to uncover into defendant’s conduct counsel); assistance of amounted ineffective gating evidence (11th Cir.) (finding counsel ineffective Tyler Kemp, F.2d 741 v. 755 spousal present evidence of abuse failing for 582, denied, 1026, children), 106 88 474 U.S. S.Ct. care his cert. Kemp, (1985), grounds, Peek v. other overruled on L.Ed.2d 564 421, 939, 107 (11th denied, Cir.), cert. 479 S.Ct. 1479 U.S. 784 F.2d (1986). 93 371 L.Ed.2d
322 if
Even credit counsel’s claims that defendant did want we experience testify might his sons to for fear of how that affect them, family members no reason not to call other there was testify lay options the other to decide or to out how obligation, receiving such proceed. has the even after “Counsel instructions, potential avenues and the client of to ‘evalúate advise ” White, supra, L.Rev. offering potential those merit.’ 1993 U. Ill. (11th 1477, (quoting Singletary, v. 943 1502 at 349 Blanco F.2d Cir.1991), denied, S.Ct. 119 L.Ed.2d cert. U.S. (1992)). options hiring mitigation expert of those One *188 testify care and to review and to about defendant’s for his sons his 527, Zant, family obligations. Curry 371 general v. 258 Ga. Cf. (1988) 647, failing (finding 2d 648 counsel ineffective for to S.E. psychiatrist testify mitigation penalty I phase). hire to at share mitigation opinion concerning expert’s “that information Rob ert O. exists which could have served as a basis for Marshall However, to in productive mitigation. defense counsel’s failure vestigate properly being resulted in information unavailable this to jury.” sentencing assemble, investigate, present mitigating
The failure to
and
capital
evidence
the most basic form of ineffectiveness of
is
“By failing
inquire
very
counsel.
into the
facts that could
mitigation,
performance
support his case in
counsel’s
‘so under
proper functioning
process
mined the
the adversarial
just
having produced
trial
relied on
result.’”
cannot be
as
Strickland,
Savage, supra,
624,
(quoting
323
(5th Cir.1986)
attorney
for
ineffective
(finding capital defense
denied,
1087, 107
evidence),
479 U.S.
mitigating
cert.
presenting no
(1987);
1292,
Kemp,
Further, guidelines for Bar Association the American counsel “should conduct specifically state that counsel defense phase guilt/innoeenee relating to the investigations independent ABA capital trial.” Guidelines penalty phase of a to the *189 Penalty in Death Counsel Appointment and the of Performance added). Moreover, (1990) 11.4.1(A) Cases, (emphasis Guideline all to “discover should seek provide that counsel guidelines the at Id. Guideline mitigating evidence.” reasonably available Human, 426 at 11.4.1(C); Doyle, supra, Yale J.L. & 8 see also rec- (“Good information —school lawyers all of the capital collect memories, own ac- family the defendant’s ords, history, medical humanity.”); Bruce A. bear on the defendant’s counts —that in the Sixth Meaning “Counsel” Green, Fiction: Lethal of (1993) (“[I]t is almost Amendment, L.Rev. 78 Iowa sentencing at the present no evidence invariably mistake to a Penalty Case: Defending the Death Lyon, Andrea proceeding.”); (1991) L.Rev. Different, 42 Mercer Makes Death What lawyers “[g]et personal capital records (explaining that effective cards, report objects family photographs, from the such as and mitt”); White, books, supra, 1993 U. or even a baseball favorite (“To evidence, capital mitigating defense L.Rev. at 341 find Ill. history, complete attorney the defendant’s social must construct relationships in the significant the and events exploring all of attorneys Experienced emphasize that the defen life. client’s ”). history ground up.’ ‘from social must be constructed the dant’s mitigation ignored evidence The extent to which defense counsel premature the He notice of the obvious from record. served very day he filed his mitigating factors the State the same only receipt pretrial discovery request and week one after eligibility. plausibly have of death Counsel could not notice investigation mitigating adequate into the factors within conducted discovery period prior receipt of the that one-week time and to the expanded scope never amended or the of materials. Counsel State, originally despite on the his mitigation from that served so. opportunity to do phase not limited respect penalty failure
Counsel’s superficiality preparation His lack are to his omissions. statutory mitigating handling from his of the sole factor. evident c(5)(f) jurors thoughtlessly asked that the not be told that the He applied any significant mitigating defendant with “no factor added). prior activity.” (Emphasis he history of criminal Instead jurors simply applied that it asked that the be told defendants all, history jurors no criminal and he asked that the be told with this, By they doing must find factor. counsel foreclosed potentially telling argument mitigating applied factor —that with limited criminal and that the even to defendants histories jurors give weight even more to the circumstance that should Moreover, history by having the had no criminal at all. factor, they jurors tell find defense court must this virtually jurors not counsel ensured that would discuss finding simply important, It is the factor that is factor. weighing evaluating the factor and process but also
325
any
Competent
factors.
balancing
against
aggravating
it
then
thought
through
prior
issues
to the
these
counsel would have
stronger arguments
and
have devised far
penalty phase
would
having
comes from
type
here
This
of error
than counsel
raised.
advocacy.
advocacy
attorney
penalty-phase
His
an
unskilled
Davis,
objective
of reasonableness. See
far
standard
fell
below
(“We
356,
expect capital defense
supra,
N.J. at
Counsel’s ineffectiveness was also charge, he jury suggested He no and failed difficult instructions. any jury’s suggest placed limitations on the use to be rarely Guilt-phase applicable in evidence is guilt-phase evidence. Thus, penalty-phase courts must endeavor entirety to issues. its explain and relevant and which to which evidence material Erazo, disregarded. be State v. 126 N.J. evidence should (1991). 131-33, recognize to or deal A.2d 232 Counsel failed Moreover, explain or ask to have he did with this issue. jurors they guilt-phase could explained to the consider they rejected mitigation though even had and evidence defenses I, supra, guilt 123 N.J. during phase. Marshall that evidence at A.2d 85. jury charges, did not failing suggest
In
to
counsel
addition
charges
He did not
object
that were delivered.
to the erroneous
jury
object
instruct the
that it should
when the trial court failed to
existence
disregard
guilt
and
anew as
its
verdict
deliberate
I, supra,
aggravating
factor. Marshall
of the murder-for-hire
fact,
noted,
138-40,
previously
as
diamet
victim-impact evidence that prosecutor when the stated heard from defense counsel history. prior had Maria Marshall “Maria Marshall no criminal civic-minded, option her of give and did not the was this defendant 163-64, thirty years.” “inappropriate.” Id. at argument That 586A .2d85.
