State v. Marshall

586 A.2d PLAINTIFF-RESPONDENT, JERSEY, v. STATE OF NEW MARSHALL, O. DEFENDANT-APPELLANT. ROBERT Argued January January 1991. 1990 Decided N.J.Super. See also 199 489 A.2d 1235. Defender, DeCastro, Deputy Assistant Public Bernadette Borman, Defend- Deputy First Assistant Public and Judith L. Smith, Jr., (Thomas er, argued appellant for the cause S. Jersey, attorney; Bernadette Acting Public Defender New Borman, counsel; Bernadette L. DeCastro Judith Smith, Jr., DeCastro, Borman, Deputy L. James K. Judith Defender, Warshawsky, Wyk, Public Daniel A. Claudia Van Friedman, Deputy Seelenfreund, Assistant Mark H. Robert Counsel, Defenders, Rosano, Designated Lucy Public M. briefs). on the General, Attorney argued the cause Flanagan, Deputy

Janet (.Robert Attorney of New respondent Tufo, General J. Del Jersey, attorney).

TABLE OF CONTENTS Page Introduction..............................................27 I. Facts.....................................................28 II. Pretrial Motions..........................................62 A. Letters Seized Best Western Mailbox...............62 B. Venue ...............................................73 Jury-Selection III. Issues.....................................79 Prospective Jurors Not Excused for Cause......80

A. Three B. of Juror Neil Marzano...................87 Qualification Death C. Qualification...................................89 Constitutionality County Jury-Selection D. of Atlantic Pro- cedures ..............................................98 26

Page IV. Guilt-Phase Issues........................................98 Photographs..........................................98 A. Hearsay Admissibility B. of of Statements Robert Cumber 100 Cross-Examination of C. McKinnon .................... 105 Expert’s D. of Examination Tire ....................... 105 Hearsay Admissibility of E. Victim’s 110 Statements........ Alleged Infringements Privilege F. on Defendant’s Against Self-Incrimination.......................... 118 Concerning Questioning G. Prosecutorial Re- Defendant’s tention of 121 Counsel.................................. Argument Questioning Challenging H. Defendant’s Professed Love For His Deceased Wife............. 126 Testimony Henry I. Exclusion of Tamburin......... 129 Testimony J. Preclusion of Portion of of Defendant’s Son John Marshall...................................... 130 Admissibility Testimony Discrediting of K. Defense Wit- Rakoczy....................................... ness 131 L. Denial of Defendant’s Motion for Mistrial Based on Discovery State’s Violations......................... 133 M. Dilution of Burden State’s of 134 Proof................. Sufficiency N. of 136 Evidence......................... Sentencing-Phase V. 136 Issues................................ Aggravating Duplicating A. Factor Element of Crime ... 136 Aggravating B. Instructions on 138 Factor................. Mitigating C. Absence of Evidence..................... 140 Adequacy Sentencing-Phase D. 141 Instructions.......... Presumption Against Imposition Penalty E. of Death ... 152 VI. Other Issues 152 ........................................... A. Prosecutorial Misconduct............................ 152 B. Ineffective Assistance of Constitutionality 164 Counsel................... Capital C. Punishment 169 Act.......... D. Cumulative Error................................... 169 Proportionality E. Review.............................. 170 Violation____ Brady Hearing Alleged VII. Remand to Consider 171 Introduction............................................ A. 171 Disqualification Hearing Prosecutor’s Office from 176 Discovery............................. B. Limitation of 178 C. Limitation Regarding of Cross-Examination 185 Willfulness Finding

D. of Nonwillfulness........................... 193 Materiality E. Nondisclosure........................ F. The McKinnon Letters.............................. Conclusion.................................................... opinion by Court was delivered

STEIN, J.

Defendant, Marshall, Robert was tried and convicted of con- spiracy to commit the Marshall, murder of Maria N.J.S.A. 2C:ll-3a(l) (2), 2C:5-2 and or and of the murder of Maria accomplice Marshall as an procured who the commission of the murder by payment promise or payment money, N.J.S.A. 2C:ll-3a(l) (2). 2C:2-6 and separate or After a sentencing proceeding conviction, on the murder 2C:ll-3c(l), see N.J.S.A. death, court sentenced defendant to required by as jury’s merged verdict. It the conspiracy conviction with the capital conviction for murder. appeals Defendant right as of this Court. N.J.S.A. 2C:ll-3e. We affirm defendant’s convic- tions and the sentence of death. together

Defendant was tried with Larry co-defendant Thompson, charged who was conspiracy also with to commit the Marshall, murder of Maria 2C:ll-3a(l) N.J.S.A. 2C:5-2 and or (2), purposeful and with the knowing or murder of Maria by Marshall his 2C:ll-3a(l) own (2); conduct. N.J.S.A. or 2C:ll-3c. The acquitted Thompson charges. of both Cumber, Co-defendant charged Robert conspiracy Marshall, murder Maria 2C:ll-3a(l) (2), N.J.S.A. 2C:5-2 and or purposely and with knowingly causing or the death of Maria Marshall as accomplice, an 2C:ll-3a(l) 2C:2-6 and N.J.S.A. (2), separately, counts, was tried convicted on both and sen- thirty-years imprisonment tenced to eligibility without pa- role.

Pursuant plea agreement, to a Billy Wayne co-defendant McKinnon, indicted for the Cumber, same pled offenses as guilty only conspiracy murder, to commit and was sentenced five-years imprisonment. The details of plea McKinnon’s agreement are described elsewhere in opinion. this Infra 41, 586 A .2d at 104.

I.

Facts presented summarizing proofs Before at trial the State Thompson, provide an and co-defendants Marshall and we over- context for view of the evidence as a the discussion that weighty against follows. The State’s case defendant was compelling. Many proofs indisputable, of the State’s were Thus, although significance sharply their was contested. proved acknowledged long-standing and State Marshall his ex- relationship Kraushaar, tramarital with which had de- Sarann veloped contemplated leaving the extent that both their spouses together. respective living and had Marshall taken steps renting a preliminary toward house in Beach Haven West purpose. for that It was Marshall also uncontested that had debt, $128,000 including home-equity substantial a loan and $40,000. proofs short-term debt in bank excess The State’s suggested connection between Marshall’s indebtedness and large of life he concededly amount insurance maintained on decedent, in excess of one-million dollars at the time of her policies acquired death. of the had been within Several months homicide, of the and and Marshall decedent were examined for policy morning an preceding additional Maria’s death. Marshall testified that the amount of insurance maintained on himself and decedent was commensurate with sound insurance practice realistically reflected needs of the survivor in the event of the death of either. testimony Billy Wayne of co-defendant McKinnon was incriminating against

the most evidence Marshall. McKinnon was a former sheriff’s officer from was Louisiana who referred Cumber, to Marshall co-defendant whom Marshall had met party May at Jersey in New in 1984. Marshall conceded that wife, investigate he had hired McKinnon to his order to determine she his relationship whether knew of with Kraushaar attempt and to to account for several thousand dollars casino winnings given Marshall had Maria. Marshall admitted that he had met with McKinnon City, at least twice Atlantic last night on the of the occurring Harrah’s casino meeting at paid McKinnon acknowledged that he also Marshall murder. services, receiving any $6,300 investigative without for his made in payment of was $800 that the last product, and work night homicide. of the at Harrah’s on cash investigate not to Marshall hired him testified that McKinnon paid had him He testified that Marshall to kill her. his wife but murder, $20,000 $22,000 prior to the that an additional him in Mar- available for $15,000 supposed to have been was $50,000 homicide, and that scene of the pockets shall’s proceeds. to him out of the insurance paid more to be was had Oyster Creek Picnic Area testified that the McKinnon as the crime scene. Marshall’s concurrence selected with been on the feign car trouble By prearrangement, Marshall was area on City pull picnic into the from Atlantic way home wrong his car. checking pretext of to see what McKinnon, co-defendant dropped he had off According to arrived and picnic the Marshalls Thompson at the area before just picnic plaza to the toll south then had driven back prearranged plan that the to await their car. He testified area seriously on the head without Thompson for to hit Marshall McKinnon him, shoot and kill his wife. injuring and then to him at the toll pass car testified that he had seen the Marshalls’ minutes, and, proceeded he had into plaza delaying after a few there, lying on the got he Marshall was picnic area. When got Thompson shot. into ground and Mrs. Marshall had been and cash pocketbook Maria Marshall’s McKinnon’s car with got out of the car in order to pocket, and then from Marshall’s support car to his right rear tire on Marshall’s slash the picnic explanation having driven into the area. anticipated picnic onto the southbound lane McKinnon drove out of the area Parkway, by and was observed a motorist of the Garden State noted the Parkway McKinnon’s car and on the who described picnic area. Marshall high speed rate of at which it left the identify perpetrators, but testified that he was unable to tampered hypothesized they had with his tire and followed City his Atlantic in order to car from rob them.

Thus, indisputably evidence at trial established that McKinnon, paid had who been hired and Marshall and had murder, night met with Marshall at Harrah’s of the had at present participated been the crime scene and had in the murder of Marshall’s wife.

A. The Case State’s Shortly September 1:00 .Troopers after a.m. on State Joseph patrolling David Mathis Randik were the Garden Parkway in vicinity Barnegat plaza. State They toll directing patrol heard a radio transmission another car to proceed Oyster they to the Creek Picnic Area. Because were picnic car, closer to patrol area than the other Mathis and responded Randik to the They picnic transmission. entered the area from the To ramp. top northbound their left of the ramp vehicles, were two defendant’s two-door Cadillac and a wagon occupants white station whose stopped had to render assistance after defendant had waved them on the down Park- way. facing southbound, Defendant’s car was about 125 feet 1,000-foot from ramp the crest of the leading picnic into the parked area. beginning easterly leg It was at the of the U-shaped paved loop perimeter that formed the of the wooded picnic area. The was running, headlights Cadillac’s motor its on, open. were picnic dark, and both doors were area was and thick underbrush its visibility obstructed from the Park- way. informed Trooper

Defendant Mathis that his wife had been required shot and an inquired ambulance. Mathis about the weapon to shoot used Mrs. Marshall. Defendant stated that they gun had robbed been and that the was hot there. Mathis observed that injured defendant’s forehead was his and cheeks and were forehead bloodstained. vehicle, saw Maria Marshall

Approaching defendant’s Mathis seat, her, the front both arms under and lying face down across pulse for steering Mathis checked a her head near the wheel. breathing. appear The did not to be but found none. victim ambulance, Trooper to call for an Mathis told Randik examiner, Major-Crime and the Police unit. medical State scene, including police arrived at the Other officers soon Troopers the initial State Police radio Sink and Loblein to whom directed, State Detectives John transmission had been Police Joo, George Detective-Sergeants Richard Petracea and and McHugh Liber, photographed the crime scene. and Charles who testified trial details about The officers who at recalled various Specifically, they crime found Marshall’s wallet on scene. right rear ground passenger door. The tire was near There upper and clean one-inch cut on sidewall. flat had a right and puddle ground a on the the rear was blood compartment and trunk of Marshall’s Cadillac glove car. and orderly The inside car was did not were closed. of the appear to The officers found two shell have been disturbed. passenger of the casings, lodged one the crease front seat passenger’s and seats. A and the other between the driver’s gold-colored earring was driver’s seat. The victim was on the engagement ring wearing including a jewelry, other diamond watch, band, pearl ring, gold-colored gold a wedding and necklace, purse gold and two bracelets. The victim’s missing.

Troopers and Petracea and Joo Mathis Sink and Detectives police crime scene. The then took interviewed defendant Community Hospital he was treat- Marshall to Memorial where He then returned home. Detectives Petracea ed released. Joo, Investigator Murphy together Edward Office, County Prosecutor’s arrived at defendant’s home Ocean interrogation, proceed- after first at about 5:00 a.m. further ing hospital they learned where that Marshall had been discharged. questioning approximately After defendant for home, thirty his the officers drove Marshall to the minutes at State Police Bass River questioning, barracks additional Investigator conducted Detective Petracca and Murphy. The officers returned Marshall to his home morning. later that

Except concerning for variations when he first a noticed car, problem his to police Marshall’s statements the offi- interrogated who morning substantially cers him that were He he consistent. stated that and his at wife arrived Meadows Restaurant Harrah’s Marina Casino at about 8:45 p.'m. They they had an 8:30 reservation. After played dinner blackjack separate paid at tables. Marshall then off some they p.m., markers to the casino. When left at 11:45 he about approximately had pocket two thousand dollars in his and Mrs. pocketbook. Marshall had about in her They $500 traveled down Illinois Avenue to Route and then to the Garden State Parkway. Sink, to

According Trooper Marshall said he noticed vibra- just tion in his car he leaving Barnegat plaza as was toll Parkway, about picnic two miles south of the area. Accord- Joo, ing to Detective said Marshall that his car would weave or “shimmy” speeds hour, sixty sixty-five per miles and that he had first noticed that condition when he entered the Parkway from Route 30. Detective Petracca testified that when he scene, interviewed Marshall at the crime defendant said he had first problem detected a with his car one about mile picnic Petracca, south of the According area. again when he interviewed Marshall at his home later morning, defendant stated that he had problem noticed a with his car as soon as he Harrah’s, left and that the car’s tendency sway had in- creased the further he drove.

Marshall investigators told the that he knew the availabili- ty picnic area familiarity because his with the Park- way, and pulled that he into the area at about 12:30 a.m. to check his car. Mrs. asleep Marshall was with her head on his lap. car, out, He stopped got car, walked to the rear of the right observed that the rear tire was about half-flat. As he vehicle, tire, he aware that another looked at became sedan, picnic sedan had area. The pulled into dark-colored pas- approached then lights on. Marshall parked with its open Mrs. senger car asked Marshall door his glove from trunk, being accessible the trunk release lever He passenger stated that as he compartment on the side. wife, he struck on the head. away from his was turned regained he conscious- told the officers that when Defendant ness, on front Her lying found his wife motionless the seat. he spent casing on the bloody and there was a bullet back was hold and got He into the car and tried to her revive her. seat. shot, Parkway he she went onto the When he realized had been cars; two attempted flag stopped down. He the and to cars occupants wagon whose five second car was the white station police arrived. He asked the on the scene when the were police, and he returned to occupants of the cars to summon the occupants of the summoning police, his the the wife. After wagon picnic suggestion, At their returned to the area. station jacket. his with her started his car and covered wife Marshall arrived, realized that point police At the Marshall some before pocket. $2,000 missing pants his the from interrogation at Marshall’s In conducted the course homicide, acknowledged few after the defendant home a hours experienced problems marital and had that he and his wife had prob- seeing marriage He their begun counselor. attributed suspicions lems his of debt and his wife’s accumulation response questions, Mar- had unfaithful. In that he been “cheating” on wife denied he had his and shall denied that been during no course any in her murder. At time the involvement interrogations police did inform the officers he of Marshall’s investigate his and had met that he had hired McKinnon wife money evening him at Harrah’s. paid him and entry autopsy performed on the victim revealed two bullet An mid-portion of the victim’s back. The wounds wounds on the together,” apart. “very about three millimeters were close corresponding There on were two exit wounds the front of the chest, one near collar bone and the other on the left breast. wound, entry There was also an and exit a superfi- described as wound, grazing cial in the medial or inner area the left entry forearm. There was also an wound an exit without forearm, having lodged in the left bullet been wound in the protruding slightly through of the forearm rear and the skin. proximity entry Based close the two wounds in the back, pathologist performed autopsy expressed who opinion very that two shots had been fired and at succession range. pathologist protruding close removed the bullet during autopsy. from left He forearm identified it as bullet, a .45 caliber indicated that it had entered the back, chest, passed through lodged victim’s in the left bullet, following forearm. The other course, a similar had passed through the arm. The pathologist left determined that occurred, shooting lying when the the victim was down with her body. left arm under her The cause of death was “massive * * * hemorrhage due to laceration of lung the left and the artery main of the chest.” Hillman,

State Police Lieutenant Lorenzo expert, a ballistics arm, examined the bullet removed from the victim’s a second police by car, bullet found on the floor of Marshall’s and the discharged two shells. He testified that the .45 caliber auto- metal-jacketed matic bullets and the .45 caliber automatic Rem- ington Arms shells weapon, had been fired from the same an or weapon automatic semi-automatic with heavy recoil. George Hackman, employed a forensic chemist by the State Police, right examined the rear tire on defendant’s car. He testified that he had been to unable inflate the tire because air through leaked out in slit, the slit the sidewall. Other than the he had found no defects the tire or the rim. He testified that he had on markings discovered no the tire indicating or rim that the car had been driven while tire inwas deflated semi-deflated He opinion condition. stated that in his the slit had been made a knife a centerpoint with tapered that sharpened. Hackman downward, were edges of which both of tire around the slit portion he cut testified that had out a inner from the surface photograph slit order acknowledged that he had tire. On cross-examination Hackman possession in the of co-de- pocket-knives found examined two arrested, and that neither of Thompson when he was fendant slash tire. used to those knives had been Authority maintenance worker found Jersey Highway A New September light-tan pocketbook on the afternoon of the victim’s 7th, ramp. was a Exit exit There near 67 on southbound compartment in a of the victim’s wallet. bill one-hundred-dollar that about was $500 informed Detective Petracca Marshall missing pocketbook. from the investiga- began County investigators an extensive

State and 7th, September tion On the afternoon murder. County Prosecutor’s Investigator Mahoney Daniel Ocean driving as she stopped Kraushaar’s car Office Sarann Parkway. Mahoney took northbound the Garden State he prosecutor’s office where and Detective Kraushaar to the presence attorney. her in the her Petracca interviewed Marshall, acknowledged relationship stat- Kraushaar her they seen each ing begun it had June 1983 had regularly then. told the officers that Marshall other since She relationship, suspected their she that his wife because knew Regional High had of toll calls Pineland discovered records employed. that she where Kraushaar was She disclosed School plans together, and Marshall made to live and referred to had purpose. pending their a house for that Kraush- effort rent morning telephoned her aar that Marshall had stated death, during cried their inform her of Maria’s that he had conversation, leading briefly had the events to and recounted Kraushaar, Marshall’s account to by the murder. described As his statements to the her of the homicide was consistent with police.