Despite preparation penalty phase the the total of for absence in time the and the dramatic occurrences the brief between penalty guilt phases, counsel never even asked for a continu- and attempts by professing to to have ance. He exonerate himself adopted “get “Getting-it- suggestion to it over with.” acceptable strategy. over-with” is not an It is that attitude which guilt imperative makes there be a continuance between the it that penalty phases. and Most continuances are and defense because attorneys request they emotionally following with the to substantively unprepared penalty phase immediately proceed jury, guilt and to the The the the defense need time defendant, phase. attorney from focus recover the conviction and to on the issue emotionally capital representing sentencing. grants a a an level, On substantive unless court attorney a a must for two continuance, the capital attorney essentially prepare legal governing trials rules both the the simultaneously. complexity guilMnnoeenee and this and trials penalty capital complicates phases preparation the need for
intensifies time. Right [Robin Abrams, Note, E. A to Continuance Between Capital Defendant’s (1989).] 64 Trial, the Two Phases Death N.Y. U. L.Rev. 581-82 Penalty supra, Berger, Change, N.Y.U. Rev. L. at 250- See also & Soc. “ (noting attorneys ‘try ... than that defense to win rather it,’ prepare losing are devastated when the client is [and] just my In convicted and afterward throw in the towel. one of eases, adequate original lawyer, job had at the the who done trial, guilt proceed penalty to the court to tried convince night phase immediately that after the verdict came late —so following day! Perhaps game he attend a he could football exhausted, depressed, was not so much callous toward client as stage.”). importance sentencing and to the unattuned critical emphasized get-it-over-with approach by agreeing Counsel prosecution advocacy in his with the not to bear down any spared presenting and defendant’s life be evidence suggestion jury hardly arguing mitigation. His final just you thing” own “whatever feel illustrated his do jury. penalty can disengagement His comment “we from made, any jury assuredly jury’s eased the live decision with” returning its comfort level a death conscience raised sentence; indeed, impose the death it was “a virtual invitation White, supra, Ill. L.Rev. at 341. penalty.” 1993 U. sum, attorney at the
In we here an who was so ineffective have undoubtedly him “a stage, Judge would label penalty Bazelon *192 Bazelon, L. the Sixth David walking violation of Amendment.” Counsel, 1, (1975). 42 U. Cin. L.Rev. The Assistance of Defective
D. into majority, splintering failings interrelated by The counsel’s against tiny peccadillos weighing then those minutiae heavy evaluating used claims ineffectiveness standard counsel, single slip standing alone surprisingly not finds that no consequential prejudice. significant enough establish was or majority’s approach The misses the forest: Defense counsel grossly ineffective. “general as majority
The defendant’s contentions characterizes penalty phase,” and ineffectiveness in the ized claims counsel’s hearing because it is them even the benefit of dismisses without failed to demonstrate a reasonable “convinced that defendant has ultimately succeed on the merits.” that claims will likelihood those 251, at The does not come close Ante at 690 A.2d 82. Court noting conviction. While explaining supporting or the basis its allegation it about the that defense counsel that is “disturb[ed]” penalty phase, at ante had no with defendant about discussions 251, 82, trial recognizing at the evidence “that 690 A.2d and while normally that preparation was less than penalty-phase counsel’s 82, counsel,” 251, at at ante 690 A.2d experienced undertaken has to meet not that defendant failed the Court nevertheless finds prejudice prong as only prejudice prong, but also Strickland’s 251, 82. it. Ante at 690A.2d at the Court has redefined failed to dem has majority that “defendant now concludes The produce evidentiary hearing would any that an likelihood onstrate that, probability there is a reasonable show that proof that would errors, jury’s penalty-phase unprofessional but for counsel’s substantially.” Ante at have been affected would deliberations Strickland, 694, supra, 466 U.S. at 258, (quoting at 83 690 A.2d 698). reaches this The Court L.Ed.2d at 104 S.Ct. at proper that finding that “the contention on its based conclusion mitigat unearthed new preparation would have investigation and substantially the have affected probably would ing evidence speculative to warrant an simply too penalty-phase deliberations at 83. Ante hearing.” 690A .2d evidentiary under its unacceptable. Even are conclusions Court’s case, and the prong, I can find no prejudice redefinition of one, that a proposition for the majority that stands cites that his if a defendant establishes hearing denied even can be objective of reasonableness. standard fell far below counsel opportunity to introduce evidence next to no Defendant had this, mitigation. Despite have used in or should counsel could flatly in the record now before Court does exist evidence There is substantial majority’s rash conclusion. contradicts that his good to his sons and was a father that defendant evidence Moreover, impact on them. have a detrimental execution would *193 listing opinion by simply the majority page a of its fills over the mitigating evidence contends constituted evidence that defendant argued during presented, and investigated, have been that should 255-256, Then to penalty phase. Ante at A.2d at 84-85. 690 the evidence exists is not claim that such pretend that defendant does majority seriously imagine the it to disingenuous. I find hard could have life and character aspect no of defendant’s believes that mitigation punishment the in of have been considered and should the giving of Why the Court afraid of death. is mitigating evidence not such to establish whether or opportunity exists? majority upon which the mitigating evidence
As for the little “possibly stumbles, evidence could actually concedes that such it
329
256,
at
jury’s own
review,
guise
appellate
of
to die.
In the
defendant deserves
fact-finding.
launching
In
its
engages in the most wolfish
Court
argument
introducing mitigating evidence in this case would
holding
futile,
majority
verges perilously close to
have been
mandatory in this circumstance. Such
penalty
that the death
was
principles
death-penalty
proposition
violates fundamental
Shuman,
66,
483
107 S.Ct.
jurisprudence. See Sumner v.
U.S.
Carolina,
2716,
(1987);
428 U.S.
97
56
v. North
L.Ed.2d
Woodson
Louisiana,
2978,
(1976);
280,
49
v.
96 S.Ct.
L.Ed.2d 944
Roberts
(1976).
3001,
325,
49
974
428 U.S.
96 S.Ct.
L.Ed.2d
Prejudice
presumed
failings are as
must be
when counsel’s
participation
as
“[W]hen
serious
these.
the level
counsel’s
nullity prejudice need not be
makes the idea of a fair trial a
shown,
Jack,
240, 249,
144
676 A.2d
presumed.”
it is
State v.
N.J.
(1996)
659, 104
2047,
Cronic, supra,
at
(citing
466
at
S.Ct.
U.S.
Fritz,
668);
336.
supra,
L.Ed.2d
Because of defense counsel’s decision” jury guilt phase, jury was unaware qualify the before the Mejia, 141 N.J. “legal full effect” of its See State v. decisions. (1995). 475, 485, disturbing, A.2d Even more counsel’s 308 trial forgo qualification at the outset of the decision to death penalty-phase jury fully was far from informed resulted in a Further with it was confronted. about the awesome task which more, death-prone jurors jury may one or more have included to death. Addition predisposed were to sentence defendant who may fully differ ally, jury not have understood the because been, penalty phases, it could have guilt ences between subconsciously, unduly influenced and induced consciously or impose the death sentence. guilt determination to its recent regard requires vacation of defen ineffectiveness this Counsel’s dant’s death sentence.
A. namely, any that in criminal begin proposition, an obvious I with I, supra, jurors impartial. fair and prosecution, must be Williams 60-62, 641. dire serves the essential at 459 A.2d Voir 93 N.J. jurors jury culling potentially from the venire. function of biased dire, During either the court or the A .2d 641. voir Id. jurors’ variety potential into views about parties inquire ability impartial. example, For subjects be relevant their *196 law jurors are asked their attitude toward enforce often about innocence, ment, of and comprehension presumption their of Indeed, a graphic photos dispassionately. ability their to view constitutionally inquire during to voir may be entitled defendant highly ensuring to subject relevant that he dire into a See, 28, Murray, e.g., a v. 476 U.S. 106 receive fair trial. Turner (1986) that, 1683, (holding of L.Ed.2d 27 because interra S.Ct. 90 case, inquire pro to about nature of entitled cial attitudes). jurors’ racial spective
Although jurors in all
must be able to follow the
criminal cases
variety
subjects,
requirement is enhanced
regarding
law
a
I, supra,
life
stake.
93
at
when a defendant’s
is at
Williams
N.J.
61,
Capital jurors
understand with unmistak
333 consequences life-or-death that their evaluation of the evidence entail. will penalty particularly are
Jurors’ views about the death relevant during capital capital jury voir dire case because must be jurors willing impose composed of who are able and a sentence required opponents law and who are neither staunch nor as proponents penalty. Consequently, although of the death staunch jurors expressing qualms capital punishment may not be about simply harboring qualms, they excused such must be removed “substantially impair” ability their if their reservations will Texas, 38, 45, 2521, 100 follow the law. Adams v. 448 U.S. S.Ct. 581, (1980). Moreover, 2526, jurors in favor 65 L.Ed.2d biased penalty of the death must be removed for cause at a defendant’s Illinois, Morgan request. v. 504 U.S. S.Ct. (1992). jurors general, capital In must able to
L.Ed.2d 492 be regarding capital punishment, including the law both the follow eligibility imposition of death as as the actual determination well penalty. the death Adequate during capital voir dire cases thus serves the indis- pensable ensuring jury predisposed is neither function of that the (either eon) regarding penalty generally pro or nor the death may any regarding specific more trial issues that arise biased *197 during capital greater importance ease but that take on a criminal involved, victim, (e.g., type of offense the status of the trial issues). photos, qualification” racial “death is graphic and Such to a fair trial. essential
B.
juries
necessity
capital
component of the
that
be as unbi
One
juries
requirement
that
understand the
possible
ased as
is the
485,
supra, 141
662
legal
Mejia,
of their
N.J. at
effect
decisions.
Ramseur,
311,
308;
supra,
524
188.
106 N.J. at
A.2d
Consis
A.2d
principle,
require
not hesitated to
trial
tent with this
we have
juries
guilt-
penalty-phase
infor
provide
both
and
-with
courts
knowledge
impact
to full
of the
of their various
mation critical
334
295, 370-72,
decisions. State
I)
(1996)
juries
parole
to inform
(Loftin
(requiring trial courts
sentence); Mejia, supra,
noncapital
a
in the event of
ineligibility
485-87,
jury
(requiring
be informed
A.2d 308
that
335
decisions,
emphasize
magnitude
of those
and thus to ensure
jury
impartial.
guilt-phase jury
“mildly”
that the
must be
guilt
death-qualified
legal
so that it understands the
effect of its
being
death-qualified
so
as to be conviction-
decisions without
contrast,
By
penalty-phase jury
fully death-
prone.
must be
understands,
terms,
qualified
magni
so that it
no uncertain
I,
411-12,
supra,
at
680
tude of its decision. See
146 N.J.
Lofbin
J.,
(Handler,
dissenting) (describing
purpose
A.2d 677
nature and
qualification).
guilt-phase
of limited
death
subject
single jury effectively
a
to a
confronts him
To
defendant
jury
fully death-qualify
either
before
with a Hobson’s choice:
jury
guilt phase,
may
conviction-prone guilt
result in
which
a
acceptable penalty jury,
fully death-qualify the
and an
or do not
jury
guilt phase,
increasing
guilt-
of a fair
before the
thus
the odds
jurors
phase jury,
allowing hanging
for the
while
be seated
410-12,
(Handler, J.,
penalty phase.
Id. at
The former (Handler, dissenting).] [123 A.2d J., N.J. penalty- Despite my separate guilt- firm conviction that juries constitutionally required, recognize I phase are 227-228, position. A.2d at does not share this Ante at Court however, Fortunately, options lesser are available 69-70. several alleviate, eliminate, they if the constitutional even do not by restricting capital jury. one defendant to harm occasioned empanel juries the outset of the option The first is to two from trial, fully death-qualified. The mildly death-qualified and one one death-qualified jury deliberate at the conclusion of mildly would fully death-qualified jury deliber guilt phase, while the would penalty phase. procedure This would ate at the conclusion guilt-phase a tainted forcing a defendant to choose between avoid penalty-phase jury. It also would avoid the jury and a tainted empaneling penalty-phase expense and inconvenience of jury *199 guilt phase requiring a rerun of the after the is concluded and during penalty phase. guilt-phase the evidence second, related, mildly option empanel one death- A significant qualified jury guilt phase for with a number of penalty phase, fully court Before the the trial could alternates. eligible replacing any ineligible jurors death-qualify jury, with expense inconve- Again, alternates. this would reduce and jury qualifying penalty-phase go long would a nience of a new and rights. way preserving capital a defendant’s constitutional system, including present are to the the use There alternatives juries. no our separate In event should we should abdicate fair, responsibility capital provide defendants with constitutional fully juries by throwing up impartial, informed our hands separately qualified juries “too or “too because are difficult” stake, expensive.” a life is at concerns about the time and When jury expense empaneling separate truly petty. a become C. high degree interdependence between two
Given single jury, capital phases and the use of a counsel must current pro- death-qualification phases both make decisions with ceeding requirement Failure to fulfill this can charac- mind. be only ineffective. terized as case, constitutionally
In
the trial court
defec-
this
initiated
during
process
by denying
tive
dire
defense counsel’s motion
voir
jury;
separate penalty-phase
completed
defense counsel
by
engage
process
requesting
error-laden
then
that the court not
juror
apart
superficial
ques-
any
qualification
death
from the
by refusing
tionnaires. The court thus committed reversible error
juries,
empanel
compounded
the court’s error
dual
counsel
clearly
qualification,
of all death
an act that
his elimination
assistance of counsel.
constituted ineffective
yet
counsel’s decision “a debatable
The Court terms defense
gambit
‘conviction-pronejury’----”
designed to avoid
reasonable
Ante at
previously,
A
I
690 .2dat 69. As have observed
to the
reasonable,
extent that
the Court views such a decision as
it
fully death-qualified guilt-phase
embraces the contention that
I,
supra,
juries
Marshall
123 N.J. conviction-prone.
are
222-
(Handler, J.,
dissenting). Obviously,
juries
Even if the Court somehow in sufficient acrobat (at superficially) paradox to overcome least ics the inherent its claim, disposition portion of of this the it must admit that defense penalty phase request jury counsel’s failure before the to that the death-qualified implicitly be was ineffective. The concedes Court by skipping prejudice that this choice was to the unreasonable 227-228, test. Ante at prong of the 690 A.2d at Strickland/'Fritz 69-70. Such a concession of unreasonableness is unavoidable possible strategic justify no choice could counsel’s failure. because jury request death-qualified his that the not be before the While guilt phase arguably may “strategic” in avoidance of have been its jury, request jury conviction-prone his failure to that the be death-qualified penalty phase only can indicate incom before petence. discussing
The Court avoids even defense counsel’s embarrass- by arguing ingly performance respect deficient in this that defen- prejudiced dant was not because the trial court would not and granted request. The trial court should have not should have juries, separate made or granted the motion had it been because juries, fully death-qualified penalty-phase are constitution- at least court, minimum, request- if ally required. Certainly, at the trial ed, compelled penalty-phase question have been would jurors sitting jurors death-prone no at the to determine that were penalty phase. jury death-qualify request that the trial court
Counsel’s qualification guilt request phase and his failure death before the jury both constituted ineffective assistance penalty-phase appreciate legal Guilt-phase juries must effect and counsel. decisions, juries penalty-phase significance their while moral penalty. particular, In impartial regarding the death must be possibility jurors prejudiced predis- defendant was jurors re- posed capital punishment or toward otherwise-biased during Penalty-phase panel penalty phase. mained on the jurors aggravating mitigating must able evaluate factors be fairly. Morgan, supra, 504 and to balance them U.S. Yet, at 502-03. we never know
S.Ct. at 119 L.Ed.2d will jurors more who defendant to die whether one or sentenced task, unwilling perform or this because defense were unable *201 counsel did not think to ask them.