According Investigator Mahoney’s report of the Kraushaar interrogation, police she a told conversation with Marshall which, discussing prior to in 1983 in finan- Christmas while his difficulties, cial Marshall had observed that “the insurance Maria would take care of debts” she his and that he “wished report wasn’t around.” The indicates that Marshall had asked anyone whether “of Kraushaar she knew who could take care it.” responded by identifying Kraushaar had an individual law,” had “in who been trouble with the had that she but stated “never wanted to be involved him he anything if could do like that to his wife.”

During the interview Kraushaar disclosed that she Mar- and post-office River, shall a shared box in Toms had she opened safe-deposit a box in a Toms bank River that contained ingots purchased Marshall, “couple silver worth a of thou- acknowledged sand dollars.” She also that before Mrs. Mar- death, planned open shall’s she and had joint Marshall checking response request by account. In Mahoney, to a expressed willingness Kraushaar her polygraph to take a test. Telephone toll records of calls to and from Marshall’s office and residence established a connection between Marshall and people Shreveport, several from Investigator Louisiana. Mur- phy testified that he incoming discovered record an call September 6,1984, phone Marshall’s office on pay from a at Airport Inn City. Motor Murphy Atlantic examined the guest registrations September Inn and one found 7, 1984, Davis, Lane, the name of Riding James Club Shreveport, Louisiana. The toll records also revealed a sub- telephone stantial number of calls from defendant's office the Caddo Hardware Store in Shreveport, and to the residence of Robert in Shreveport, Cumber as well as additional calls Hardware, from Cumber’s residence and from Caddo Cumber's place Petracca, employment. together Detective with Inves- tigator Murphy and Lieutenant Churchill from the Ocean Coun- ty Office, Shreveport, Prosecutor’s traveled to Louisiana on or September about They 1984. obtained a warrant to search Davis, guest registra- the name on the the residence James September Inn on 6th and 7th. Airport tion at the Motor Davis Petracca, Murphy, Shreveport. on the outskirts of lived Churchill, Depart- Parish Sheriffs and officers Caddo present executed. were the warrant was In a desk ment when garage, payee in Petracca drawer Davis’s Detective found 25,1984, dated June copies money of two Union orders Western Davis, and the payable to James one for one-thousand dollars a for dollars. In a drawer underneath other two-thousand residence, piece of sink in the officers found a bathroom Davis’s imprinted-with the words “memo” and “Caddo Hardware paper that the initials “RAC” Store.” Lieutenant Churchill testified 21, 1984” on “Sept. and the date were written back Cumber, who the memo as one he memo Robert identified Wayne given Billy had McKinnon. 1984, on in he

James testified that two occasions June Davis payable picked up money had orders for McKinnon to James given He him memo Davis. stated that McKinnon had filling in his assist out found him the form bathroom completed pick up money had to be in order orders. early up money picked Davis stated that in June he two orders $2500, up totalling picked money later that he two month $3,000, payee money totalling copies orders of these latter having garage. in his At trial identi- orders been found Davis signatures payee money copies fied his on the orders. River, McNeil, employee Thomas an of Porter Travel Toms 13, 1984, testified at on June a customer named trial that $2,500 purchased money Robert Marshall of Toms River $2,000 payable order—one for and one for to James draft $500— testified Shreveport, Davis of Louisiana. He also June identified McAllister of Philadel- customer as James phia, Pennsylvania stipulated by defendant’s counsel to have — $3,000 purchased using been Marshall a fictitious name— $2,000 Davis, money payable orders one for and one James $1,000. 21, 1984, September Mahoney Investigator On Detective County telephoned of the Ocean Office Woodfield Prosecutor’s they speak briefly if to him defendant and asked could about developments investigation. in their agreed, recent Defendant Mahoney proceeded According and and his Woodfield to home. Mahoney, began, when the discussion held Marshall a drink his pleasant cooperative. hand and his demeanor was and Mahoney told him certain names had come to their atten- investigation. tion the course of the He asked Marshall if he Jimmy Billy knew either a Wayne James Davis or McKinnon Shreveport, Mahoney from Louisiana. testified that Marshall paled, visibly upset, changed; became his and demeanor Maho- ney thought going said he spill Marshall was his drink. hearing

At a Mahoney’s Rule conducted before direct testimony, Mahoney testify the trial court ruled that not could respond question that Marshall had declined to his and had stated that his had counsel instructed him not to discuss the presence. case out of his In ruling, accordance with the court’s Mahoney testified on direct that after he had asked Marshall McKinnon, about names Davis and “the interview was terminated.” September 23,

On apart- Marshall and Kraushaar were at her Ortley ment at message Beach. Marshall on received a telephone answering Kraushaar’s machine from son his Robbie. The message was that an unidentified caller from Louisiana telephoned Marshall, phone number, had left a and asked that Marshall According return the call. trial Kraushaar’s testi- mony, Marshall expressed concern about whether he should consulting return the call without with counsel. She testified at trial acknowledged having that Marshall connections in Loui- siana, stating that he had made bets an “NBA [National playoff game,” Basketball “pay- and sent had Association] something $3,500 like connection with these bets. ments”— —in Kraushaar testified that she had never known Marshall to make substantial on sporting bets events. She stated that apartment defendant came to her September unannounced on the bets. She deceiving her about apologized for deception” and terminat- “appalled by that she was testified that she had relationship, denying on cross-examination their ed of her counsel. so on the advice done 27,1984, management of the Best Western September On that Rob- Lakewood, Jersey, notified authorities New Motel p.m. that guest around 4:00 registered as a ert Marshall had sixteen. Marshall room number He had taken afternoon. during their relation- stayed at that motel had often Kraushaar staked out the investigators County Prosecutor ship. Ocean might meeting a Marshall be stated belief that motel on the confederate there. Mohel, checked into room seven- investigator, Michael

One any traffic in and out teen, open to observe keeping the door Marshall walk p.m., 10:45 Mohel observed room. At Marshall’s Coca-Cola, and return hallway, buy a machine in the to a soda Marshall walk p.m., Mohel saw sixteen. At 11:30 to room returned After Marshall front office of the motel. toward the to speaking After to the front office. p.m., at 11:40 Mohel went tray located at the clerk, into a mail Mohel looked the motel writing inside. Mohel read and saw two letters front desk Joseph envelopes, to addressed on the of one of back my opened only in the event of Dougherty, Esq.: “To be envelopes; the one ad- investigator seized both death.” The tape inside. a cassette Dougherty appeared to have dressed to telephoned the superiors, and also telephoned his Mohel then He ob- Department request assistance. Police to Lakewood a.m., Mohel called from the clerk. At 12:30 passkey tained a placed The his welfare.” Clerk Marshall’s room to “check on phone, Mohel listened in. Marshall answered the call and Marshall Marshall’s condition. Mohel could not determine but phone the hook. left the off shortly at the motel there- police officers arrived

Uniformed They found entered Marshall’s room with Mohel. after and open asleep They also found an briefcase Marshall on the bed. tapes and with cassette recorders. Mohel woke Marshall anything. if he said had asked him had taken Marshall he Restoril, emptied fifty capsules agent, a a sleep-inducing of into Coke, cup asleep had but fallen and had not drunk the said to kill solution. Marshall he had wanted himself at the murdered, exact time his had overslept. wife been but had Hospital Marshall was then taken Point for Pleasant obser- vation. authorizing

The obtained a opening State warrant of the envelopes. envelope Joseph Dougherty, Esq., The addressed to brother-in-law, copy agreement Marshall’s contained a an building, one-page sale for Marshall’s office handwritten letter Dougherty, tape and a cassette dictated Marshall. pretrial suppression hearing, After a the trial court denied suppress defendant’s motion to the contents envelopes. argued unlawful, Defendant that the seizure was the warrant improperly issued, and that the envelope contents ad to Dougherty protected by dressed were attorney-client privilege. opinion We consider elsewhere this defendant’s challenge 62-73, ruling. the trial court’s Infra A. 2d at 114-120.

During tape State’s case the cassette found the en- velope Dougherty played addressed to was jury. to the tape Kraushaar, discussed relationship Marshall’s his in- month,” tention to leave Maria “spiral” “within his of debt * * * that “accelerated to almost two-hundred thousand dol- * * * off, that I pay was determined to just but couldn’t lars] out,” seem to climb hiring Billy his reasons Wayne McKinnon thought he Jimmy investigate [who Davis] tape Maria. On the acknowledged he Marshall had sent $5,500 McKinnon in two installments given and had him an night additional at $800 Harrah’s the of the homicide. Marshall Dougherty tape respect instructed on the to how various business, financial, personal and matters should be handled. expressed Marshall his intention take his own life because he murder, expected to indicted and convicted for his be wife’s though even he was innocent. 22, in September

Robert Cumber was arrested Louisiana on 1984, County Jury and was indicted an Ocean Grand on September conspiracy 26 for to commit murder. McKinnon and mid-October, supersed- Davis arrested in James were and 17, 1984, ing charged togeth- indictment returned October were conspiracy er with Cumber with murder and to commit murder. charges against subsequently Davis were dismissed. Cum- Jersey. ber and McKinnon were extradited to New plea bargain McKinnon entered into a with the State on He December 15th. testified at trial that he and his counsel him, against referring specifi- had reviewed the State’s evidence cally describing leaving to the witness’s statement his Cadillac picnic Parkway area onto the southbound lanes at the time tape of the homicide and to Marshall’s cassette to his brother- agree- in-law. McKinnon stated that he had entered into the counsel, “preponderance ment on the advice of in view of the against agreement evidence” him. The introduced in evi- jury. agreed give dence and read to the McKinnon a full identifying everyone statement involved the murder of Maria Marshall, immunity, testify grand jury to waive and to before a return, ensuing permit- and at the trial. In McKinnon would be murder, plead guilty conspiracy ted to stipulated to commit offense, to be a non-Graves Act the State would recommend term years parole ineligibility not excess of five without to be security purposes Clinton, served for at the State Prison in prosecutor’s paroled office would recommend that he be possible agreed the earliest date. The State also to relocate his family protection, to a safe location for their support and to entry witness-protection their program. into the gave his statement to Lieutenant Churchill and McKinnon Detective In early January Petracca December 1984. County Jury an Ocean Grand returned the current indict- Marshall, against Cumber, McKinnon, ment Thompson, superseding prior testimony indictments. McKinnon’s trial substantially consistent with his 21st December statement.

According McKinnon, to he was solicited June 1984 Cumber, co-defendant who knew that McKinnon had done in- vestigative past, stop by work in the to Caddo Hardware at a pre-arranged speak by telephone Marshall, date and to time to acquaintance described as an of Cumber who needed an investi- gator. spoke Marshall, McKinnon with told him who he wanted City arrangements someone to him in meet Atlantic and make investigation to conduct an of his wife. McKinnon identified Davis, Jimmy himself to Marshall as and asked for an advance $5,000 in “expense money” traveling before to City. Atlantic agreed money, days Marshall to wire the a few later money $2,500 Cumber told McKinnon payable order for Jimmy had picking up Davis After money arrived. Davis, McKinnon asked Cumber about the balance. Cumber spoke with said pay Marshall who that he would an additional $2,500 if McKinnon would meet him on 18th June at Harrah’s Casino.

McKinnon testified he City 17th, flew to Atlantic on June stopping in Philadelphia. first On arrival he asked a cab driver him Motel, drive to the Islander where his wife had made a (After reservation because Harrah’s had no rooms available. homicide, investigator an from the County Ocean Prosecu- tor’s driver, Office located the cab Tae Yeon. Yeon testified trial.) for the State at The cab driver was unable to find the Motel, Islander and eventually drove McKinnon to Harrah’s he get room, where was registering able Jimmy as Davis. Marshall arrived at McKinnon’s room noon day. the next McKinnon “patted testified that he him down” to check for weapons recording McKinnon, According devices. Mar- began talking shall investigation an wife, about of his but interrupted McKinnon and referred to “unfinished business.” $2,500 Marshall then handed McKinnon in one-hundred-dollar bills, payment completing $5,000 advance that McKinnon requested. had Marshall resumed his discussion of his wife’s notes, activities while McKinnon took point at one in the conver- handing sation McKinnon photographs of his wife and of their residence.

McKinnon testified that after fifteen twenty minutes Mar- shall told him that “what he really wanted to do get was to rid of his wife.” McKinnon meant, asked he what and testified replied, that Marshall killed, “I want her done away with.” Responding questions, to McKinnon’s suggested Marshall that place murder could evening take at the Rams Head Inn where the reservations, Marshalls had dinner or after dinner at place a on Route 30 called the Porthole. McKinnon testified that he informed Marshall wife, that he would kill not his but get could someone else to do it.

They then negotiated price for the According homicide. to McKinnon, $100,000 asking after agreed $65,- he accept to 000. $5,000, McKinnon had already received and Marshall agreed pay $10,000 to an $50,000 additional in advance and out of the anticipated proceeds. insurance McKinnon stated that room, Marshall then left and returned fifteen or twenty minutes gave $7,000 later. He McKinnon more in cash and agreed $3,000. to wire an additional McKinnon testified that leaving room, before his gave Marshall McKinnon his car’s plate license number and told him that he and his wife would be at the Rams eight Head Inn between and nine o’clock that evening. McKinnon walked with Marshall to his Cadillac parking Harrah’s garage. having

After dinner evening Harrah’s, using a “comp” guest check that provided Marshall had signing check, Marshall’s name to the telephoned McKinnon the same cab driver who had driven him to prior evening. Harrah’s the testified, McKinnon driver, as did the they cab drove to the Rams Head Inn and through lot, drove parking which McKinnon described as crowded and well-lit. McKinnon stated looking “places” apparently referring

that after at those — City. Inn Rams Head and the Porthole —he returned to Atlantic McKinnon testified that Marshall called him at his room the morning “why job Although next to ask wasn’t done.” him, weapon McKinnon testified that he had no he told shotgun only Marshall that he had and would have to return Shreveport get left Atlantic what he needed. McKinnon City on June 19th. Louisiana,

Shortly after McKinnon’s return to Cumber in- $3,000 formed him that had an additional Marshall wired Jimmy picked up money gave Davis. Davis it to McKinnon. City,

McKinnon testified his return that after from Atlantic relayed him, messages reporting Cumber numerous telephoned “Jimmy Marshall had and wanted to know when done, Jersey, job Davis” would return to that the New was not and that “Davis” had several thousand dollars of Marshall’s Cumber, money. Through McKinnon sent word to Marshall Jersey that he would return to in mid-July New and would telephone Marshall he when arrived. McKinnon testified that friend, he Gentry, and a Mike City drove to Atlantic in McKin- Cadillac, non’s he which described as “white or cream color with beige top.” Motel, a or They stayed brown at the Seacomber Gentry signing register for both men. The assistant man- ager of the Seacomber testified at trial and confirmed that 19th, Gentry registered July registration and that the card indicated that the occupants. According room had two McKinnon, telephoned he morning Marshall at his office on the July phone Motel, 19th from Airport public booth at the telephone nearest to the Seacomber. McKinnon asked if Mar- phone. not, shall was on a “clear” Marshall said he was and agreed to phone so, call McKinnon at the back booth. He did and told McKinnon that he evening would have dinner that Harrah’s agreed with his wife. He eight meet McKinnon at o’clockbehind Harrah’s the area near the marina. McKinnon testified that he told they “job” Marshall when met that the was more than he had anticipated, involved and that he would money. need more Marshall said that planned he and his wife to see dining play blackjack. a show after and then McKinnon agreed testified that evening, Marshall to meet him later that met, they gave $7,000 and when chips. Marshall him McKinnon, According to expected Marshall that the homicide night, would occur that all-night described to McKinnon an stop restaurant at which he would way on the home from City. Atlantic McKinnon testified that him Marshall told he park car, would behind restaurant and ostensibly leave to use the restaurant’s attempt bathroom. He said he would leave the car doors unlocked probably but that his wife would lock them after he left. Gentry

McKinnon and returned to the casino. At McKin- request Gentry non’s chips gave cashed McKinnon money. McKinnon testified that he observed Maria Mar- casino, sitting blackjack shall at a holding single table in the .rose.