D.
request
to
The ineffectiveness of defense counsel’s failure
death-qualified
greater
even
penalty-phase jury
the
be
takes on
significance
in
of
case.
when viewed
the overall context
this
jury
guilt
to
death-qualify
prior
to
the
Counsel’s decision not
penalty
jurors
favor
phase
biased in
death
to
allowed
jurors
jury.
subsequently
defen-
Those
convicted
remain
capital
(implicitly concluding
he had lied in his
dant of
murder
testimony)
immediately
then
more than a short
and
—without
any type
qualification proceeded
of death
break and without
—
jurors
by
phase.
propelled
Pro-death
were thus
penalty
convict,
factors, including their recent and vivid decision to
several
adequate
impress
magnitude
on them the
the lack of
voir dire
decision,
the lack of instructions about
penalty-phase
of the
side, jurors
mitigating
flip
importance of
evidence. On the
penalty
absolutely
sup
no
qualms about the death
received
with
strengthen
port from either counsel or the court to
their resolve
during penalty
out
deliberations and not to cave
hold
jurors
pressure
pro-death
from
who had the momentum of a fresh
persuade.
conviction to aid them their efforts to
murder
Cf.
Ramseur,
300-18,
(predicating
supra,
Counsel’s utter allegedly “strategic” death-qualification and his “stra- his decisions impact guilt phase on the tegic” appreciate the failure to only case of ineffective penalty phase can be described as a classic assistance of counsel.
IV discovery history history case is a violations. of this numerous, continuing, and serious that one are so These violations vital prosecutor purposefully withheld must wonder whether the to assure a conviction. from the defense an effort information discovery have been identi- separate one-hundred violations Over permeated prosecution this violations have so fied so far. The compelled to remand for appeal, the direct we felt that even before I, 171-207, supra, 123 N.J. at *202 hearings matter. Marshall on the background, astounding the this Despite 85. rather 586 A.2d disturbing conviction and masterfully avoids Court vacuum, in separate considering violation each death sentence minimizing the cumulative effects and thereby dispelling their violating in of its impact persistent course conduct of State’s discovery obligations. violations,
Admittedly, discovery when viewed many of the isolation, upset to defendant’s conviction provide no basis which However, specific items not several and death sentence. of violations. rise to the level constitutional timely disclosed do Further, discovery with which our rules were frequency strong generates implication prosecuto- violated in this case disturbing, more the Court’s short-shrift- rial misconduct. Even derelictions, ing discovery death-penalty in a rampant these less, bending ugly specter of the rules no raises the State case execution, acquies- person’s and the Court’s effort obtain complete rejec- majority’s approach, a in that The cence effort. any opportunity for an examina- tion defendant’s claims without motives, unsatisfying and prosecutors’ ensures tion of plausibly expressed we never learn whether these will fears — —are justified. post-conviction ruling grounded Its eviscerates relief.
A. now, light nearly a have come For decade documents possession, under prosecutor’s in the that were discoverable were rules, Jersey’s discovery and that were not turned broad New every It that with new over the defense this case. seems every report press with new about hearing on issue and case, establishing is unearthed the State’s viola- more information discovery obligations. its tions of trial, resisting prosecutors prior to it was clear were Even to the defense. of information that material disclosure example, supply notes of interviews with For the State refused until the month trial. codefendant’s alibi witnesses *203 regarding defendant’s to turn over notes prosecutors even refused by the trial ordered to do so witnesses until to State statements Moreover, related to the Marshalls’ reams of documents court. produced. were never financial situation trial, abundantly that the had clear State During the it became only prosecution obligations. Not did the utterly to meet its failed with defense witnesses notes of its interviews use undisclosed sister, but it used defendant’s defendant and his cross-examine him, previ- though those statements against even own statements incident, In the trial court was ously disclosed. one had not been testimony eliciting from Sarann preclude the State from forced to to her because regarding defendant’s statements Kraushaar morning of her until the not disclosed those statements State had turn over failed to Repeatedly, the State examination. direct opinions and bases of the expert witnesses curriculum vitae did not example, For the State had formed. that those witnesses Hickman, expert, tire George the State’s report by provide a opinions to which Hickman all facts and including statements of opinions grounds for those as summary of the testify and a would testimony to on his The relied required by Rule 3:13-8. State pulled to the he had over assertion that that defendant’s establish Moreover, had been false. of a flat tire of the road because side regarding any handwritten notes turn over of the did not the State assistant, his Gail by Hickman and conducted the examinations Tighe. discovery and seriousness violations
The extent of in the trial had concluded soon after became clear those violations revealing an article Times ran the New York case. In this prosecute one of the State’s promised not to had prosecutors for her return Kraushaar —in important witnesses —Sarann most scope remand to determine ordered a testimony. This Court hearing, During the remand impact of the nondisclosures. and discov- immunity agreement had been conceded that the State State, howev- possession. had been the State’s erable and had not the documents er, failure to disclose that the maintained investigators willful, argued prosecutor and it that the been immunity correspondence had into contact with the who had come Further, discovery process this case. involved not been placed had been misfiled argued that the documents the State file,” “discovery file.” The State “correspondence in the supposed to be documents were contended that all discoverable then, principal agent discovery and that the case placed in a folder disclose the items to prosecutor, would with the assistance *204 explanation, trial accept the the Appearing to State’s the defense. discovery and contents of the State’s court ordered that the entire The next correspondence turned over to the defense. folders be discovery In was no file.” day, “[t]here the announced that State folder, reviewing correspondence the defense located two the that had never been turned over. further discoverable documents key payments made to another wit- documents related to Those ness, Billy Wayne McKinnon. yet the
Despite
unearthing of
another violation and
State’s
the
file,
discovery
the
misrepresentation regarding the existence of a
actions had not been willful.
trial court concluded that the State’s
establishing that Ed
pointed to the
evidence
The court
State’s
principal
agent responsible for
Murphy had been the
ease
ward
only
county prosecutor and
discovery.
It concluded that
the
immunity agreement
Investigator Mahoney
been aware of the
had
agreement
misfiled.