McKinnon Gentry testified that he drove back to the motel and then all-night drove to the restaurant Marshall had de- pistol scribed. He had a in his car. When he arrived at the restaurant, he police parked observed several cars in front. He minutes, thirty forty waited but Marshall did not arrive. McKinnon returned to the Gentry motel. He and left New Jersey Shreveport morning. the next McKinnon testified that on trip back to Shreveport, Gentry he told that Mar- $50,000 shall willing pay to to have his wife murdered. testified, Gentry When he denied that that conversation had occurred.

According McKinnon, to returning after to Louisiana he continued to messages receive numerous from Cumber indicat- ing that complaining Marshall was that McKinnon had been paid completed but had not his gave work. McKinnon Cumber telephone a pay phone number for a at a service station near home, requesting Marshall call him there at

his Cumber to have designated date and time. Marshall’s toll records reflected spoke pay phone. calls to that McKinnon testified that when he Marshall, gave explanation why he him a fictitious about the homicide had not carried out on his most recent visit. been McKinnon, rejected suggestion pressed Marshall but his during family’s Michigan. the homicide occur vacation Cumber, through McKinnon next heard from Marshall who informed him that Marshall had said there would be an “extra “job” if fifteen” for McKinnon he would do the before Labor Day. he McKinnon testified that assumed Marshall meant dollars, try fifteen told he thousand Cumber would do it. subsequently McKinnon also testified that he received telephone Larry Thompson asking call from co-defendant evening McKinnon to meet with him that at a local McDonald’s According McKinnon, Thompson restaurant. said that $75,000 people “some out of Dallas” had offered him to kill McKinnon. McKinnon stated that he assumed the offer to Thompson was related to McKinnon’s failure to fulfill his Marshall, Thompson commitment to which said he had heard Gentry. Thompson from about McKinnon testified that told things done,” him suggesting they go “these can be back Jersey to New “and look at it.” According McKinnon, Thompson’s Thompson wife drove 5th, September they McKinnon’s home on 4th or left for Jersey evening. They stayed overnight New at a Comfort Jackson, Mississippi, Jersey Inn in and drove to New the next morning. manager At trial the Comfort Inn’s identified McKin- guest registration. non’s name on the He stated that the Inn’s people room, records indicated occupied that two had based rate, on the room they night and that had checked in late at on September early 5th, 4th or September checking out before September noon on identify 5th. He could not the room’s other occupant. they

McKinnon in City testified that arrived Atlantic at about September 6:30 a.m. on 6th and checked into Airport Motor Inn, signing in McKinnon under the name of James He Davis. telephoned pay phone, Marshall at his office from a and Mar- shall returned the call a few According minutes later. McKinnon, Marshall told him that going he would be to Har- night, rah’s that but asked McKinnon to meet him at 11:30that morning parking Roy Rogers in the lot of the just service area south of Toms River. McKinnon testified Thomp- that he and area, arriving son drove to the service Thompson about noon. in remained the car. McKinnon walked to the north end of the parking McKinnon, lot and found Marshall there. According to he and Marshall then Parkway drove southbound on the for, possible Marshall’s car to check out sites the homicide. rejected locations, After McKinnon two other Marshall drove Oyster into the Creek Picnic Area and McKinnon said that it satisfactory. They was returned to the service area. McKin- $15,000 non asked about extra and Marshall said it would pocket night. be his McKinnon then returned to his car Thompson waiting. where They City, returned to Atlantic stopping briefly Oyster at the picnic way. Creek area Thompson suggested McKinnon testified that that he should area, wait the woods for picnic the Marshalls to arrive at the in order any to observe whether parked other vehicles were there.

McKinnon testified that he met Marshall at about 9:30 that evening request outside of Harrah’s. At Marshall’s McKinnon pictures returned to him the of Maria and of their residence given Marshall had him they when met in June. Marshall told they McKinnon leaving would be Harrah’s around twelve or twelve-thirty. According McKinnon, Thompson he and ate dinner, stopping later at a buy pair hardware store to gloves. rubber McKinnon stated that he had with him a .45 caliber colt pistol, Army special, from which he had eliminated any fingerprints by wiping it down. dropped Thompson

McKinnon testified that he off at the picnic twelve-thirty. Because was area between twelve it cold, gave Thompson he one of his knit shirts wear. McKin- to exited, Parkway, non then drove on the southbound reentered lane, the the northbound and waited for Marshalls at the toll they him, delayed plaza. passed When he about two minutes He picnic and then drove northbound and entered the area. parked passenger open car door saw Marshall’s with the lying ground on the at rear of car. Thompson Marshall the the car, floor, got put something got into the on the then out and to right ran the rear tire Marshall’s car. McKinnon testified Thompson “squat that he saw and then heard air “hiss- down” ing Thompson out” they tire. reentered the car and picnic Parkway drove out of the area onto southbound lanes. picnic slowly,

McKinnon testified he pulling left the area right-hand into the Parkway heading lane of the southbound. passed Christine Hilton testified at trial as she a and friend Oyster a.m., driving Creek Picnic Area at 1:00 about south- Parkway, bound on the white a Cadillac with a “different color “flying roof” came out of the rest area.” Ms. Hilton said she to being had slow down her car to avoid hit. She did not see many people how they were in the Cadillac or whether were male or female. McKinnon,

According Thompson to had poek- Mrs. Marshall’s etbook and been pocket- cash that had either from the removed pocket. book from their way City, Marshall’s On to Atlantic Thompson handed McKinnon three or four hundred dollars cash. McKinnon Thompson testified that he to told throw pocketbook they out the window as Parkway. drove off the He Thompson also stated that weapon had into thrown murder “large body they passed Parkway, water” that had on the but was Thompson disposed uncertain about where had gloves. knife and rubber spent

McKinnon that he and Thompson night testified at Inn, Airport leaving Shreveport Motor next morn- ing. McKinnon that after returning Shreveport, said he “something to see and informed him went Cumber bad” Jersey had occurred in but anything New didn’t have “[w]e with it.” try get paper do He asked Cumber to and find what In that produced out went on. connection State Suswal, stepfather, Michael Cumber’s who testified that Cum- telephoned a Monday early September ber him on and asked newspapers previous him send Cumber from the days. three get Storino, the newspapers. Suswal unable to Nina Cumber, party initially had whose Marshall met testified that Cumber, friend, family telephoned an old September her around “happy birthday.” 11 to wish her a In course of the conversation she told Cumber about Maria Marshall’s death. cross-examination,

McKinnon subjected extensive de- emphasizing generous fense counsel particularly the terms of plea bargain, his paroled which allow McKinnon to would be after completion Thompson’s soon of the trial. counsel pressed concede McKinnon to that the would not State have generous offered McKinnon such he terms if had been the “shooter,” acknowledged and McKinnon no evidence other testimony implicated than his in Thompson the murder. Thompson’s questioned persistently counsel McKinnon about explanation Thompson’s homicide, his implying role in the that McKinnon himself had murdered Mrs. Marshall and had Thompson’s fabricated negotiate involvement in order to plea bargain. favorable produced

The State other witnesses evidence and that were consistent with McKinnon’s account of the homicide. Tele- phone toll records established that calls been made had between Thompson’s Gentry home and residence of Mike shortly Gentry’s after from City July, return Atlantic supporting assumption McKinnon’s Thompson’s initial contact with prompted by him was Gentry. information he had from received Toll records also confirmed that a placed call was to Marshall’s morning September public telephone

office on the 6th from a Airport testimony at the Motor Inn. The State elicited from a confirming credit executive at Harrah’s that Harrah’s had regularly extended credit to Marshall in the form of “markers.” Marshall’s account with Harrah’s indicated on June met, the date McKinnon said he and Marshall first Mar- $4,000 paid shall p.m. back a marker at 1:00 and withdrew an $7,000 in additional markers 2:30 p.m. between and 3:00 On 20th, July the date on which McKinnon said he met with evening, Marshall outside Harrah’s in the Marshall withdrew $3,000 in p.m. markers at about 9:30 produced employed State witnesses by various insurance companies policies insuring that had Mrs. Marshall. Policies in effect at the time of her death had been issued in by June 1984 Bankers Life Casualty Company $20,000; April for by Minnesota Mutual Life Company $100,000; Insurance for by Knight June 1984 Agency $33,480 (tuition Insurance for payment insurance); in February by Fireman’s Fund Company $100,000; Insurance for on an undetermined by date Banner $500,000; Life Insurance Company for in February 1984 Manhattan Life Company $500,000; Insurance September 10, 1982, by Provident Mutual Life Insurance $100,000. Company for Employees of the Banner and Manhat- tan Life Companies Insurance testified that Marshall also had $500,000 policies on his life in effect with companies, their but paid that he August the premiums only on Mrs. Marshall’s policies, permitting policies his lapse. own Marshall reinstat- ed policies both his retroactively, paying August premiums subsequent to Mrs. Marshall’s death. manager claims Colony First Life Company Insurance

testified that death, after Mrs. Marshall’s they received an application $100,000 for insurance on her life in envelope an postmarked September 4, 1984, containing unsigned an check for the premium initial on drawn Marshall’s bank account. The application processed. was not Insurance, August Scala, testified Ruth Ann Scala “mort- soliciting by applications for agency mail 1984 her response from insurance, received a August and on 30th gage” not Marshalls, indicating in life insurance but an interest September 4th spoke by telephone on insurance. She disability defendant, cheapest he available who said wanted that Marshall mortgage. Mrs. Scala testified policy to cover his applications, stating that pick up like to told her he would the end of the week and “wanted going on vacation at he was he left.” She instructed her get taken care of before it morn- Marshall the next applications deliver the husband to when, he Christopher testified that delivered ing. Scala proposed that the day, next he applications to Marshall the following done the week. required physical examinations be physician, he his own but suggested instead that use Marshall request approval from the he have to Scala indicated would testimony, Marshall issuing company. According to Scala’s done the next physical him examinations had to be told going on Marshall was vacation. day September 6th—because — office, to his he was able testified that when he returned Scala to be exam- special arrangements make for both Marshalls that at September 11:00 a.m. Scala testified ined on 6th at 6th, residence September picked up he at Marshall’s noon on $130,000 applications in insurance on defen- completed Marshall, signatures. The witnessing both their dant and Mrs. engaged performed testified that he medical examiner Scala physical examinations of the Marshalls between required September 11:00 a.m. on 6th. 10:00 and above, supra at 586 A. 2d at Sarann As noted to de during the State’s case. Unknown Kraushaar testified counsel, interrogation prior second fense to Kraushaar’s 27, 1984, signed County Prosecutor had September the Ocean charge prosecute nor to Kraushaar agreeing letter neither to Marshall, in return for her connection with the death of Maria prosecutor’s cooperation.” “truthful The nondisclosure subject agreement concerning of a remand Kraushaar was trial, hearing ordered this Court after and we address hearing opinion. in this issues raised at the remand elsewhere 171-207, testimony at 586 A. 2d at 175-196. Kraushaar’s Infra essentially her statements to Inves at trial was consistent with tigator Mahoney September Petracca on 1984. Detective 35-36, Septem Supra at 586 A. 2d at 101. In her statement on 7th, her, “I saying Kraushaar had recalled Marshall wish ber you anyone around. Do she wasn’t know who would [Maria] trial, however, take care of it?” At Kraushaar recalled Mar been, way comment to have “I if there shall’s swear were away get I I In could either do rid of her would.” her September 7th statement said Kraushaar that she and Marshall planning spouses were both to leave their that month and live together. testimony, In her trial Kraushaar testified that al though planned immediately, plans Marshall out move her were less certain and her intention was to move in Mar shall at time in the future. some proofs testimony

The State’s also included from Detective Petracca, night who retraced Marshall’s route the of the homi- cide to ascertain what other locations were available for defen- dant to have checked his out car trouble. Petracca observed Parkway that from Route 30 to the was about “a nine mile stretch,” and open that two service stations would have been as well as the State Police Barracks. Parkway Absecon From the Area, Oyster entrance to the Creek Picnic thirty- a distance of miles, one Petracca identified as available facilities the Atlantic City area, service open night; which was all the Bass River Barracks; State Police plaza; the New Gretna toll the Stafford Forge milepost Picnic Area seventy-one, which he described open,” big paved as “wide area that is visible from one side of other; Parkway Barnegat to the plaza just and the toll Petracca, Oyster According south of the Creek Picnic Area. there paved Parkway were also fourteen U-turns on the be- tween Route 30 and the crime that a motorist could use to scene check for car trouble.

B. Defendant’s Case addition, Defendant testified in his In he produc- own behalf. general ed four character testified reputa- witnesses who to his Luker, honesty tion for integrity. postman and Charles Lakewood, route whose included Best Western Motel in and Rackoczy, Best manager, Paul Western both testified that box in depository September the mail use at the motel on open by was not the flat Investigator box described Mohel, large but rather was a a depository mail with slot at the top postal and a latch at the bottom carrier had to gain unhook to access to mail. produced also financing expert

Marshall an insurance who testified that the for charged by rates term insurance Provident Company, Mutual primary company, Insurance Marshall’s were substantially higher charged than companies; those other that rates for term insurance generally past had declined in the years; practice replace few and it expensive that was sound term less-expensive policies. Zerrer, insurance with John a agency manager former for Provident Mutual Insurance Com- pany, testified that Marshall been company’s had one of the productive agents, selling most fifty- eighty-mil- between and during lion dollars of his insurance career. He testified that place Marshall was authorized to with companies insurance Mutual, other than Provident and that most Provident’s agents placed companies term insurance other with because high. Provident’s rates too Zener were stated that there had been dramatic past reduction term-insurance rates the few years, and good therefore it had buy been time to term insurance.

Joseph brother-in-law, Dougherty, Marshall’s testified as a defense primarily witness envelope establish that ad- dressed to him and seized at the Best Motel Western privileged attorney-client relationship because his with Mar- According shall. he Dougherty, agreed had to assist Mar- by performing in the conduct his shall’s counsel defense writing and legal research and memoranda law briefs. John Christopher All three of sons testified. Marshall’s telephoned September them on confirmed that when Marshall motel, upset depressed. 27th from the he had sounded 6, 1984, September Robbie Marshall testified that on he was 11:30 a.m. and his home at noon awakened at about left Club, parents Country both lunch at the Toms River have they stayed testimony an His where about hour. conflicted with McKinnon’s assertion that he and Marshall had met at day stop about noon that at a rest Garden State Parkway. testimony description a

Marshall’s commenced with of his education, Maria, background to marriage family and his their development history, and the of his insurance business. He Kraushaar, acknowledged relationship his with Sarann indicat- ing respective that it their their had been intention to leave spouses together not in order to immediately, but live avoid the perception begun relationship that their while had their mar- riages were intact. He related a conversation Kraushaar in him lawyer which she informed that a had told her suspicious relationship. Maria of their He also testified that Maria had unable to for been account several thousand had, in winnings given dollars casino that he to her. He having acknowledged party given met at a Robert Cumber a 1984, neighbor May in and in the a course of conversation about gambling having mentioned to he Cumber that was interested hiring investigator in missing an to account funds. Marshall testified that he had to also wanted find out whether having his wife had been him had followed and known about his involvement with Kraushaar. Marshall,

According he telephoned in Cumber June and agreed help Cumber investigator, Marshall find an instructing him call days back a later at designated few so, McKinnon, time. He did and Cumber introduced him to who telephone Jimmy himself on the as Davis. McKinnon identified $2,500, investigation perform offered to an for Marshall for acknowledged Marshall wired to him. Marshall their which meeting paying at Harrah’s June but denied McKinnon during meeting. giving any money their He admitted McKin- home, photograph non a of Maria and of their but insisted that assignment determining McKinnon’s was limited to whether having Maria was Marshall followed and what she had done given money with the that Marshall had to her. meeting Harrah’s,

Marshall testified that after McKinnon at telephoned he Cumber because McKinnon had not communicat- ed with him. Cumber said that Davis would come [McKinnon] Jersey $3,000, if back to New Marshall wired an additional and Marshall should use name “James McAllister” when he money. $3,000, sent the Marshall sent the and continued to telephone Cumber when McKinnon did not arrive. Marshall also testified that he sent Cumber information about establish- ing opened an Individual Retirement Account a file [IRA] his name. acknowledged

Marshall that McKinnon returned to New Jer- Harrah’s, sey July again meeting met him at not tape recording mentioned on the Marshall made at the Best Marshall, September According Western Motel on 27th. investigation McKinnon told him on this occasion that the had completed not money. been and that he needed more Marshall give money, testified that he had refused to him additional but apparently investigation assumed that eventually would be completed.

Marshall testified an incident about that occurred after their July meeting, person open when an unknown tried to the door occupying of the motel room that he with Sarann Kraush- aar. being That incident increased his concern that he was prompted'him followed and to call Cumber and offer Davis an if complete additional he would $1500 inves- [McKinnon] tigation by early September. after in August

Marshall testified that he returned from a Michigan, looking family began vacation in he for a house he into, focusing move on a that could rental was available acknowledged during Beach Haven West. He also that period purchased ingots put time he silver and them safe-deposit box Sarann Kraushaar’s name. Marshall,

According telephoned to McKinnon him from Atlan- 6, 1984, City September tic at about 10:00 a.m. on and asked phone. pay They arranged that Marshall call him from a back p.m., at to meet outside Harrah’s about 9:30 McKinnon remind- $1,500, ing bring insisting to the extra and Marshall Marshall report. met, bring they that McKinnon his When McKinnon report had not give said he finished and Marshall refused to money. him more Marshall testified McKinnon then completing threatened to the investigation, leave without gave Marshall him an to to stay. additional induce him $800 According Marshall, played blackjack to he and Maria $4,000 evening money. paying won some After off marker, midnight Marshall the casino left before with about $2,000, and Mrs. had an Marshall additional He $500 $600. during evening, telephoned testified that he his son Christo- pher Christopher and learned that not did intend to come home Lehigh University from day. next When Mrs. Marshall expressed go her Christopher, intention to to see Marshall match, telephoned indicating a friend to cancel a tennis that he planned go Lehigh with his wife. testimony

Marshall’s about the from drive Harrah’s to the picnic prior area and.of the events to the murder was consistent gave police interrogated the statements he officers who 31-33, him after the Supra homicide. A. 2d at 99- 100. He he responded falsely conceded that had when the police seeing had asked him if he was another woman.

Marshall testified that when he checked into the Best West- September 27th, ern Motel so intending he did to take his sons, life. tapes He made farewell of his each which were being taken after stated that jury. Marshall played for the to a Hospital, he admitted Pleasant was to Point from the motel for he remained Philadelphia in where hospital psychiatric-care days. twelve telephone conversa- an extensive testified about

Marshall also Kolins, investigator an Russel September 26th with tion on Marshall’s counsel, Louisiana on gone had to by his who hired Marshall, during conver- learned this According he behalf. man he had and that the been arrested that Cumber had sation Billy Wayne McKinnon. named Jimmy Davis was known as costs he Kolins the he also discussed with that Marshall stated had Louisiana, concern that Kolins expressing incurring in prosecutor long. cross-examination too On stayed there conversation, that suggesting that Marshall about questioned by McKinnon prepared read to him a statement Kolins had in McKinnon’s activities purported explain his counsel Mrs. murder of him in the implicating Jersey without New observing that McKinnon’s both prosecutor, Marshall. tape to his brother-in-law statement and Marshall’s prepared Harrah’s, ques- meeting at July any reference to omitted tape his from result- that omission Marshall on whether tioned denied that Kolins. Marshall ed from his conversation him, responded statement had read McKinnon’s Kolins July meeting was inadvertent. the omission prepared had in he October Marshall testified to deter- and Mrs. Marshall analysis for himself capital-needs in force on that should be life insurance the amount of mine die, in either was in order that the event of them each adequate income. He an provided with would be survivor $500,000 in in force he then had about that because estimated Mrs. available for and benefits and had other assets insurance $500,000 He insurance. Marshall, required an additional he approximate- have force Mrs. Marshall should estimated that insurance, assump- on Marshall’s based ly one-milliondollars respon- of added reduced because his income would be tion that her death. He also in the event of he assume sibilities would quite in that rates for term insurance were low 1983 testified Referring specifically Provident and 1984. to the Mutual Insur- 10, 1982, Company policy September issued ance Marshall ob- policy by that that its have served terms would been “incontest- September 10, Mrs. had able” if Marshall died after three her days after murder. Kolins, investigator counsel,

Russel hired .Marshall’s Kolins, According also testified Marshall's behalf. to he flew September to on 26th met Louisiana with McKinnon’s Loridans, lawyer, Loridans, Henri his son Maurice and Henri’s wife, Sandra, who was McKinnon’s sister. He met also with McKinnon, initially thought Jimmy who he Davis. Kolins telephone testified that after his conversation with Marshall on 26th, Loridans, September acting Maurice on Sandra’s instruc- tions, gave copy pre- Kolins a of a statement McKinnon had pared lawyers, for his accuracy repudiated of which he during testimony. his trial having Kolins denied discussed the content the statement with or Marshall Marshall’s counsel on September Jersey, 26th. After Kolins returned New he had sister, expressed a conference call with McKinnon and his who concern about comments Kolins made to relating had the media prepared They to McKinnon’s- statement. cautioned Kolins mentioning Peggy who, according about a named woman statement, accompanied McKinnon’s him Jersey to New September. They asked Kolins destroy to return or McKin- statement; according Kolins, non’s he did neither. permitted Kolins also was over testify^ objec- the State’s tion, to a he conversation had prior with McKinnon to his hearing, extradition in which McKinnon denied coming to New Jersey September Larry Thompson apparently but acknowledged traveling Jersey to New with a woman named Kolins, Peggy Sherry. According to McKinnon never told him that he Jersey purpose came to New for the of murdering Maria Marshall. Thompson’s Case

C. Co-Defendant Louisiana, Natchitoces, assist- Gallien, a dental Angela from Burke, Thomp- Larry testified that co-defendant ant for Dr. p.m. 4:45 appointment with Dr. Burke at son’s son Brian had an that when Brian came to September 1984. She recalled adult, office, accompanied by male but she could he was with Brian. She identify Thompson person not as the who was testified, however, receipt reflecting pay- prepared that she work, receipt Larry dental and the bore ment for Brian’s pre- Thompson’s practice testified that her was to name. She person responsible for receipt in the name of the pare a cross-examination, acknowledged having re- she payment. On wife, Thompson’s telephone call from co-defendant ceived a Ulanda, investigator coming to see informing her that an her, say Thomp- that denied that Ulanda had asked her to but conceded that September in on 6th. She son was the office of- interrogated by investigators prosecutor’s from the when man, woman, fice, expressed uncertainty she whether a had paid Thompson’s child had for Brian dental work. Giddings, Thompson friend of who lived Garland a social Fairview-Alpha, Thompson’s home in about ten miles from Louisiana, Thompson regularly on testified that he and talked He telephone recognizes Thompson’s and that he voice. telephoned Thompson at his home on Thurs- stated that he had 6th, p.m., to solicit his day, September between 8:00 and 10:00 day “raising” Giddings in had sunk help the next a boat spoken prior Giddings testified that he had with weekend. Thompson accompany him Thompson, but that was unable to According Giddings, the date of day. the next he recalled day he was telephone call because the next which —on birthday. retrieve the his wife’s boat—was brother, Thompson, testified that he Steven co-defendant’s Shreveport by Larry Thompson, lived a house owned and Thompson stopped by his had to see him there and wife Saturday, September between 10:30 and 11:00 a.m. on 8th. Thompson, Thompson’s Brian co-defendant eighteen-year-old son, September testified that his father was at home from 6th through September 9th. He stated that his father had accom- panied him to the dentist on September the afternoon of 6th spent evening and had at home. Brian recalled that his father was in bed he left morning, when for school the next they together testified that ate dinner evening, September 7th. Brian testified that his Saturday father was not at home morning, day but returned home later in the and ate dinner at 9th, Sunday, September home. On his father was at home to celebrate Brian’s birthday. sister’s

Lynette Giddings, wife, Giddings’ Garland testified that she overheard speaking Thompson her husband telephone on the during evening September 6th. having She also recalled Thompson seen past Thompson’s his wife drive her in truck p.m. at about 4:30 September 8th. Gentry

Michael also testified as a Thompson. witness for Although confirming accompanied that he had McKinnon to City July Atlantic Gentry testified that he had never wife, met or seen Marshall or his and that McKinnon had never told him that Marshall wanted Conceding his wife murdered. that he had Thompson worked with spoken and had him regularly by telephone, Gentry having Thompson denied told that McKinnon had been hired to murder Maria Marshall.

Thompson behalf, testified his own denying any involve- ment in the death of Thompson Maria Marshall. maintained that he was at home in Louisiana when the murder occurred. taking He recalled his son to September the dentist on 6th and paying receptionist money given his wife had him. Thompson confirmed that he and Giddings Garland spoken had telephone evening. According to Thompson, he spent Friday, September 7th, doing home, work at and had dinner at home evening. He testified that he had driven to Shreveport on Saturday, Steven, visited his brother bought a part for his truck and a birthday cake daughter, for his and having any had evening. He denied conver- home that returned people putting in Dallas out McKinnon about sations with him, traveling City with and denied to Atlantic “contract” on McKinnon, had he He conceded that knew McKinnon. He September from him on 1984. acknowl- purchased a car during staying had at Marshall’s home edged that his wife been trial, permission had received from explaining that she staying there to sister and had asked about save Marshall’s testified, Thompson expense a motel. Mrs. also and her of September testimony Thompson’s activities from 6th to about substantially the same as his. September 9th was D. The Verdict deliberation,

After several hours’ found Marshall murder, purposely or guilty conspiracy of to commit and of as accom- knowingly causing the death of Maria Marshall an payment money. of plice by payment promise or of a sum Thompson charges. jury acquitted Larry The of all Sentencing Proceeding E. The case, inception sentencing phase of the defense At the of the decision, it defendant’s with which he counsel stated that was concurred, during sentencing proceed- to call no witnesses evidence, ing. relying on the The State offered no additional phase during guilt record that had been established case. argued proofs that the the existence of State established factor, aggravating procured

one that defendant had the com- promise payment by payment mission of the murder 2C:ll-3c(4)e. stipulated exist- money. Both sides N.J.S.A. factor, history mitigating ence of one that defendant had no 2C:ll-3c(5)f. prior activity. criminal Defense counsel N.J.S.A. argued concerning that evidence the record Marshall’s busi- ness, charitable, community activities was sufficient factor, mitigating “[a]ny other establish an additional factor * ** relevant to the defendant’s character or record or the 2C:ll-3c(5)h. circumstances the offense.” N.J.S.A. jury unanimously beyond found reasonable doubt factor, aggravating existence of the and also found evidence of mitigating the existence both factors. It concluded unani- mously beyond a reasonable doubt the aggravating factor outweighed mitigating factors. The trial court sentenced to death. Marshall

II. Pretrial Motions A. Letters Seized Best Western Mailbox Among most sharply-contested case, issues this both at pretrial-suppression motion, trial and at a was the State’s seizure and subsequent tape use of the cassette made defendant in the course of his attempt aborted suicide at the September 27, Best Western Motel tape, on 1984. The enclosed envelope in an addressed to defendant’s brother-in-law and opened police warrant, after the had obtained a search con- acknowledgment by tained an Marshall that he had hired wife, investigate McKinnon to paid $6,300, his had him $800 paid of which night was at Harrah’s on the of the homicide. played tape The State for McKinnon to induce him to enter plea agreement. into tape The State also offered the during trial, evidence played and it jury. was for the challenges pretrial Defendant rulings trial court’s denying suppress his tape grounds .motion that the seizure unlawful, of the envelope was proba- search warrant lacked cause, ble the tape’s protected by the attorney- content privilege. client

The trial court pretrial hearing conducted a to determine the admissibility in evidence of envelope the contents of the ad- Dougherty dressed to that consisted a three-page contract of

63 the stationery, and sale, one-page on motel letter written a by tape dictated defendant. cassette the Hahn, manager at hearing, Zillah the front-desk At the Western, into room that she checked defendant Best testified prosecutor’s the September on She notified p.m. 27th. 4:00 minutes Chief presence about ten later. of defendant’s office County and Prosecutor’s Office Herbert of the Ocean Palmer hotel George arrived at the Police Lieutenant Justin State passkey and p.m., 4:00 4:30 received room and between began their surveillance defendant. approxi- hotel at

Investigator Mohel arrived at the Michael leave 16 at p.m. defendant room mately 9:15 Mohel observed left p.m., again 11:30 defendant p.m. buy and a soda. At 10:45 followed proceeded his to front-desk area. Mohel room and the tran- sequence and of events that defendant recounted the spired: go did what do after thereafter? Where did you you What happened Q. walking the front saw Marshall towards desk?

you I Mr. I followed him to the area of the front desk believe unobserved by A. I saw him I him at the desk area and then at which time observed Marshall, time I went to the area back to the room at which then leave that and proceed front desk. Judge the what at the front desk. Tell Q. happened manager] night-desk that Mr. At the front desk I was advised by [the A. a box on the desk. had two letters located Marshall deposited go on the desk? did over and examine that box Now, Q. you on of another I looked the box and I observed white envelope top A. into terminology, “To be the and on the itself had opened envelope envelope event of death.” my written looked into that box or see that —those words as you Could Q. you hold them? have to actually physically did up envelopes you pick I it when into box. A. No. observed I looked letter-sized, white, envelopes. business envelopes two were The postage. envelope contained first-class was sealed and Each secretary1 and the addressed to defendant’s One letter was sought exclude from trial also to 1Defendant’s motion suppress However, addressed to Marshall’s secretary. contents envelope other, legend Mohel, containing Pennsyl- described vania “Joseph Dougherty, Esq.,” business address of defen- dant’s brother-in-law. investigator took envelopes back room superiors. explained his

notified He that he retrieved the envelopes in justify order future actions that “[t]o [his] [he] go would into have room to check [defendant’s] [defen- well-being.” instead, open envelopes; Mohel did not dant’s] night manager phone he asked the to room and check on defendant’s condition. The call was made at 12:30 a.m. and Mohel listened in the Subsequent on conversation. efforts to phone by contact defendant failed because defendant had taken phone off his the hook. Mohel then contacted the Lakewood Police Department, squad. which alerted the first-aid a.m., Mohel, Investigator

At 12:55 Daniel Mahoney, Investi- gator Kurilla, John and a police Lakewood officer entered the defendant’s room passkey. personnel with a Medical at arrived Mahoney 1:10 a.m. Mohel up defendant, and woke vol- who cup unteered that a of large Coke at his bedside contained a quantity Restoril, sleep-inducing of a agent. He stated he that had intended to kill himself but had asleep fallen not had any drunk of the solution. Defendant left the room under his power own hospital and was taken a observation, local where he refused treatment. We address defendant’s motion suppress in the context of those events.

1. Seizure the Envelope begin We analysis our by examining testimony the concern- ing type the of depository which placed into defendant the two envelopes night September Hahn, 27th. the front- manager, desk depository described the used the motel during September open 1984 as “an up box that sat on the contents of that were investigation envelope evidently unrelated the murder and were not at introduced trial. appeared The on two front word “mail” counter” at the desk. depository in similar Mohel described the sides the box. at the hotel at Investigator Mahoney, who arrived terms. a.m., depository that the “rectan- 12:30 testified about * * * that tray, any lid on it and kind gular open without office.” Zahn testified that be for out mail in an would like that had replaced open later box a container motel postal had top, a latch the bottom that the carrier slot on in to retrieve the mail. to unhook order August Investigators Murphy in Mohel and testified attempt they Western Motel to to locate went to Best in open Mohel was in use depository mail testified description, owner September 1984. Based on Mohel’s Both that mail depository mail a shed. the hotel located the replacement by Zilla container described depository and hearing. suppression at the Hahn were introduced evidence support its presented evidence claim defense envelopes present placed in the hotel’s defendant had the two night mailbox, manager open tray. Rokoczy, Paul not an 27th, September stated that the current mailbox at the hotel on have or have to this date. only is “the mailbox that we had cross-examination, Rokoczy acknowl- During is That the box.” Investigator that edged may Murphy have that he told Marshall use, top of mail box then in placed envelopes had the two on the envelope one Rokoczy told him that Murphy testified that addition, in the In the mailman who had would not fit slot. February 1978 hotel since testified delivered the mail the present tray he never seen the mail and that the had only he had ever Defendant also mailbox was the one used. he present hotel’s mailbox as the one used on identified the tape 27th, not September and testified that the cassette was enclosed in a container. rebuttal, Lieutenant that neither the

On Churchill testified envelope Dougherty nor the cassette would fit into addressed mail in the current the slot hotel’s mailbox.