It also refused to
and that the
had been
letters,
any
regarding
financial
em
consider
issue
the McKinnon
Moreover, despite
scope
the remand.
the
phasizing the limited
violations,
to order the
to turn over all of
the court declined
State
rulings
upheld
and concluded that the
its files. This Court
those
realistically
affect
immunity agreement
could not have
Kraushaar
I, supra,
properly
Marshall
the results had it been
disclosed.
ed
209-11,
171-207,
But see id. at
586 A.2d
at
Many more violations including directly appeal, several that defense since direct testimony impact the witnesses at the remand State’s just example, entirely in an hearing discussed. For different case, ledger.” existence of “death capital the State disclosed the investigator ledger principal responsible for each This listed Investigator Mahoney as County. was named homicide Ocean investigator responsible managing investigation, for file, discovery and all in the Marshall case. This evidence matters testimony hearing flatly Mahoney’s the remand contradicted responsible that he neither involved with nor when he stated discovery substantially court relied on in this case. The trial testimony determining the nondisclosure this immunity not willful. It should be agreement was Kraushaar Mahoney immunity agreement, but knew about recalled Murphy, Mahoney, was court that the trial determined discovery responsible for in the case. discovery also other blatant violations.
The defense unearthed eight- example, in counsel located an For defendant’s PCR *205 Davis had page typewritten statement that State witness James under when Davis was police on December made fact that Despite the Mrs. Marshall. the indictment for murder of prosecu- on undoubtedly the basis which the this statement was statement, tion, very changed Davis’s day same of Davis’s on the witness, to a material the state- from a murder defendant status fact, state- turned to the defense. In the ment was never over during testimony, and even Davis’s ment was not mentioned trial, had prosecutor maintained that Davis’s status during to the only as of McKinnon’s statement changed a result been police. violations, discovery moved glut
Based on this discovery. The defense prior hearing for further PCR to believe had been withheld specific items that it had come sought based on the discovery of the State’s file complete as as well Although dissembling and nondisclosure. track record of State’s specific requests for docu- entertained defendant’s the trial court ments, request for disclosure of repeatedly denied his the court requests with those Basing his on interviews the entire file. defense, speak documents agreed to with witnesses who trial, disclosed, testimony and state- adduced at the previously Phil and on “The Donahue by officials other trials ments made Show,” identify undisclosed items. stacks of defendant was able end, approximately one- was forced to turn over In the State However, permit trial court refused to discov- items. hundred work-product only permitted disclo- ery alleged attorney into likely existed and that the defense could establish sure of items were material. to honor
Despite of the State’s obdurate refusal the revelation duties, prosecutors that the discovery ample evidence exists its example, the day information. For State this have withheld compare prints lifted from the requested that the FBI latent Obviously, of a “James Otis Howard.” murder scene with those person in the offense must be any inculpating information another defendant, yet exculpatory of no information James considered produced. Howard has been Otis many newly items were vital
Included within the disclosed belatedly released documents detailed pieces of information. The for the FBI and the FBI’s role as an informant McKinnon’s offenses; information related to investigation of him for federal Thompson suspect as a and his alibi investigation of Steve per- applications City; information and search warrant Atlantic Kraushaar; and documents taining to and information Sarann Although tape.” all of these to the seizure of the “suicide related material, only here potentially Brady I will detail are documents suicide-tape claim. discovery violations related to against defendant was the so-called key piece A of trial evidence linking him to tape,” in which he made several statements “suicide *206 expressing that he would be indicted and his belief McKinnon attempted into a motel and his murder. Defendant cheeked wife’s attorney. placed tape in an tape mail to his He the the which, envelope envelope, he that the was on the front of wrote only my police, upon be event of death.” The opened “[t]o the motel, lobby at the discovering that defendant was the entered having containing tape envelope the without ob- and seized the a tained warrant. hearing tape, the suppression
At for the main issue was the it into closed in the motel placed whether defendant had a mailbox tray. tape lobby open he it on an mail If the or whether had left tray, police have it exposed then the could seized under was on exception requirement, they plain-view the to the warrant because printed envelope. the Howev would seen the have statement mailbox, er, plain-view exception if it the was closed then in. apply and seizure would be invalid. State v. would not the Cf. (1990) (“The 203, Hempele, critical 120 N.J. A.2d plain from conceals its contents issue whether container view.”). receptacle key thus the issue on the
The of the mail was nature Mohel, Investigator hearing, suppress. motion At the Hahn, manager, testified that mail Zillah the front desk open box that sat on the counter. The depository had been an suppression into open even evidence box was admitted Rokoczy, night hearing. Paul the motel’s testifying Also only manager. mailbox had been a closed box He stated that testimony Rokoczy’s. with Mr. with a slot. Defendant’s conformed court, however, the mail had receptacle concluded that trial tray. open been August hearings, uncovered an
During the PCR defense counsel by Investigator Murphy that de- written 1985 memorandum by The memoran- made the State’s witnesses. tailed statements supported position during strongly the defense’s question dum flatly hearing the statements of suppression contradicted investigators prosecution prepared It was witnesses. prior suppression year question but one after the incident *207 346 it,
hearing. they spoken In the officers stated that had with Hahn, currently being had stated that the mailbox used who top hindged in the motel was a closed box with “a slot the and a door in the bottom to remove the mail.” Prior to the [sic] box, tray. the motel used a Hahn could not installation of the had tray being recall the date when the had ceased used and the new operation. flatly gone mailbox had into This contradicted Hahn’s testimony suppression hearing at the at which she had stated that tray night question. the had used on the been investigators spoken the The memorandum also stated that had motel, Tajfel. Tajfel with the Mr. also had stated owner using previously that the hotel was then a closed box but had used open tray. knowledge He “stated that to the best of his the present approximately mailbox had in use for 2 [closed] been information, years.” investigators spoke To confirm with person actually had He who built the closed box. stated that years year he had built it two earlier and one before the date in question.
Thus, only consistently professed witnesses who that the receptacle open tray mail anwas were the two officers who had contrast, tape. By every employee seized the defendant and stated, initially, receptacle the hotel at had least closed. The PCR court nevertheless concluded that the violation was not material. violations, litany discovery only unending
It is with this a detailed, very I few of which have mentioned or that we must right evaluate defendant’s PCR claims and defendant’s to review the State’s files.
B. matter, I preliminary As a take issue with the Court’s reformu materiality discovery lation of the test for constitutional violations capital require probability cases there be “reasonable that, defense, had evidence been disclosed to the the result of 156, would have been different.” Ante at proceeding 690 A.2d
347
682, 105
667,
(quoting
Bagley,
States v.
473
S.Ct.
at 34
United
U.S.
(1985)).
I,
3383,
481,
3375,
In Marshall
because
87 L.Ed.2d
494
information,
specifically
requested
had
withheld
applied
v.
the lower standard enunciated United States
Court
2392, 2398,
342,
49 L.Ed.2d
Agurs,
S.Ct.
U.S.
(1976),
discovery
violation would be deemed revers
namely, that
“might have affected the outcome of the
ible error if the violation
I,
199-200,
A
85.
supra,
586 .2d
trial.” Marshall
123 N.J.
*208
analysis.
equated
harmless-error
Id. at
Court
this standard with
Carter,
86, 114,
200,
(citing
91
449
v.
N.J.
A.2d
Recently, Knight, 145 implicitly in v. N.J. 678 we held State (1996), probability” Bagley A .2d642 that the “reasonable standard 247, discovery at A .2d 642. applied to violations. Id. Of all course, case, justifying simplifica thus its Knight capital was not However, analysis. engaged in a materiality the Court tion of rejection I’s hypothetical relevance of Marshall discussion Bagley of the standard: recognition [I] [i.e., with that that the To the extent that Marshall is inconsistent
Bagley [I] be and thus Marshall understood may standard is simpler preferable], in that case had not established the to reflect our view that demanding the less standard violation even under imposed materiality Brady Agurs in situations. by specific-request [Ibid.] governing rule dictum into broad The Court now converts this noncapital cases. Ante materiality inquiries capital in all both 154-156, A.2d at 33-34. at
However,
Knight’s hypothetical
of Marshall
despite
treatment
I,
Bagley
nothing
Knight
higher
standard
dictates that
because,
capital
I
Knight, this is a
case.
apply in
unlike
this case
capital
that because
cases
have
on numerous occasions
stressed
matters,
qualitatively
from other criminal
courts
are
different
capital
heightened procedural protections.
must afford
defendants
II,
(Handler,
E.g.,
supra,
DiFrisco
The Court errs almost capital insurmountable standard to the context. a life When is at stake, truly prosecutorial we should be hesitant to condone with- holding potentially exculpatory of relevant and evidence.
C.
applying materiality
high,
In addition to
standard that is too
the
the effect of
Court underestimates
the nondisclosure of at
pieces
disregards
least two
of evidence and
the cumulative effect
discovery
of all of the
violations. Both Justice
and I
O’Hern
have
already
opportunity
impact
had the
to discuss the
of the Kraush
I,
immunity agreement,
supra,
aar
see Marshall
349 immunity agreement As as the failure to disclose the serious tape” the failure to disclose the “suicide memorandum. The was engage logical gymnastics concluding Court is forced to avoid memorandum, flagrantly the which contradicts State’s mailbox, positions regarding type of was witnesses and not today applies extra-high material. The Court a new standard of finding nonmateriality, according deference to the PCR court’s of “special weight” are ... faced an unusual “[w]e it because with opportunity finder has original in which the of fact situation information____” materiality Ante at rule on the of the withheld 186-187, A .2dat 690 49-50. disagree “special” to the strongly
I
with the Court’s
deference
First,
finding.
fact that the PCR court
court’s factual
PCR
suppression
issue is
cause
same court that decided
deference;
contrary, may
deference
it
merit less
for extra
may
necessary to make a
perspective
lack the
because the court
Here,
erroneously
reliably objective
the trial court
decision.
view
before trial
request to
the memorandum
denied the defense
regarding this
the defense witnesses
subsequently
discredited
very subject.
trial
now maintains that credible evidence
court
every
case
not have
undermining
aspect of
State’s
would
type
That
not the
of
legal
determination is
altered its
conclusion.
special
the trial
fact-finding that warrants such
deference because
partially
solely
materiality, a
finding goes
to the issue of
court’s
capable
legal
quite
evaluating.
are
See Carter v.
issue that we
(3d Cir.1987)
1299,
(“Materiality
Rafferty,
F.2d
1306
826
fact”),
Brady
question of law
cert.
a mixed
evidence under
(1988);
denied,
1011,
711,
596,
(same),
215,
112
598
cert.
502 U.S.
S.Ct.
Buchanan,
(1991);
Second,
standard,
any
finding
under
the PCR court’s
standard,
materiality
clearly erroneous. The Court’s new
mistak
case,
enly
capital
applied
probabil
this
is whether a “reasonable
ity”
discovery
existed that the
violation affected the
result
155-156,
proceeding.
Ante
It baffles me how the
court
PCR
could have deemed this
violation not material under
this standard. The information
directly
testimony
memorandum
contradicted the
of the motel
employees regarding
receptacle.
impeachment
the mail
Because
clearly
rule,
676,
purview
Brady
evidence is
within the
of the
id. at
490;
States,
Giglio
the memorandum did not it is that, memorandum, production true with the the State could presented testimony have other uncontradicted relevant to the plain-view inquiry namely, testimony tape would not — slot, requiring have fit into the mail closed thus defendant to have placed top it on of the box—this evidence was indirect and not (and nearly important unimpeached, as as the State’s direct
351 violation) discovery testimony only recep- that the because Moreover, tray. reliance unchal- had been the Court’s tacle contested, severely yet hotly warped when lenged, evidence is placed conjunction sharp the limitations on hear- with viewed hearings. The fact-findings during the PCR PCR court’s ings and the it have the evidence because finding that still would admitted simply the decision is not have” affected memorandum “could contrary reality and should be reversed. materiality Brady of the individual violations
Apart from the described, discovery aggregate the violations that I have State’s that defendant denied due lead to the ultimate conclusion Supreme the Court process and a trial. As United States fair us, recently reminded obligation v. 373 U.S. Maryland, established rule that the state’s under Brady (1963), to the 215 to disclose evidence favorable 1194, 83 S.Ct. 10 L.Ed.2& 83, of evidence suppressed turns on cumulative effect all such defense, by gauging government, for that effect and ... remains responsible prosecutor bring regardless evidence favorable prosecu- failure any by police withheld ... net effect of the evidence the State [Where] tor’s attention. its would have a different produced a reasonable that disclosure raises probability to a new trial. [the is entitled
result, petitioner] 115 131 L.Ed.2d 498 1555, 1560, 490, v. S.Ct. 419,-, 514 U.S. Whitley, [Kyles (1995).] 13, Landano, n. A .2d supra, N.J.Super, 271 at 36 637 also See (“[Ijnstances in this suppression case must prosecutorial 1270 Although majority collectively.”). agree I with be viewed numerous, “[tjhe assort assessing the cumulative effect task 267, 90, I daunting,” 690 A.2d at of error ... ante at claims ed discovery violations agree the State’s multitudinous cannot affecting probability of the outcome. create a reasonable did not every aspect of the discovery violations went to The State’s Kraushaar —were able Only case. two witnesses —McKinnon spoken murdering his wife. testify had about respect discovery obligations Yet, fulfill its with the State failed to permit- would have undisclosed documents of them. The to both only by showing he had impeach McKinnon not the defense to ted cooperation, a fact exchange his received financial benefits 352 trial, they permitted also would have the defense
he denied at
but
him
role as an informant for the FBI and
to cross-examine
on his
3(c)(6),(8);
investigation.
R.
target
as the
of a federal
See
3:13—
(1994)
Florez,
592-94,
A.2d 1040
State v.
134 N.J.
govern
that material
was a
(requiring disclosure of fact
witness
(1976)
informant);
Spano,
ment
State v.
69 N.J.
353 A.2d
witnesses);
history
(requiring disclosure of criminal
of material
(1967)
440, 447-48,
Taylor,
(requiring
231A.2d 212
State v.
N.J.
*212
witness);
promise
leniency
government
disclosure of
State v.
Satkin,
306,
N.J.Super.
(App.Div.1974) (requir
A.2d
127
317
379
witness). Moreover, by
ing
paid
to material
disclosure monies
failing
regarding
suspects
information
other
who had
disclose
alibis,
precluded
investigated but found to have
been
State
impeaching
inculpat
defense from
McKinnon with his statements
Landano,
3:13-3(c)(6), (7);
supra,
ing those individuals. See R.
1,
Brady
N.J.Super.