6.6 court, acknowledging conflicting

The trial the testimony, experience matter people noted as a of common “wouldn’t normally be really paying type too much attention what receptacle present.” mail The also court observed that receptacles might both been in use have at the same time. The however, persuaded, production court was the of the mail owner, tray by description the hotel's based on Mohel’s of the 1985, tray August suggested strongly tray that the had been night seized, on envelopes use the were and made that finding. factual on scrutiny Based our own careful record, determination, we the trial sustain court’s which is supported by amply suppression evidence adduced at the Johnson, 161, hearing. See v. 42 State N.J. A. 2d 199 809 (1964). In finding, the context of that proceed factual we deriving consider defendant’s fourth-amendment claims from envelope containing tape seizure of the and the search of its contents.

We first protected consider defendant whether had consti- envelope tutional the words interest on observed Investigator Mohel. proceeded Mohel testified that he to the front desk lobby. night-desk after defendant had left The manager informed Mohel that defendant had deposited two envelopes in box. Mohel then “looked into the box and * * * envelope top observed a white on envelope of another on envelope itself the terminology, had ‘Tobe opened in the ” my event of death.’ He stated that he could see the words picking up without envelope. seeking

One protection to invoke the of the fourth amendment must legitimate establish that a reasonable or expectation privacy by government was invaded action. 735, 740, v. Maryland, Smith 2577, 2580, U.S. 99 S.Ct. (1979). L.Ed.2d depends resolution of that issue person whether the (subjective) “exhibited an actual expecta privacy,” tion of States, 347, Katz 361, v. United 389 U.S. 88 507, 516, 576, (1967) J., S.Ct. 19 (Harlan, L.Ed.2d 588 concur-

67 that expectation privacy of is “one whether the ring), and ” recognize Ibid. prepared to as ‘reasonable.’ society is did an actual defendant not manifest We conclude that in he expectation privacy envelope, subjective of opened mailing and the words “To be exposed the address apparently visible my of death.” Those words were the event observing envelope. It is settled anyone well * * * exposes to the is not a person knowingly public “[w]hat Katz, protection.” supra, 389 subject of Fourth Amendment Thus, 351, 511, find 19 L.Ed.2d at we at 88 S. Ct. at 582. U.S. read Investigator violation when Mohel no fourth-amendment envelope. v. on the outside of the United States the words See (9th Cir.1978) Choate, (finding 2d 165 that sender waived 576 F. on privacy claim names and addresses fourth-amendment envelope). outside lawfully retrieve next Mohel could

We consider whether depository. envelopes from the We are satisfied privacy although expectation defendant had a reasonable see, envelope, v. only e.g., in the contents United States 1652, (1984); Jacobsen, 109, 104 85 466 U.S. S.Ct. 80 L.Ed.2d 1029, Leeuwen, 249, 25 397 90 v. U.S. S. Ct. United States Van 727, (1970); Jackson, 24 L.Ed. 96 parte L.Ed.2d 282 Ex U.S. 182, (1990), (1878); 2d 793 Hempele, State v. N.J. 576 A. a "sei envelopes removal of the nevertheless constituted proper purposes. zure” for fourth-amendment “A ‘seizure’ meaningful ty there interference with an occurs when is some in that possessory property.” individual’s interests United Jacobsen, at supra, States v. 466 U.S. 104S.Ct. (footnote omitted). at 94 L.Ed.2d prohibits The fourth amendment not all searches and only deemed v. seizures but those that are unreasonable. State 230, 233, (1969). Ordinarily, 2d 1 Campbell, 53 N.J. 250 A. property accomplished seizure of is unreasonable unless it is pursuant probable particular to a warrant issued cause Place, ly describing the items to be seized. United v. States 68 696, 701, 2637, 2641, 110,

462 103 S.Ct. 77 L.Ed.2d 117 U.S. omitted). (1983)(citation However, not all warrantless seizures are unlawful: Where law enforcement authorities have cause to believe that a probable container holds or evidence of but have not secured a crime, contraband the Court the Amendment seizure of the

warrant, has interpreted permit pending exigen- of a warrant its if the contents, issuance to examine property, recognized cies of the demand it or some other to the circumstances exception warrant is requirement present. (citations omitted).] [Ibid, Jacobsen, 114, supra, v. 466 at 104 See also United States U.S. 1657, (“[e]ven government at S.Ct. at 80 L.Ed.2d 94-95 when agents may lawfully package prevent seize loss or [a sealed] contraband, suspected destruction of the Fourth Amendment requires they examining before obtain warrant package”); Leeuwen, of such a contents United States v. Van supra, (upholding U.S. 90 S.Ct. L.Ed.2d 282 of envelopes suspicion illegal seizure on based content until obtained). investigation completed and search warrant Thus, validity depends largely of the seizure investigator, whether the State's time he seized the letters, believing envelopes had a basis for reasonable that the pertaining contained evidence to the murder. At the time seizure, investigation narrowed, focus had defendant he suspect. police knew that was a were aware Kraushaar, purchase of defendant’s affair with his of substan life, tial insurance on Mrs. Marshall’s and that defendant had money Jimmy Shreveport. mailed orders to Investiga Davis tors also had discovered that defendant had communicated with spoken Cumber and had “investiga McKinnon about an Although tion.” all of details about the extent defen dant’s involvement with McKinnon and not Cumber had been uncovered, there was sufficient information available to the to justify authorities their of defendant at the surveillance Best Western Motel. inescapable The conclusion is that when Inves tigator possible Mohel read message suicide written on the envelope, outside in the context of the accumulation of murder, incriminating defendant in his wife’s evidence there grounds him envelope were reasonable to believe that the pertaining could have contained evidence to the murder. envelopes We note that contrast to the seizure of Leeuwen, upheld in supra, police Van where the held the envelopes twenty-nine for hours before a search warrant is sued, in this days elapsed case five between the seizure on September 27th and the issuance of the warrant on October circumstances, however, 2nd. Under the which included an intervening weekend and necessity preparing an exten support warrant, sive affidavit of the we cannot conclude the five-day delay unreasonably that was intrusive. That deter support mination draws from the fact that Marshall’s suicide attempt envelope was aborted and the addressed to his brother- opened only in-law was to be in the event of his death. Accord ingly, envelope we hold that the seizure of the did not violate defendant’s rights. fourth-amendment

2. Attorney-Client Privilege Issue Defendant also claims that the envelope mere seizure of the attorney-client privilege, violated the see Evidence Rule Joseph between himself and his Dougherty, brother-in-law a Pennsylvania attorney. suppression At hearing, Dougherty day testified that within a or two after the homicide defendant inquired Dougherty represent potential whether could him in “a Dougherty criminal matter.” told defendant that he could not do Dougherty so. also testified that a on conversation 12, 1984, September he recommended that defendant consider signing power attorney authorizing his son John Marshall sign agreements, checks and real-estate referring specifically possible to the sale of building defendant’s office in Toms Dougherty River. prepared testified that he power attorney 21st, September signed and that defendant init Dougherty’s September office on 25th when stopped defendant Dougherty to see to discuss insurance for Dough- his law firm. 23, 1984, September agreed that on erty also testified he perform research, if legal requested his law firm so would do attorney represent defendant retained to him in connec- investigation. tion the homicide relationship attorney-client To whatever extent an be Dougherty may tween defendant and existed at the time have seizure, unpersuaded we are the seizure of the envelope attorney-client privilege. Dougherty’s violated Pennsylvania attorney Jersey role as defendant’s New trial scope. limited in Dougherty was Neither nor defendant’s trial partic counsel had informed the Dougherty State that would ipate in investigator Marshall’s defense. The who seized the envelope brother-in-law, Dougherty knew that was defendant’s but represented capacity was unaware he defendant in any relating investigation. Although to the may homicide Mohel have aware that the attorney, been letter was addressed to an he not obligated seizing envelope before to determine whether the protected attorney-client letter was a communica tion within context of the Maria Marshall homicide investi gation.

3. Validity Search Warrant 2, 1984, On October the State a obtained warrant to search envelope Dougherty. addressed to To probable establish cause, presented affidavit, the State thirteen-page a which alleged notations, that envelope “writings, that tapes contained any and all other items of evidence will which establish person persons or responsible for the homicide death of Maria challenges Marshall.” Defendant the issuance of the warrant grounds. on several

First, defendant claims that the authority court lacked the issue the search warrant. He relies on a United States Postal regulation, Service (1988), Domestic Mail Manual 115.61 § provides, part, which employee permit shall “[n]o by execution of a search warrant issued a state court and 115.61(b). by served a state officer.” Id. at regulation We note that the on which defendant relies applies only custody postal to letters within the of the authori However, at the envelope ties time of the seizure. if the even custody Service, had been in the of the Postal the federal governing inspection statute the classification and of mail ex pressly permits opening origin of letters of domestic “under * * authority of a search by warrant issued law 39 U.S.C. 3623(d). The statute does limit not search warrants to those judges magistrates. issued federal McCully, See v. State (1982). 64 Haw. 642 P.2d 933 Nor does defendant contend magistrate federal would have reached a different con- probable clusion on presented cause had he or she been with the Thus, identical regulation affidavit. we conclude that the on which defendant relies does not invalidate the examination of the contents of envelope pursuant lawfully-is- defendant’s to a sued search warrant.

Defendant also contends that the search is invalid because probable the warrant was not According based on cause. defendant, nothing the affidavit established more “than a mere suspicion hunch or envelope that the any would contain infor- leading mation identity person(s) responsible to the the crime.” prohibits

The fourth amendment searches are Bruzzese, 210, 217, unreasonable. v. State N.J. 463 A. 2d (1983). A search if is reasonable the State obtains a search warrant magistrate showing from a neutral probable cause. The question affidavit in set forth detailed information strongly suggesting may that defendant have been involved in the murder of his wife. The affidavit disclosed that defendant had having been marital and financial difficulties and was in long-standing involved relationship with Sarann Kraushaar. It stated that defendant had asked Kraushaar if she “knew anyone who would take care of his wife.” The affidavit de-

72 attempts purchase life insur- defendant’s additional

scribed day Finally, before the ance Mrs. Marshall the the murder. Marshall, Cumber, through disclosed that had document ar- McKinnon, revealed ranged hire that defendant had sent money Shreveport payable at least one order to to James Davis. discretionary accord substantial deference to We the resulting in issuance determination the of the warrant. State 116, Kasabucki, 110, (1968). 52 244 .2d101 Based on v. N.J. A circumstances, totality the of the we are that there satisfied probable envelope cause to believe that the contained help identify the evidence would murderer. See State v. Novembrino, 122, 95, (1987). 105 N.J. 519 A .2d 820 also the

Defendant contends that warrant is invalid because Investigator Mahoney misrepresented material facts the affi investigator davit. Defendant maintains that the failed to body in the Dougherty’s mention the affidavit status as an find, However, did, attorney. we as the trial court that the investigator Dougherty’s attorney disclosed on status as an the affidavit, page although first is silent about affidavit any attorney-client relationship Dougherty between and Mar shall. We also concur in court’s conclusion that defendant showing” failed to make a preliminary “substantial that the investigator misleading any included false statements affidavit, either intentionally disregard or with reckless for the Delaware, 169-70, truth. Franks v. See U.S. S. Ct. 2674, 2683-84, (1978). 57 L.Ed.2d areWe satisfied properly that the court concluded that defendant was not enti hearing veracity tled to a determine of the statements in the affidavit.

Nor would we disturb issuance of the warrant on attorney-client relationship basis attenuated between Dougherty Nothing suggests Marshall. in the record investigators either of judge or the who issued warrant any defendant, had basis which to assume that who had already counsel, retained Glenn Zeitz as his engaged also had in connection with his defense. to do research his brother-in-law existed, attorney-client relationship it was an To the extent that undisclosed, ground attacking cannot constitute a and hence search warrant. an otherwise-valid with the trial court’s determina We are also accord Dougher envelope in the addressed to tape that the found tion The court found that the content of ty played could be at trial. performed by tape “unrelated to the services be was investigation of Dougherty in connection with the criminal tape Although acknowledging that the included defendant.” legal requiring attention in the event of references to matters death, concluded, on their defendant’s the trial court based of the communica “personal relationship” and the “content tion,” attempting his that “defendant was to memorialize Dougherty primarily as a thoughts, suggestions and wishes to supports court’s fully friend.” The record the trial trusted that defendant did not sustain burden determination privileged attorney-client relation proving the existence of a Dougherty communicating with ship, and that defendant was relative, attorney. friend and not as an primarily as a trusted (E. McCormick, Cleary 3d ed. Evidence 88 at 209-10 See § (4th 1984); Tedder, 1442-43 v. 801 F.2d United States cf. Cir.1986)(record finding sustained trial court’s that defendant’s co-conspirator intended as attorney statement to related to legal friend and not to personally-involved communication to advisor). view, per Adhering properly the trial court to that tape envelope found in the play mitted the State to the cassette during presentation of its case.

B. Venue 25,1985, County judge conduct- April an Ocean trial court On hearing seeking change of venue. ed a on defendant’s motion newspaper ac- reviewing 3:14-2. After voluminous See Rule newspapers, the local and national counts the murder both family’s prominence court concluded that the Marshall in the right Toms River area threatened defendant’s to a fair trial: in this case has been extensive. The defendant has pretrial publicity segment, submitted a of a news broadcast TV videotape Philadelphia clippings as well as voluminous the station, from Park Atlantic Press, Asbury Observer, as well as a Philadelphia Inquirer Philadelphia Daily News, proceedings of the broadcast from the local television Channel transcript 8, local television station Channel 8.

[********] right jury? is, what about his to a fair and question And impartial there’s another factor for the Court to consider besides the because publicity, publicity the is all over. It not be in Warren or may Hunterdon up County Burlington but it’s all around. It’s in Atlantic County, wherever County, City, the is sold. It’s in those counties below Philadelphia Inquirer Camden, Salem, Gloucester, Cumberland and or wherever the News is Cape May, Philadelphia sold or where the Atlantic Press is sold or where the Park is Press sold Asbury or where the Ocean Observer is sold. County considering There’s another factor which the Court is besides all this publici- publicity going because that is to be there. There ty, in this is, Court’s an inordinate in interest this case on the of opinion, in Ocean part many people who either know Mr. Marshall and his or County, people others who family were involved in the who know case, who know the Marshall people people going And I don’t think It’s family. that inordinate interest is disappear. always there. The case is being being thought talked about; it’s about And enjoyed his constantly. defendant, and others in the have family, case, just a wide not in the acquaintance, Toms River but in the area, Ocean County area. ******** This Court is of the that for the reasons the defendant opinion stated, cannot receive a fair and trial here in the courthouse in Toms impartial River. There is of pretrial but, course, that’s in other publicity, too. There’s the counties, wide of in the acquaintance persons friends in defendant, family, case— general and outside the Toms River community, in the Ocean community, continuing there is And as I said inordinate and County community. before, people case, county interest this in this and I think that’s of different counties, counties, presumably other because in other the Marshalls are known, people not none the other in the case are known. Three of the

four defendants come from outside the state, so not known. And I they’re think it’s in his interest to have the case transferred.