(finding
271
The State’s violations
theory
The defense asserted
defen
defense
of the case.
flat tire and that he too
pulled
car over because of a
dant had
his
knowledge
theory,
Despite
of this
assaulted.
the State’s
had been
emergency
report,
room
turn over the
prosecutors did not
persons
whom the
report, and the names
medical examiner’s
injuries.
R.
supported
assertion of
See
knew
State
(6).
(3),
Moreover,
3(c)(1),
comply
with its
the State failed
3:13—
experts
whom it called
discovery obligations regarding all of
firearms,
ballistics,
experts.
R.
pathology
See
including the
410-12,
3:13(c)(9); Zola,
(provid
supra, 112
at
In
discovery rules do
into an ambush. Our broad
the trial
converted
338,
Ramseur, supra,
A more
Brady
impugn
go
imagine.
the motives of the prosecution
so far as
One need
just
appalling
attributed to an
for it can
as
be
conclusion,
easily
to reach that
order
of the ... various members
communicative skills on the part
lack of basic
originate
motives,
in unworthy
the circumstances
team. But whether
prosecution
bungling,
fact remains that
or
dullness
comprehension,
colossal
plain
misunderstandings
—
to be
indeed
thus created have proven
costly
(footnote
(Clifford,
dissenting)
J.,
D. should concluding that the Court join I with Justice O’Hern blunt, the Ocean entire file. To be to disclose its order the State *214 conclusively it is not to proven has County Prosecutor’s Office
355 diligence or due to willful- of lack of because be trusted —either relevant, produce discovery rules and to by the ness —to abide track the State’s for the defense. Given exculpatory material in case, only guess else lies its file. can what in this we record Court, must, displaying an exhausted And, guess we since the trial court remand the case to inexplicably refuses to patience, allowing stamp approval findings, thereby its proper factual sentence. placed to be on this death surely arguing in that to allow defen correct is
Justice O’Hern identify being that he can as only to those documents access dant Ante Kafkaesque feel to it. possession has a certain in the State’s (O’Hern, J., concurring part 292, at 103 at 690 A.2d apt especially where dissenting part). That observation exculpatory producing faith in displayed such bad has State exculpato requested, let alone specifically that defendant material not request about which he could ry material that he did know. not have a federal recognize that the State does
Although I
defendant,
its entire file to
obligation to turn over
constitutional
3380,
675,
L.Ed.2d at
at
supra,
at
105 S.Ct.
Bagley,
473 U.S.
2401,
111,
V death sentence. Robert Marshall’s reaffirms Today the Court phase, during penalty failings despite of counsel It does so *215 jury, abrogation of death-qualified and the State’s the absence of obligations. Many this case as discovery its other errors infected well; scrutiny much than that to which that warrant closer errors matter, Court, subjected I for have them. this or that remarked, previously example, “[pjrosecutorial I have rampant throughout of Mar the trial” this case. misconduct was (Handler, J., I, 586 A .2d dissent supra, shall 123 N.J. at disregard our ing). learned of the Even before we State’s manipulation penalty phase, I discovery and of the rules its pattern of “[t]he maintained that record calculation reveal[ed] part prosecutor underscore^] offensiveness rings even now that his Ibid. That observation truer conduct.” though, complete. Interestingly, the record is the record is more totally apparently being complete far as the failed to from State comply preserve court to and the trial 'court with a order evidence hearings Despite claims. those conducting erred in not full on the limitations, shortcomings examples misconduct Those abound. in post-conviction light of their must reconsidered on review be impact prejudicial counsel’s ineffective influence on defense representations. moreover, failings, counsel’s were limited to
Defense penalty Specifically, adequately prepare to phase. he failed to Kraushaar; investigate he failed cross-examine McKinnon and to defense; corroborating or he erred introduce evidence hiring despite alleged retaining investigator as an his and Kolins belonging Jersey tampering with a to New involvement vehicle attempt hinder law authorities their investi- enforcement witness; credibility gation despite as a he and his rather dubious suppression prepare failed interview witnesses for the tape hearing; argue he failed to suicide a confidential communication; protected attorney-client he failed to demand discovery compliance obligations noncompli- with the State’s when obvious; experts failed and utilize ance had become he to consult witnesses; and he failed to advise to offer rebuttal to the State’s early retention of defense witnesses not to disclose defendant’s failings to the that a Those lend credence conclusion counsel. produce hearing likely on defense counsel’s ineffectiveness post-conviction justifying relief. evidence anyone Although deeply executing State I am disturbed constitutionally capital-punishment the current deficient under statute, anguished by I particularly am the Court’s stubborn and push Robert Marshall into the execution intractable effort *216 I post-conviction jurisprudence. relief chamber at the cost our majority’s appeal that I stunned remarked in the direct many conclusion that the acknowl recognition of so errors and its errors, cumulatively, did edged separately or not amount (Handler, J., A.2d grounds for reversal. Id. has dissenting). I am Court now dumbfounded temerity capital prosecution passes muster. state this —a — perfect, it Concededly, but cannot be reduced a trial need not be majority identified at least a dozen errors to shambles. Many during appeal. more errors have now been direct virtually every part of acknowledged, this errors that blanket capital trial. join that Robert
I cannot and will this Court’s conclusion lawfully constitutionally be executed. can Marshall POLLOCK, GARIBALDI, STEIN For affirmance —Justices and COLEMAN —4. HANDLER and
For and remandment —Justices reversal O’HERN —2. and Petracca did not take notes Churchill do interrogating McKinnon and that such notes therefore while exist, wholly claim as without merit. not we dismiss defendant’s suggestion reject defendant’s that trial counsel was We likewise interrogation seeking production original remiss
Notes
notes request to what prejudiced a failure of counsel not have been did not exist. remaining discovery subcatego in this claims Defendant’s investigation co-conspirators and of other ry relate to the State’s failed alleges that the suspected co-conspirators. Defendant State Larry records co-defendant the Louisiana criminal of to disclose brother, to FBI Thompson’s Thompson; request its Steven and Thompson of compare fingerprints to Steven October 1984 lifted Mar fingerprints with from one Otis Howard latent James possession in car; in the and information State’s shall’s other suspect Otis causing of James it to involvement October 1984 claims murder. The essence of those Howard in the Marshall allegedly suppressed casting doubt on information that State triggerman, testimony Larry Thompson McKinnon’s trial, he possessed had such information and if defendant Thompson’s demonstrated McKinnon lied about could have murder, have cast doubt in the which would involvement de testimony against determine that Marshall. We McKinnon’s jury’s acquittal patently are without merit. fendant’s claims accept account of that it did not McKinnon’s Thompson of reveals however, disbelief, in the That Thompson’s involvement murder. reject of jury to McKinnon’s account apparently did lead impeach We are satisfied that further Marshall’s involvement. subject Thompson’s involvement ment of McKinnon on the trial. immaterial the outcome of would have been ineffective assistance defendant’s claims of We likewise dismiss for severance relating failure move of counsel to counsel’s Larry Thompson,' his trial from that co-defendant defendant’s discovery concerning Steven request from the State failure full investigation own into Steven Thompson, his failure to conduct his concerning Thompson, his evidence Steven failure elicit Jersey. regard presence in New as meritless Thompson’s We sever- to move for speculation that counsel’s failure Thomp- Larry to interfere with on a desire not ance was based argu- strategy. also find meritless defendant’s son’s defense We have facilitated cross-examination ment that severance would with, concerning relationship his other law-enforcement McKinnon Thompson. agencies his information about Steven suppression of the claims that the Defendant also State’s complete Larry Thompson’s alibi report of its interviews with critical defense. deprived defendant of information to his witnesses
cations of
notes
its
and
photographs
experts
which its
and literature on
relied. This
subeategory also includes claims of
of coun-
ineffective assistance
arising from trial
failure to
sel
counsel’s
demand
the State
produce adequate expert reports,
pro-
his
and
failure to demand
notes,
laboratory
qualifications
experts,
photo-
duction of
of the
or
they
argues
which
graphs and literature on
relied. Defendant
challenge
experts’ qualifications,
failed to
trial counsel
admissibility
testimony on the
challenge the
of their
failed
Moreover,
inadequate.