(Emphasis added.) Accordingly, the Court found that there was “a realistic likeli- prejudice hood of pretrial publicity,” from Williams, State v. (1983), 67 n. 459 A.2d 641 N.J. and ordered that the case be tried in Atlantic County. Instead, not

Defendant does contest that he argues decision. appeal for first time on that County Atlantic was not the proper venue his trial because there had been as much publicity County about homicide Atlantic there as had County. Specifically, been Ocean defendant claims that in transferring County, the matter to Atlantic disregard- the court portion ed the fact publicity substantial of the that made County inappropriate Ocean for trial had also circulated in To County. support argument, Atlantic defendant sub- post-trial motion, granted, mitted which sought we supplement following: the trial record pages coverage 1. as Seventy-one trial, newspaper reported by Press;

Atlantic City page detailing A2. the Atlantic circulation four-hundred-plus report City the Atlantic Press, and the City Philadelphia News, Daily Philadelphia from 1984 to 1986; Inquirer describing An Park 3. Press article dated 26, Asbury January 1986, between in similarity defendant’s trial a trial Japan. The sixth amendment of the United States Constitution I, paragraph and article 10 of Jersey the New Constitution * * * guarantee right a criminal by defendant “the to trial an impartial jury.” An impartial jury goes to the very essence of Williams, 60, a fair trial. v. 93 supra, State 459 N.J. A. 2d requirement significant 641. The especially of fairness is in capital cases, 61, 641, id. at 459 requires A. 2d that a defendant jury panel be tried before a not prejudice. tainted Dowd, 717, 722, 1639, 1642, Irvin v. 366 U.S. 81 6 S.Ct. L.Ed.2d 751, (1961). Thus, 755 imposed we have duty trial courts the preserve “to integrity of the danger and minimize the * * prejudice adjudicatory process will infiltrate the *.” Williams, State v. supra, N.J. at A.2d 641. We begin our analysis with a review of nature and extent of the pretrial publicity in County. Ocean earlier, mo granted defendant’s the court

As indicated of its County. In the exercise change from Ocean tion to venue change if it deter discretion, permitted to venue the court was realistic “necessary to overcome the change was mined that a publicity.” v. pretrial from State prejudice likelihood of 2d 641. On this Williams, at 67 n. 459 A. supra, 93 N.J. record, prominence satisfied that defendant’s we are coverage, coupled the extensive local media community, impartial jury. right trial an defendant’s to a before threatened Therefore, not its that the trial did abuse we conclude court try the case in a granting defendant’s motion to discretion Nonetheless, County. defendant’s county other than Ocean further, analysis proceed and that arguments require that our fair trial in Atlantic defendant received a we determine whether County. whether, urges, the trial as defendant

We first consider changed sponte venue from Atlantic court should have sua change can County. make clear that such a be Our decisions is a “realistic granted only if a court concludes that there pretrial publicity.” To deter prejudice likelihood of from Ibid. case, in a prejudice mine a realistic likelihood of exists whether cases in adopted we the federal distinction “between have atmosphere corrupted by publicity that which the trial is so publici prejudice may presumed, pretrial and cases in which be intrusive, extensive, making the ty, is less determinative while publicity impartiality effect of the on the issue the actual 13, 33, jury panel.” Biegenwald, 106 N.J. 524 A. 2d 130 State v. (1987) (citations omitted). It is the rare case indeed which prejudice pretrial publicity presumed. due to will be State v. 225, 269, (1988) (citation Koedatich, 112 548 A.2d 939 N.J. omitted). argue, there Defendant does not nor is evidence suggest, publicity County in Atlantic the record to that the great justify finding presumed prejudice. a so as to See id. 273, Accordingly, apply the “realistic at 548 A.2d 939. we will prejudice” test to defendant’s claim. likelihood of

77 points ninety-seven Defendant out that out of 147 potential jurors addition, had read or heard In about the case. impanelled jurors defendant notes that nine out sixteen knew something about the case from the media. Seven of the twelve deliberating jurors knowledge. had argues similar Defendant statistics, that based on those the court should have excused read, any juror about, who opinion had heard or had an concern ing case, that the failure to exclude such jurors consti disagree. tutes error. reversible We opinion Jurors who guilt have formed an or innocence Williams, of a must defendant be excused. v. supra, State 93 61, at impanelled N.J. 459 A.2d 641. None of deliberat ing jurors expressed opinion, Moreover, had an such however. simply impanelled because jurors some indicated that they had familiarity some does with case not warrant their long recognized automatic excusal. We impanelled have jurors ignorant need not be the facts of the case. State v. 1, 23, Sugar, (1980); 2d N.J. 417 A. accord State v. Koedatich, supra, 112 at N.J. 548 A.2d 939.

Although we address issues to jury related selection else 123-134, opinion, 79-98, where this 586 A. 2d at infra defendant’s concerning encompass contentions also venue specific challenge to the voir dire. Defendant claims that the probe voir juror’s knowledge dire failed to each of the defen argues dant and the murder. jury questionnaire He that the inadequately pretrial publicity, addressed the issue of and main tains that compounded the court deficiency with inconsist superficial questioning ent and jurors of those who indicated they had heard about the case. pretrial publicity preclude

Pervasive not does the likeli impartial hood of an jury. Biegenwald, State supra, v. N.J. at 524 A. 2d 130. To determine the effect of that publicity, required prospective the court juror that each com plete seven-page questionnaire began. voir before dire Three questions specifically pretrial dealt publicity:

78 from 45. Have read in the or information any you newspapers acquired regarding

other news media sources this case? A. Yes_No_ anything 46. If is there have read or heard which would so, you prevent being juror from a fair and in this case? you impartial A. Yes_No_ guilt 47. Have formed an as to the or innocence of Mr. Marshall you opinion or Mr. Thompson? A. Yes_No_ rendering If would that from a fair and yes, opinion prevent you impartial based the evidence and in accordance which verdict law solely upon judge shall to explain you? A. Yes_No_ questioned every juror “yes” court then who had checked any questions. to of the three any juror by find no indication that so

We was tainted pretrial publicity process. as to affect We deliberative emphasize any deliberating juror exposure who indicated pretrial publicity any knowledge also disclaimed detailed juror opinion about case. No seated had formed an about guilt defendant’s and each stated that his or her minimal knowledge during of the case would no have effect delibera- Accordingly, adequately tions. we conclude that the voir dire any impermissible exposure pretrial disclosed publicity. Be- publicity cause we are convinced that the did not affect the jury’s process, change deliberative there was no need to venue sponte County, augment jury pool, sua from Atlantic foreign jury. to use a steps

We also note that the courts below took to ensure that impartial jury. defendant received a trial before an The Ocean court, County obviously publicity gener- aware of the extensive trial, ated newspaper defendant’s ordered that no could publish twenty-five page given by statement McKinnon. The Appellate Marshall, Division affirmed that order. v. State (1985).2 N.J.Super. changed A.2d 1235 The court then 2A violated that order. Pennsylvania However, we believe that newspaper resulting prejudice insignificant. to defendant any County. venue Atlantic Defense counsel did not an raise decision, objection County to that either in Ocean at the time County or in Atlantic any point transfer at later in proceedings. in County,

Once the case was Atlantic the court further protected right through defendant’s to fair trial an extensive 93-94, open-ended dire. at voir 586 A. 2d at 131-132. Infra Moreover, frequently jurors the court ordered the to refrain reading from discussing about case or it anyone. repeated throughout Those instructions were the trial. We find adequately protected those measures right defendant’s impartial jury. trial before an Finally, significant we note the trying differences between in County County. the case Ocean and in Atlantic Neither prominent victim nor County. defendant was Atlantic There was no indication in County the record that the Atlantic commu- nity was hostile or predisposed guilt. toward defendant to his We are convinced there no was “realistic likelihood prejudice pretrial Accordingly, from publicity.” we conclude try the decision County defendant Atlantic was correct that defendant’s arguments contrary are Biegenwald, without merit. supra, See State v. 106 N.J. 35-36, 524 A.2d 130.

III. Jury-Selection Issues variety challenges Defendant adequacy raises a to the the jury-selection process. challenges His fall into three basic categories: jurors that certain should have been excused when bias; their questions answers to dire voir revealed that the death-qualification process flawed in important was several respects; and County jury that the Atlantic system selection We separate- unconstitutional. address those contentions ly- Excused for Cause Prospective Three Jurors Not

A. jurors argues prospective that three should Defendant they opinions formed for cause because had have been excused guilt. Defendant also contends that concerning defendant’s jurors have been excused cause based two of those should relationships profes family on their close with law-enforcement argues that those two particularly, More defendant sionals. finding the testi potential jurors proclivity admitted a toward non-police of a mony police of a officer more credible than that officer, proclivity disqualified jurors those from and that that Although peremptorily chal serving jury. on the defendant challenged jurors, argues he that the lenged all three of the jurors, should have been peremptories “waste” of those who cause, in all of excluded for the context a trial which eventually constituted re peremptories defendant’s were used properly find that the trial court versible error. Because we challenged refusing exercised its discretion in to excuse the cause, venirepersons the we need not determine whether peremptories by in the situation described defendant “waste” constitutes reversible error. questionnaire

Prospective jurors in this case filled out a to during which the trial court and counsel referred the individual- process. questionnaire portion jury-selection ized of the designed expose by requiring potential jurors juror was bias report exposed pretrial publicity, they if they if had been parties, if any knowledge any had of the or other influences might portion ques- impartiality. affect their The final juror penalty. tionnaire related to views on the death (1) Lenora Wilkins

Prospective juror question- indicated in to the Wilkins answer newspaper naire that she had read of the criminal accounts investigation father, of the murder. She also indicated that her husband, officers, police and brother-in-law were and that an- judge. other a brother-in-law was Questioned by trial court about the her expo- extent of to pretrial publicity, sure Wilkins stated that had she read Asbury articles in the Park Press at the time of the murder investigation an jury-selection additional article before the process began. Wilkins Noting that had indicated her an- questionnaire swers to the might material she had read prevent being her from a and impartial juror, fair trial court probed for initially evidence of bias. Wilkins stated that she newspapers truth,” took what she read in the for “gospel however, acknowledging, she should base her conclusions on the evidence. She indicated that when she had-read the ,his papers, “automatically” she assumed that defendant and guilty, inquiry co-defendants were but further court open revealed that her mind a fair consideration of the evidence: What do it have mean, would to be the evidence? Q. you jury, guess A. ifWell, I was on the I what I picked had it would heard, just turn which I want don’t It is I probably way you it, know. what read in the you’re only hearing story newspa- one side you know, papers,

pers. Which side do think heard Q. you in the you newspapers? A. How do mean? you You hear one side in the Q. say only you newspapers? guilty. A. When I read I said he was newspapers, You did? Q. A. Yes. guilty guilty or Now, whether not a defendant is not Q. question charge has to be based the evidence to be upon trial. No presented

evidence has been presented yet. A. Yes. charged The fact defendant is with a crime Q. is not evidence of his guilt. Right.

A. feel Now, do that the Q. formed when read you you about opinion you going case this is affect to to decide the issues on your ability the evidence that would hear trial? you A. No, I would an no, mind. keep open So that the fact Q. formed an at the despite you opinion time, do you disregard ignore feel could set aside that you it, and opinion, it, proceed anew, so to speak, with a mind? open A. Yes. Listen to the evidence in the case and based on the decide, evidence, Q. guilty? the evidence whether the State has the defendants alone, proven A. I would think so. Yes, added.) (Emphasis uncertainty ques- demonstrated some initial Wilkins when potential tioned about for bias based on her views of the credibility agents: of law-enforcement feel Do would believe the version of the Q. you you automatically police

officer over the other person? A. I would say yes. You would? Q.

A. Automatically, yes. Subsequent questioning juror established not predisposed believing police to conflicting where there was testimony lay from a witness: The what did Q. is, John Jones The officer said John question say? police said

Jones and another witness I was I so-and-so, no, there, and heard John says something testifying Jones are each else, from their say they memory. according according to what he and the other police officer, says, person, testifying what he are from their as to John says, what Jones said. memory A. Yes. Do feel would the version Q. you you automatically accept police officer as the truth over the other person? case like this. This is a A. I don’t think I in a trial. No, would I would be hearing things, things other and it would be a too, combination of to fit in. Just as to that one fact? Q. particular A. INo, don’t think so. What was do think would Q. said, believe the version you you automatically, of a officer? police A. INo, don’t think I would in a case like this. requested After defense counsel probing a more inquiry of potential juror’s police credibility, attitude toward the fol- lowing exchange place: took getting against Q. Now, back to officers other when it police comes people * * * something the situation like I talked said, about before do you you feel would tend to you believe one or the other in that automatically situation? guy saying thing, A. I don’t know if if—well one is one officer, police guy saying thing, and another is another have to hear what went more you on, being brought stuff in, decide. saying thing What are if Q. is one said one you and another said another, would telling have to hear all the

you evidence and then decide who’s the truth? A. IYes, would, yes. After the second round questioning, defense counsel chal- lenged potential juror’s fitness to serve. The trial court concluded, however, juror was fit to serve.

(2) Annmarie Smith juror Potential Annmarie Smith indicated that she had read newspaper accounts of the Marshall murder and had talked to co-workers newspaper about those accounts. She testified that she had opinion formed a tentative concerning defendant’s guilt, opinion but stated that that ability would not affect her decide the issues in the case based on the evidence. Defense requested counsel questions additional on the publici- extent of ty to potential which this juror exposed, and the trial court undertook that questioning. In responses her question to a whether opinion her initial would intrude on her deliberations case, potential juror Smith stated: I would trust not. INo, don’t think so. I I I mean, don’t. mean I am really * * * looking

accustomed to considering things [cjoming and problems conclusions from what is and I there, don’t think it but I honestly would, don’t know. That is the I feel at the moment. way You don’t think Q. it would. honestly You don’t think that what honestly heard at going the time or what you read at the time isn’t to affect you you? A. No anything because at the no, I didn’t time, know about really it, you know for the that I read in except story as I I would newspaper, and, said, not make certainly decision on for in a any that, casual as except manner, very in a you say, that’s conversation, about all. yet When asked again whether she impartial, could be she responded thoughtfully: might Some Q. "I people couldn’t be fair and say, and if impartial,” they said that, walk out of here they and we excuse them. Thank you very much, and that is what would if happen too, felt that you, you couldn’t be fair you So, that is impartial. we want an honest why answer. A. It is a terrible I couldn’t temptation no, be fair and say impartial, just

then I forget could walk thing, right? out of here and about the whole You could. Q. A. But I’m to be under and I supposed oath, think I could honestly make a decision on the evidence, I would yes. want to make a decision on the evidence, because judge it is unfair to certainly terribly actual people any process anything like

publicity that. express

Defense counsel continued to reservations about the juror, potential questions but the trial court ruled that no more permitted: would be right. argument All While I’ve considered the of counsel. This has person been I listened have to her answers. She is an questioned extensively. intelligent I have also observed her demeanor, and her person, obviously. attempting demeanor is such that she to be sincere, appears frank, honest, answer the to the best of her and as far as I’m questions concerned, ability, nothing there is else to ask I her. don’t think it is on a proper impose asking give guarantees anything them to to the That

venireperson by court. is not the in which are to be way persons questioned. challenged Defense counsel then juror and the trial court “[Cjonsidering ruled as totality follows: of her testimony, * * * demeanor, her there is no her basis excuse for cause at this time.”

(3) Nora Bader juror Potential Nora Bader indicated in answers on her questionnaire that she had papers read about the case in or had gotten information about it from testimony the media. In her she confirmed that she had read that the might “husband have involved,” been but she stated that she could decide the case impartially. juror This also indicated that she had relatives who testified, however, worked law enforcement. She that fact would no ability have effect on her juror: to serve as a THE COURT: Do because of feel, you your officers, relationship police

or for give weight other would tend to any reason, more to the you of a law-enforcement testimony because of his or her officer, status as a simply law-enforcement officer, than to another person? THE JUROR: I would like to think that I wouldn’t. And to the best of my give I wouldn’t more ability, credence to one than the other. I have to be I honest. wouldn’t know.

THE COURT: You don’t know?

THE I JUROR: don’t feel that I would.

THE COURT: You don’t feel would what? you

[********] THE JUROR: I don’t think I would favor one above the because of other, myself. THE And COURT: feel could evaluate the you you of a law-en- testimony forcement a officer versus officer non[-]law[-]enforcement fairly impartial- without bias or favor of one or the other? ly, THE JUROR: I I think, sir, could. right. being THE All COURT: Do think ma’am, the wife of a you police just chief would cause household you problem your [were] you, guilty. to be a member of the example, returned a verdict of not they Would that cause do think? you problem, you THE JUROR: No. questioned Defense counsel whether Bader’s answers about potential unequivocal. bias were engaged The trial court in a questions. second round of portion of the voir exami- dire relating potential nation to the for bias following: includes the THE COURT: Well, had a situation in suppose you which a officer police testified one and another witness way, testified another way. THE JUROR: That’s what asked me. you THE COURT: And the indication was that it had to be a lie. had Somebody lying. to be

THE JUROR: Um-hum. THE COURT: And said to it’s suppose you well, hard to tell yourself, pretty lying. looking listening who’s both to from They appear be, them and to telling lying. them the truth. But I have to decide which one is Do think you juror: you —the saying THE JUROR: I understand what now. you’re go THE COURT: Do think that you with the officer? you’d police THE JUROR: No. No. Not necessarily.

THE COURT: You think could either you way. objective I told I [THE would be I JUROR]: you about it. would. certainly Defense challenged counsel potential juror for cause but the trial court qualified found her to serve.

We principles guide have set forth trial courts selection of death-penalty juries Williams, supra, 39, State v. 93 N.J. 459 A .2d 641: Under the Sixth Amendment of the United States Constitution and Art. I, par. 10 guaranteed of the New Constitution, criminal defendants are “the Jersey * * * * * *

right jury.” trial an by impartial securing jury goes of an to the preservation essence impartial very Sheppard Maxwell, v. of a fair trial. See 384 U.S. S.Ct. 1507, 86 333, 362-63, Texas, (1966); 16 Estes v. 1522, L.Ed.2d 620 381 U.S. 85 S.Ct. 600, 532, 1628, 14 (1965). 382 U.S. L.Ed.2d reh. S.Ct. 15 L.Ed.2d 118 543, 86 den., 875, 18, It has long recognized been under the federal constitution that a defendant is entitled jury to a according that is free of outside influences and will decide the case

86 arguments the evidence and in court in the course of the criminal presented Colorado, trial itself. Patterson v. 205 U.S. S.Ct. 27 454, 462, 51 556, 558, (1907) (Holmes, J.). L.Ed. 881 879, recognized The courts in this state have that under the State Constitution, right jury Art. of a defendant I, 10, be tried an is of par. impartial significance. We have stressed that the exceptional triers fact repeatedly ” must be “as ‘as the lot of State v. will admit.’ nearly impartial humanity Singletary, (1979) (quoting Jackson, N.J. 80 62 State v. 55, A.2d [402 43 203] (1964), Jersey, N.J. cert. den. sub 158 nom. Ravenell v. New 148, A.2d [203 1] (1965)); id., U.S. S.Ct. 13 L.Ed.2d 512 379 85 80 N.J. at 70 982, 690, A.2d [402 (Clifford, dissenting); (Handler, id. at 74 dissenting); 203] J., A.2d [402 203] J., Kozlov, see In re (1979); Wagner, N.J. 79 State v. 232, 239-40 A.2d [398 882] N.J.Super. (App.Div.1981); 180 567 see 564, A.2d also N.J.S.A. [435 1190] (implementing legislation 2A:78-1 to impanelling -9 intended to ensure the jurors). This impartial fairness —and requirement particularly impar heightened in cases in which the tiality, defendant faces death. The death —is See, e.g., categorical is a for trial Beck v. Ala

penalty fairness. imperative bama, (1980); U.S. S.Ct. 447 2382, 2389-90, L.Ed.2d 625, 637-38, 100 65 403 392, Jackson, supra, Mount, State v. at N.J. 43 State v. 30 N.J. 156 A.2d [203 1]; (1959); Wynn, 213 State v. 195, A.2d N.J. [152 21 271 343] A.2d 264, [121 534] (1956). So is the in the important quality trial of criminal impartiality prosecutions jurors guilt who have formed an as to the or opinion innocence of the Duyne, defendant must be excused. See State v. Van 43 N.J. 386 369, [204 (1964), cert. (1965); A.2d U.S. 85 S.Ct. 380 1359, L.Ed.2d 279 841] den., 14 Kozlov, supra. In re juror if it is-demonstrated Only that “the can aside his lay impression and render a verdict based opinion the evidence upon in court” presented will grounds extraneous to the facts not be exposure automatic disqualification. Sugar, Florida, State v. (1980) (quoting 231, N.J. 84 A.2d Dobbert v. [417 474] 432 U.S. 282 (1977)); Conyers, S.Ct. L.Ed.2d State v. [97 58 N.J. 2290] (1971); Trantino, 143-44 also State v. A.2d see 45 N.J. 37 [211 [275 721] (1965). A.2d 193] [Id., at N.J. 459 A.2d 60-61, 641.] In subsequent stage of Williams case, emphasized we the broad discretion afforded trial carrying courts in jury- out processes: selection Voir dire and procedures standards are within the traditionally broad discre- vested in the trial

tionary powers court and “its exercise of discretion will not be disturbed ordinarily on appeal.”

[********] supra, approach ^[123] On at 256-57 reviewing to the N.J. at 35-37 problems [524 A.2d 188 capital [524 death A.2d voir dire (1987) qualification 130], ], we found in each and proceedings State v. and pre-trial Ramseur, State v. in case the trial court’s publicity supra, Biegenwald, entitled to N.J. 106 weighing Ramseur deference. We further noted sensitive “[a] juror’s must be made the trial court in its of a entire by duty appraisal response juror prejudgment of whether has shown bias or to resolve the question * * N.J. at 257 A.2d It has also been observed that this [524 188]. voir dire far from the realities of the court is too removed” “perhaps the nuances concealed a “bloodless deference record”; therefore, appreciate by the trial court is usually prudent. (1988) (citations v. 113 N.J. Williams, 550 A.2d 1172 [State 393, 410-11, omitted).] According perception due deference to the trial court’s potential jurors testimony, demeanor of the and their we find qualify there was no error the trial court’s decision to Wilkins, Smith, jurors potential and Bader. Qualification

B. Neil of Juror Marzano challenges

Defendant also the trial court’s decision qualifying juror participate juror. Neil Marzano to as a Defen incapable fairly evaluating dant contends Marzano was testimony of the witnesses at trial because a relative worked in'law enforcement.

Marzano’s voir-dire examination that he had indicates never anything appearing heard or read about the case before for the jury-selection process, nor he had known that the case was pending. questions questionnaire his Trial-court based on an- employed swers disclosed that his sister was as a sheriff’s Mays Landing, transportation officer in that her duties included prisoners, job for or that she had held the four five years. questionnaire Because Marzano had not answered the inquiry give testimony on whether he would of a law-en- special weight, forcement explained officer the trial court at length possibility present- of a conflict in the evidence to be ed trial agents between versions offered law-enforcement whether, and civilian The court then asked because witnesses. enforcement, any Marzano had a sister in law other reason, testimony Marzano “would have to believe officer, person?”, law-enforcement rather than the other Marza- answered, no following exchange “No.” The ensued: feel

THE Do that COURT: you way? THE No. JUROR: THE Do feel that could evaluate of witnesses testimony COURT: you you light in a of that in the of common sense and all the other situation type evidence on the case as what the truth was? THE JUROR: No. added.) (Emphasis questioning

The court then on to another moved area questions. juror then round voir ended initial dire attorneys was then asked to leave the courtroom while the questions. for further offered areas negative Defense counsel made no reference to Marzano’s concerning ability weigh answer evidence and find Instead, request the truth. defense counsel focused his for questions on possibility additional had that Marzano heard from his sister that defendant was at that in custody: time Honor ask them he could whether or not has had discussions Perhaps your any his in either sister or the sheriffs office or anyone form, any way, shape about either of the defendants, without into the fact getting may they

either be in there or at one time been now, have there some custody point. In other I —that’s concern. If or words, he, another, one reason my only right their knows of status then an now, that, turn, have may impact figure influence him some fashion. if could out So Honor your way frame a to ensure the fact that he comes into this with the case same question knowledge lack of as I’d else. like Honor to do if everyone that, your you could. courtroom, When Marzano reentered the the court asked designed questions several to reveal whether he had had discus- any personnel sions with regarding law-enforcement the case. not, When he answered that he had obey and that he would an court, any conversations, instruction not to have such objection counsel, without qualified from defense found him prospective juror. continue to serve as a argues negative Defendant that Marzano’s answer to the question concerning his ability fairly to evaluate the evidence and to disqualified determine the truth should have him aas juror. find negative answer, We isolated especially in context both the trial court’s and counsel’s lack total response, inexplicable. assuming is Even transcript that the answer, however, that isolated accurately Marzano’s reflects in the context of the entire voir response, considered when dire, to juror that the was unfit serve. does not demonstrate Qualification Death

C. jury qualification of the argues Defendant that the death important respects. Defendant’s first inadequate in several to preliminary the trial court’s instructions contention is that position put potential jurors “in the jury improperly the legal requirements to serve determining [they] met the whether Williams, 550 A. 2d 413, supra, 113 N.J. at State v. jury.” on a omitted). (footnote Preliminary Instructions 1. trial court in procedure followed jury-selection orient- began gave preliminary, trial court

this case when the court ing jury pool. In that instruction the instruction to the following made observation: jury different I am sure that members of this have widely opinions [with panel the death to the Some of believe that penalty death penalty]. you may respect regard. in that what evidence is should never be no matter presented imposed should be others believe that always Conversely, may capital punishment guilty believe a defendant who is found of murder. Others may imposed upon not in others. Some of the death is in certain instances and penalty proper subject. not have formed on the may any opinion you serving Having from of these views does not necessarily disqualify you any jury if view is so broad and in this case. You are your only disqualified the close of the trial with held that will not follow instructions at my firmly you guilty guilty, or if found is to be found or not to whether defendant respect guilty, is to whether the death be imposed. penalty if In views about the death short, disqualify you only they your penalty duties as a or to would substantially impair your ability perform your prevent juror and follow instructions. my Williams, supra, 113 N.J. .2d In 550 A we expressed concerning propriety of an “serious reservations * * * * * * effectively juror what an instruction tells a process to automatic during qualification swers the death lead In responses avoid excusal.” that case the excusal what instructed the as follows: court In about a death if cause short, views your penalty disqualify you only they you regard vote one or the other without to the to evidence automatically way my guilty is or as whether a instructions as to whether defendant death penalty to be is imposed.

{Ibid.] case, offending

In this instruction contained a some what-less-explicit disqualification reference conditions Although the instruction in than Williams. we continue to any strong reservations that suggests have about instruction prospective jurors disqualification the conditions for in advance examination, of their voir we dire do not consider it to be venire, reversible error instruct as trial did court here, jurors who cannot follow court’s will instructions qualified be to not serve.

2. Questioning Qualifi- Limited Individualized on Death

cation principal argument Defendant’s concerning qualifi- the death jurors pertains of adequacy generally cation to the the of questions prospective jurors court’s to about their views on penalty. challenges death Defendant the trial court’s failure to potential juror thorough ask of each probing questions juror’s about that concerning attitude penalty. death jury began, Before the selection defense counsel stated that preferred death-qualification he to omit all questions from jury-selection process he questions because believed that such conviction-prone to a jury. led He argued, relying then on the Eighth opinion Circuit’s in Grigsby Mabry, v. 758 F.2d 226 (1985), McCree, rev'd nom. sub Lockhart v. 476 U.S. (1986), S.Ct. 90 L.Ed.2d 137 prospective that to exclude jurors opposed to the penalty guilt death phase from right violated impartial defendant’s jury. Consequently, an defense proposed jurors counsel those ordinarily excluda- through ble cause qualification qualified death be for the guilt phase penalty phase If trial. necessary, were counsel proposed jurors replaced that those by death-qualified ju- be sit as rors, guilt phase, who would before the also selected counsel asserted guilt phase. Defense during the alternates try capital way to proposed was the “fairest the method case.” motion:

The trial court denied the it is because I believe motion, appropriate question I will deny subject their would jurors regarding of whether views their views on the them whether their views would compel them to vote for that compel penalty, against affect whether their views would substantially vote that penalty, guilty guilty or not or the to either decide question their ability impair event that do return would be they of what imposed punishment question guilty. the motion. therefore I will deny a verdict of So selection, counsel reit- day defense After one full jurors violated his qualification of his view that death erated reduce the asserted impartial jury. To right client’s to an qualification limit death impact, counsel moved to prejudicial counsel, with jurors. Specifically, defendant’s potential the trial Thompson, sought to have of counsel for concurrence regard- questions rely prospective jurors’ answers court questionnaire in the they appeared ing qualification death as questioning individual distributed before the that had been argued: began. Defense counsel pertaining page appearing are three on the last questions On the questionnaire, juror’s even least, In the to a views on capital punishment. past prospective juror would be consistent answered in a fashion which if the prospective jury, being still to some on this Honor has explored to serve your qualified regard to that at least with in this area. is extent their views My request be are such that would they if the answers to the questions further panelists, Honor not any I ask that answers, inquire virtue of their your qualified by I feel it serves inasmuch as only further into their views on punishment capital beginning objected highlight that I had to in the very further the area that to with death deals qualification. State, request from the the being objection to this There no strategic determina- make the permitted the defense to Court those potential jurors to qualification death of tion to limit the Accordingly, during questionnaire. in the questions printed dire, additional the trial court conducted of the voir balance in event that a qualification only the questioning on death his or her questionnaire in potential juror indicated the 92 might juror’s ability penalty impair on the death to

views the follow court’s instructions. by person may

It is no a now well settled that serve on capital a whose the concerning penalty in case views death substantially prevent impair performance of his “would the his juror duties as a accordance with his instructions and Williams, supra, 113 N.J. at 415, (quot A .2d 1172 oath.” 550 Texas, ing Adams v. 38, 2526, U.S. S.Ct. 45, 2521, 448 100 65 581, (1980)). juror L.Ed.2d 589 To discover attitudes concern penalty strong position the taken ing death we have in favor open-ended questioning: of individualized complex important, qualification the delicate the Given and nature of death process, thorough by searching inquiry there can be no substitute for the concerning penalty. trial court into each individual’s attitude the death An important ingredient inquiry open-endedquestions, in this the use of is which opinion likely provide insight our are most counsel and the court into juror’s opinions and biases. 413, 113 N.J. at 550 A. 2d [Id. 1172.] dire voir proper Our views on the of administration the however, process, like proper our views on the administration concerns, death-penalty have, first, other from the been degree seasoned deference defense counsel’s strate- Hunt, Thus, State v. 115 N.J. gic decisions. A.2d 558 Williams, (1989), year decided one tempered after we our indispensability open-ended questions view on the during voir dire: death-qualification rely leading questions, We continue to believe that trial courts should not questions give potential jurors opportunity should but formulate to air Here, penalty. kowever, their views on the death counsel declined defendant’s opportunity request questioning object did not further Furthermore,

jurors’ qualifications. relatively limited voir dire of [cer- * * * jurors questioning does not indicate tenor tain] of the trial court’s jurors. Although began death-qualification inquiry by other court often simply asking juror automatically against whether the would vote for or penalty murder, generally pursued death if a defendant was convicted of it an * * * response questioning. Although affirmative with more detailed the voir may perfect respects, dire not been have in all we it are satisfied that was jurors’ sufficient to counsel enable and the court to evaluate fitness to serve. (emphasis added).] [Id. A.2d

93 Moreover, cases, strategic except in the most extreme decisions by present grounds not made defense counsel will reversal appeal: * * * defendant the trial court to take a certain course of “The cannot request and take his chance on the outcome of the action, court, upon adoption by sought urged, if unfavorable then condemn the he and trial, and very procedure claiming prejudicial.” State v. N.J. it to be error and 19 471 Pontery, 457, [117 (1955). grounds justify To on the an error, A.2d reversal invited 473] egregious must show that the error was so as to “cut into defendant mortally * * rights his substantive (1987) (citing v. v. N.J. State 106 524 A.2d 188 Ramseur, 123, 281-82, [State (App.Div.), 65 denied, 319 A.2d 771 Harper, N.J.Super. 270, 277, certif. (1974)).] N.J. 325 A.2d 708 presented

On the facts it is clear that counsel twice requested qualification prospective a limitation on the death occasion, selection, jurors. On the first before the start of sought jurors opposed permit defense counsel to to the death guilt penalty participate phase. in the When that motion denied, requested qualification defense counsel that death questions jury questionnaire, except limited to those on the be respect jurors questionnaire to those whose answers were unsatisfactory. object, court When the State did not the trial granted request the motion. It is clear that defense counsel’s strategic attempt was a juror exposure well-considered to limit questions concerning capital punishment. We continue to believe that far the course is better potential jurors “thorough searching all in submit quiry by the trial court into each individual’s attitude concern Williams, ing penalty,” the death supra, 113 N.J. at advantage complete thorough A. 2d 1172. The of a investi gation juror’s concerning of each individual attitude the death penalty guarantees complete that it is record on “which to apply granting denying excu Adams/Witt standard However, sáis for cause.” Ibid. we do not conclude that a trial decision death-qualification court’s to limit individualized error, inquiry necessarily constitutes where that decision is the strategic request by result of a and informed defense counsel. us, theOn record before we hold that the trial court’s decision grant request qualification defense counsel’s to death to limit respect jurors to questions to those whose answers the questionnaire acceptable, on printed the were if was it all, sufficiently “egregious at not error ‘cut error was as to * * ” mortally rights into substantive *.’ Rams [defendant’s] eur, supra, (quoting 106 N.J. A.2d 188 v. State 270, 277, Harper, N.J.Super. (App.Div.), 319 A .2d 771 denied, (1974)). 65 N.J. 325 A .2d 708 certif. specific also of death-qualification We note the lack interrogation during sharp the voir dire stands in contrast to patient trial court’s and methodical conduct of the overall jury-selection process. With few exceptions, but the trial court consistently repeatedly acquiesced and in defense counsel’s reinterrogate requests jurors to prospective specific about sub- jects. The of thorough trial court’s conduct was voir dire meticulous, painstakingly responsive and and was to counsel’s scope inquiry specific subjects concerns that the re- about quired amplification. Particularly striking illustrations of willingness court’s reopen supplement trial the voir dire process to defense address counsel’s concerns can be found in interrogation prospective jurors Wilkins, Gibbons, Wein- Hudson, er, general and Fox. The responsiveness trial court’s during suggests counsel’s concerns the voir dire scope questioning relating qualification to death have would far been more extensive had defense counsel evinced a desire pursue that subject thoroughly. more Opposed

3. Excusal Jurors Penalty to Death allegation Defendant’s concerning final of error death-qualifi- is cation based excusing trial court’s for cause three potential jurors who indicated that their concerning views penalty prevent substantially death would impair per- formance of jurors. Specifically, their duties as defendant argues jurors that the three so excused not in did fact hold incompatible death-penalty on a that were with service views jury. expressed juror Corrigan Robert the view

Potential against penalty. always I he was “an advocate the death sought explore the court further his have been.” When view, exchange following occurred: length have of time have When for what you been, you Q. say you always that view?