experts’ reports were
ground that
delay
engaging
a tire
challenges trial counsel’s
also
remaining
arrange to have the car and the
expert, and failure to
problems
of the mechanical
to ascertain the source
tires examined
stop
Oyster
car at the
allegedly prompted defendant to
on counsel’s failure to
Defendant also relies
Picnic Area.
Creek
concerning
right
any
rear tire based
attempt to bar
evidence
tire,
argument
portion
of the
expert’s excision of
on the State
rejected
proffered in defendant’s
had been
that defendant asserts
appeal
direct
brief.
rejected
length
at
defen
appeal
discussed
On direct
we
right rear
part
excision of
that the State’s
dant’s contention
from the inside surface of
photograph the slit
in order to
tire
right of access to
constitutional
had violated defendant’s
tire
105-10,
I,
notes
not
certain
and
in his
convince
court
investigating
attempt
officers
the trial
that
7
custody
September
in
at the time of the
defendant had been
However,
point
questioning.
anything
unable to
defendant is
conceivably
any
report
have had
police
the notes or
that
could
impact on
claims
the Miranda determination. Defendant’s
are
thus without merit.
Lastly,
hearing
asserts
at the
defendant
that
Miranda
by claiming
prosecutor
the trial
the statements
deceived
court
that
by
police
made
defendant at the
barracks would not be offered
against
trial.
reviewed
defendant at
have
the record of
We
hearing
Miranda
and find
be without
defendant’s assertion to
hearing
support. The fact
trial court
factual
that the
held
by
at the
determine whether
statements made
claim
was
barracks were admissible belies the
that
that court
sought
unaware
to admit
into
that
State
those statements
evidence at trial.
I.
THE IM-
CLAIMS RELATING TO THE INTEGRITY OF
PANELED JURY
H.3-9)
(B.19, B.36, B.231, C.l-74, F.3,
allege
category
The claims in this
defendant was
that
right
impartial
jury
his
to a fair
a result of
denied
and
as
by
of counsel and erroneous decisions made
ineffective assistance
adjudi
during voir
Four of
claims were
the trial court
dire.
appeal:
direct
that
transfer
venue to
cated on defendant’s
pretrial
improper
publicity
County
Atlantic
because
that
85;
I,
76-79,
supra,
county,
notes phase prior he his interview on Similarly, allegations the in the did not reflect those discussions. in describing scope investigation which Ruffin affidavit ordinarily suggests specialists engage that trial coun mitigation normally under preparation was less than penalty-phase sel’s counsel, although a experienced note that Ruffin is by taken we capital specialist, lawyer experienced in cases. not a mitigation However, PCR infor- in the record discloses no documentation adequate investigation have revealed that an would mation likely substantially the reasonably to affect have been would jury’s penalty phase. in Ruffin’s unsubstantiated deliberations plainly inadequate. allegation “exists” is that such information allege hindsight, PCR counsel does not Even benefit of with the facts, information, specific possessing or evidence existence a having had substantial effect on possibility reasonable jury’s penalty phase. deliberation of which defendant was convicted of the crime The nature types mitigation evidence the likelihood diminishes impact capital positive have had a commonly cases would used specific among the instances of ineffec- jury. example, on the For to adduce by are trial counsel’s failure tiveness relied him, family testimony sister and son that his loved of defendant’s family. Notwithstanding and that his execution would harm the testimony trial counsel’s that defendant refused to have his sons testify penalty phase, relying risk of on harm to the obvious jury family mitigating factor is that the would as guilt-phase that contention because of its have been offended already grievous determination that defendant had inflicted harm family by hiring on the McKinnon to murder his wife and the ineffectiveness, specific mother of his three sons. claims of Other address, which we are about to either suffer from similar flaws or unlikely simply substantially jury’s were to have affected deliberations. penalty The claims of ineffective assistance of counsel in the fairly only phase can be assessed in the context of the entire trial
notes detailed fact, did not even In counsel had occurred. such conversation and the nature explained to defendant that he had maintain they evidence phase types of penalty and what purpose of the having importance of explain the Nor did counsel could submit. testimony the effect of that testify and what sons they be, that “would have although counsel admitted likely would phase.” Important- penalty at the very compelling witnesses been reluctant to though counsel knew defendant ly, defense even penalty phase, nowhere testify in the on his behalf have his sons mitigation specialist thought have a appear counsel to it that does the sons. family testify in lieu of member or other counsel and meeting between defense of the brief At the end ready to defendant, that he was informed the court counsel client, my in explained to “I’ve announced that proceed and Defendant told the at the time. not that defendant was competent indicates fully had medical yet he had never before any problems, that medical personnel fainting before trial. hearing, a during shortly defendant recounted episode taking telling he was no him the doctor Moreover, defendant misinformed by (an antifungal on Fulvicin that he was records show medication; his prison foot). not the doctor he did addition, defendant told In medication for athlete’s allergic is to allergies, show defendant other medical records but have any what counsel was he understood however, conceded that Defendant, lactose. alert defendant saying testified that him, appeared the Sheriff's officers and and normal. adopt like essence, procedure I and is a that would this understanding he is in stage. my it’s follow at this And aware that agreement procedure.” The court was not with this only a hospital few’ minutes had returned from the explore understood The court did not whether defendant earlier. phase. rights waiving by stipulated penalty this he was incredibly penalty The short. entire proceeding itself was closing opening court’s remarks and phase, including the trial instructions, only twenty only minutes and fills seventeen lasted arguments pages. striking, pages the four transcript Most are In sentences devoted to defense counsel. the three advanced factor, only made no-significant-criminal-history mitigating he having argument, have a “credit” for one that defendant should up law-abiding point a life until the that he had murdered his lived wife: legislative to the of the death believe, The reason I when look why you history mitigating a is factor, when it into that that Jersey came New penalty clearly rightly, I think that if live a law- if and because, will, feel, quite you you people abiding in time be in a where life, you you may at some point may position allow if a credit because of the draw, will, have to ask you you maybe people a who have not led law- fact that led such life. There are obviously you’ve people jury abiding been front of a they’ve lives have been situations where jury jury this offense, has them a and the will hear that convicted capital juvenile law-abiding, has had a has but, fact, record, has led life, person lived life that in all had a of other offenses for the most has and, part, record and forms to what our at least society requires. never conformed ways, shapes, agreed law-abiding In it’s that Rob Marshall has led a this case been particular