held college criminology I and familiar with the literature, A. professor taught college I I in fact for when was a students, many years my against reasons, the death ethically. penalty many morally, professor, Did if were of the that would a member Q. you feel, sir, you you against if matter the that were the no what evidence issue, vote death penalty, regard? in that was presented I think A. so. And think do mean sir? that, when what

Q. say you so, you you against the death A. I think that I would have vote penalty. Can of circumstances under which would vote for you conceive Q. you any it? A. I can’t of conceive any. conjure If in the most horrible of crime and type could mind Q. you up your the same would think that view would still be and would murder, you your you for it?

not vote for it. A. I think so. I think I would have to not vote preliminary exchange, the the basis of that State moved On Corrigan penalty on the death have excused because his views substantially performance juror. a would interfere his as sought questioning further to establish wheth- Defense counsel views, er, juror spite in of his could follow the court’s juror. if court instructions he was selected as a trial describing agreed questions. to ask After in detail the further penalty phase; again in trial court asked process involved court, Corrigan he could instructions of the whether follow knowing findings might Corrigan of his be. what the results responded not that he could follow such instructions. The following exchange ensued: think that mean When don’t does there is some Q. you you could, say you in mind?

uncertainty your through A. I have never been this You Yes, know, before. one’s process thing. are one When are is convictions tested have they never reality, they right strong against been tested. now I have convictions really But, death I and I don’t think could in the the death penalty, put myself position impose doing. is In what I would reality be penalty. answers, On the basis his the trial court found “as a matter fact, having him, him heard and listened to his views clearly substantially impair ability would his to follow the Therefore, juror instructions of Court.” was excused. reviewing this voir dire transcript After testimony, we conclude that there no in error the trial court’s exercise of excusing its potential juror Corrigan discretion for cause. juror Potential expressed Michelle Denise also Hart significant ability doubts about her to follow the court’s instruc phase. Moreover, penalty tions also Hart had some difficulty in understanding process procedures involved death-penalty During portion cases. of her voir dire testimony death-qualification, that dealt with she seemed at question first penalty phase confuse the with the however, guilt. When, determination of she was asked whether she could guilt make determination based on the instruc court, answered, “Yes, tions of the she to a certain extent”: What do mean to a Q. you certain extent? something IfA. it comes down to the chair or like know. that, you The what? Q. anything. A. The electric chair or I can’t hear Q. you. The murdering A. electric chair, them. know, I can’t make a you decision

on that. I am not sure what Q. mean that. you by guilty, A. You if know, a is then send person them to the chair they whatever. I can’t make a decision on I that, because don’t feel it like is my to murder else. place somebody telling Are me then Q. that do you you not believe in the death penalty? Right. A. I mean for not me. I’m not— right, All Q. feel that if to you had make you a decision, would you never vote the for death penalty? I bothering A. don’t think because it be so, would me the rest of life. my Is this a belief that Q. have had for you a while? quite gave religion, me that if and it seems like to you I am a bit into A. quite that it is like done it to the death you the death chair, penalty, somebody get do the never nowhere. You do it to this but so not person, you why person, just revenge, it sounds like to me. It is like to another know. you same person, forgiving going I like I’m to do it to am more done it to some, you. You justice, as far as death— and I do believe but to a certain extent, person, saying vote for the death then that would never Are you personally Q. you for somebody? penalty Right. A. the court determined foregoing testimony, on trial Based * ** ability to juror have the understand this “doesn’t matters, also, quite apparent me that her view it is these from prevent such that it would her penalty on the death is * * Therefore, following of the court the instructions We find no error court excused Hart for cause. trial determination. trial court’s juror Scanny indicated that he would

Prospective John any penalty death under circumstances. not vote for the questioned him: court right. a member of the and the issue were whether All If were Q. you in the case of would murder, always death had be you penalty imposed against the death

vote penalty? * * * go I Your Honor I I would if can further because, on, A. believe Yes. Q. I it. know —if to, I’d be about I wouldn’t be able you A. too conscientious voting I I make a had for me don’t think could it, to die had say person judgment. which defendants do think there are kinds of cases in any Q. Okay, you the death deserve penalty? like I to be the one to A. As I wouldn’t want cases, but, serious yes; say, who’s to die. say saying, regardless sir, Are of what person Q. you you penalty would — jury, might vote, would —and had to if were on deserve, you you you you against there, forced be would vote it? were you Yeah. A. No matter what the circumstances? Q. right. A. That’s foregoing testimony, requested

Based on the State Scanny counsel potential juror be excused for cause. Defense juror. Emphasizing the use of the attempted to rehabilitate juror, requested counsel “conscientious” defense word develop juror hypothetical ques- that the trial court not tions related to “whether or he feels he could follow the * * * ” and what type Court’s instructions “into of cases” court, however, penalty. deserve the death The on relied not, Scanny’s regardless answer that he could of the circum- stances, found, penalty, listening for the death vote “after observing him,” to this witness that “his views would obviously impair ability to his vote for the death penalty.” Therefore, Scanny serving jury. court excused from on the Although interrogation might further enlightening, have been we find no error in the court’s of juror. excusal this It is the position trial gauge potential court that is the best juror’s demeanor and determine juror whether that is fit to serve. defer judgment We to the court’s exercise of in respect juror Scanny. Constitutionality County

D. Jury Atlantic Sys- Selection

tem plain Defendant raises as error the contention that the Atlan procedures tic County petit jury selection of the venire deprived representative pool him of to which he was constitutionally rejected argu entitled. We considered and 439, 467-69, ment in Long, State v. 119 N.J. 575 A .2d 435 (1990), ruling and adhere to our in that case.

IV Guilt-Phase Issues Photographs A. challenges evidence,

Defendant the admission into over trial, objection defendant’s of six photographs crime-scene (Exhibits S-ll) through (Ex S-6 autopsy photograph and one S-21) hibit ground they probative no had value and were inflammatory. photographs depict crime-scene vari ous body lying views the victim’s on the front seat of Cadillac, photographs defendant's two revealing close-up views entry the bullet exit and wounds. The victim’s blood was

99 autopsy photograph, The photographs. in several visible face, breast and image the victim’s from the cropped to remove trial in arm. The wound the victim’s re-entry bullet shows the photographs impact of court, acknowledging prejudicial the crime, that the crime- determined victim of depicting a deceased inflammatory and particularly not photographs were scene testimony police officers concern- the tended to corroborate Al- crime scene. body at the of the victim’s ing position the photographs offered autopsy five excluding two of the though probative, the trial inflammatory and not they were because medical exam- S-21, by described the which was court admitted arm. re-entry in the victim’s the wound portraying iner as rulings, arguing that because challenges these Defendant uncontested, was gunshot wounds death from victim’s probative of photographs was not crime-scene of the admission of all of the prejudicial effect dispute, in and that the any issue from evidence. their exclusion photographs mandated general rule is that “the of the trial [283 absence of by prejudice exclude evidence if he finds [State the risk that its admissibility A.2d 513 v. or of palpable court, Rose, (1971)]; confusing and the admission will photographs abuse.” N.J. see also Evid.lt. exercise of its discretion will 454, 535-36, that its State issues or * * * of the victim of a probative v. Thompson, (b) 548 A misleading create a substantial (“the judge value is substantially .2d 1058 supra, crime rests in the discretion not be reversed (1988).] jury”). may ^[396] N.J. 59 in his discretion danger outweighed of undue at 420 in the they persuades us that photographs disputed of the Our review although conclude that unduly inflammatory. We also are not limited, court acted well within is the trial probative their value concluding they in were permissible discretion the ambit of testimony of corroborating the purpose relevant for physical testified detail about witnesses who State’s likeli- perceive significant no crime scene. We evidence at the danger created a photographs of these hood that the admission Accordingly, hold that their jury. we prejudice undue to the an abuse of by trial court was not into evidence admission 4. discretion. Evidence Rule See challenges Defendant also the admission into evidence photograph depicting of a a metal rod inserted State Police Detective Charles Liber into the bullet hole in the front seat of automobile, and through defendant’s downward the foam rub ber seat to the location the floor board under the seat where spent purpose probe found. The bullet was of the metal photograph “angle” shown was to demonstrate the point discharged. bullet from the which it was Detective Liber, expert, acknowledged who not a ballistics that the passed bullet’s course could have through been deflected as it body. us, Both the victim’s at trial and before defendant the photograph contends that was inadmissible because Detec expert tive Liber was not an qualifica therefore lacked the testify concerning tions to trajectory. the bullet's The trial photograph court ruled that the was admissible because it portrayed visually physical by the facts described Detective view, testimony. Liber’s In our challenge defendant’s to this weight exhibit related to its and not to its relevance. findWe . no in ruling. error the trial court’s Admissibility B. Hearsay by of Statements Robert Cumber At the of outset co-defendant testimony, McKinnon’s direct objected grounds defendant on hearsay any by references McKinnon to out-of-court by statements made to him co-defen- dant argued Robert Cumber. The testimony by State that such McKinnon 63(9)(b), was admissible under Evidence the Rule co-conspirator so-called exception. generally See State v. Phelps, 508-13, (1984) 96 N.J. (setting 476 A.2d 1199 forth determining standards for admissibility co-conspirator’s of hear- statement). say represented After the State that it would establish the of conspiracy existence the in trial, the course of the trial court overruled objection, .observing defendant’s that the required State was not to offer all of its evidence of the conspiracy in advance the admission evidence of Cumber’s statements. case, moved to defendant of the State’s

At the conclusion contending that indictment, conspiracy count of the the dismiss participation prove either failed to Cumber’s had the State coincided with conspiracy’s duration conspiracy or that the the trial Responding to alleged in the indictment. period defendant, de- clarify sought relief request to court’s grant going not your Honor is stated fense counsel “[i]f indictment, probably then we’re remedy dismissal of the concerning [testimony from the record to have stricken entitled hearsay Cumber’s statements].” conspiracy the motion to dismiss trial court denied not rule on whether indictment. The court did count of the from the should be stricken hearsay statements Cumber’s however, record, recollection of observing, court’s erroneously if the statements had been was that evidence admitted, harmless because the error would have been were innocuous. statements record, but it’s in the that would be another Well, application, possibly is and this it, record is in the record. recollection

whatever’s My subject is statement, and I don’t intend to make this definitive revision, incriminating anything as to conversa- any Cumber didn’t testify any way dealing with but since it, As I I’m not tion with Mr. Marshall. say, really I it more reaction to I would have to it, carefully. raised it, study you’ve my of if evidence of there it, any I’d have to study transcript suppose far as we’re as concerned, made Cumber with which out-of-court statements if that and that innocuous, type is that were the truthfulness concem[ed], they be harmless. it would sense, of evidence is in the case erroneously, any of the state- that all but five Before us defendant concedes harmless. De- by McKinnon to Cumber were ments attributed following five admission of the fendant contends that the error: statements constituted reversible (1) go and talk to Cumber. I did back Bobby [McKinnon] tell him? What did [Prosecutor] you man didn’t send he had known that the A. I told him that, course, already I $5,000.00 the as requested. who conversation with Marshall He had had another evidently already phone Marina at a him that if I would come to Atlantic Harrah’s specific advised City, on a the time and date written down that he would have paper, piece remainder of there me arrival. $2,500.00 my [on] ^[********] (2) got when back the 20th Now, 21st, after or Q. you Shreveport whatever Cumber did contact thereafter? you arrived, you day dealings A. I received so calls from And him. Always. many phone only I —he and I had were with Marshall. Yes. He told me I had—I he believe nothing

said of his friend's and I had done $15,000.00 for him. money ******** * * * (3) returning jury McKinnon told the Q. Mr. about you Shreveport, that within fewa came down from New from the days police Jersey, Prosecutor’s Office and the New State Police. Would tell the Jersey you anything, regarding about if did what what, had back in the you happened during Creek Picnic Area for the next Oyster few of time? days period things. A. I did a number of I contacted —or One, Robert Cumber contacted me and me, all, advised first of that the Ocean Prosecutor’s Office was County questioning in the area him about Maria Marshall’s He murder. hadn’t been arrested yet. ******** frightened. along Of he was I talked him one or course, two times

same lines. ******** (4) A. Cumber had me at told the time that he me advised talking authorities in town were with him about the murder Maria Marshall having that the or excuse the alibi that he had for these call conversa- phone

tions with that it was in to an Marshall, reference investment insurance policy, * * investment *. policy through A. He had sent some information even tomail that fact. The receiving of him down purpose orders there was for a bet money game something. NBA or

******** (5) A. Cumber told me, Robert Cumber told me that when authorities came to him in him asked if he knew Robert Shreveport, Marshall and I believe James Davis or that he told Jimmy Davis, no, them and that the only correspon- dence he game, had had with Robert Marshall was the bet with NBA game, whatever call it, a basketball and some they as far as correspondence some financial insurance investment business. game [Co-defendant when would NBA Thompson’s Counsel] Now, this be, September? A. I don’t know. really playing Do if Q. know the NBA is you basketball the 7th or about 8th September? A. That wasn’t my story. suggest suggest I I to it is to that Cumber never Q. you your story. you anything game, NBA bet,

said to about the basketball because he didn’t you have to cover. any money Objection. is That not a State]: [The question. suggestion, putting It is a and I am it to or admit the to truth Q. you deny

of it. A. he did to me. Well, yes, say something it made So, was about what Q. you deny you up Cumber said. A. I that is correct. that, deny allegedly-prejudicial

Based on our review of each of the Cumber, hearsay statements attributed to we are satisfied that erroneous, even if their admission was the error was harmless Hence, beyond a 2:10-2. do reasonable doubt. R. we not reach concerning question whether the State’s evidence the role enough engender of co-defendant “was substantial to Cumber strong conspiracy in the existence of the and of defen- belief participation.” Phelps, supra, 96 dant’s N.J. A.2d 1199. hearsay

1. The essence of the first statement is that Marshall, allegedly telephone Cumber told McKinnon that in a Cumber, pay conversation with had stated that he would McKinnon an additional when he arrived at Harrah’s $2500 City. prejudice Hotel Atlantic We find no to defendant from the admission of that statement its content re because peated testimony, in McKinnon’s direct which included a state paid ment that Marshall him cash at their initial $2500 meeting at Harrah’s. McKinnon, Similarly, alleged

2. statement Cumber’s July trip made after McKinnon’s return from his $15,000 City, money Atlantic that he had of Marshall’s and “had was, nothing anything, damaging for him” if less than done testimony McKinnon’s direct that when he returned to Louisi- $20,000 July trip City, ana after his Atlantic he received had $22,000 performed from Marshall and had no services. to repre 3. third statement Cumber’s McKinnon—that County Prosecutor’s Office were the sentatives Ocean murder, questioning him about and that he was area regarded prejudicial frightened as to defendant. be —cannot testimony indicating investigators was trial that from the There County Office had traveled to Ocean Prosecutor’s Louisiana murder, after the had interviewed Cumber and The others. “frightened” interrogation by fact Cumber was did not that necessarily suggest beyond his went his that involvement ac knowledged intermediary function as between Marshall and McKinnon. McKinnon,

4. next hearsay Cumber’s statement to during by Thompson’s elicited of McKinnon cross-examination counsel, defendant, by objection without was that had he told investigators County his telephone Ocean conversa with Marshall poli tions concerned an insurance or investment cy, money that the wagers orders from Marshall related games. interrogation on basketball Because this was intended impeach credibility, objection McKinnon’s from without de counsel, any fendant’s assume prejudice anticipated we response insignificant. from McKinnon’s was considered to be We note testimony also that in course of defendant’s he acknowledged Cumber, that he maintained an insurance file for acknowledged and also misrepresented that he Sarann money Kraushaar that the sent to Louisiana was related to Hence, wagers. basketball prejudice we no from discern admission of this statement. hearsay

5. final essentially statement was same as prior statement, reflecting alleged Cumber’s comments to police that his only contact with defendant concerned insurance policies wagers. or basketball It plain is from the context in which this answer elicited objec- from McKinnon that the Thompson’s tive of counsel was to discredit McKinnon’s direct testimony. We find that prejudiced by defendant was not its admission. of McKinnon

C. Cross-Examination McKinnon, In of his cross-examination of the course attempted question McKinnon about an defendant’s counsel covering damage to his Cad insurance settlement he received automobile, that McKinnon had illac in an effort to demonstrate by misrepresenting company the insurance defrauded argued damage had caused his brother. Defendant been questioning proper under Evidence Rule 55 to that the was plan impeach or scheme and to McKin demonstrate a common objection credibility. non’s The trial court sustained the State’s cross-examination, proposed ruling the that McKinnon’schar proved by prior not conduct that not the acter could be conviction, 47, subject of a criminal Evid.R. and that there was alleged no conceivable basis on which the fraud could be linked category to Mrs. Marshall’s homicide within the of common plan pro or scheme. The trial court also concluded that the posed under 4 cross-examination was excludable Evidence Rule view, capacity jury. In because of its to mislead the our ruling proposed trial court’s that excluded the cross-examina any in indisputably tion was correct and event well within the trial court’s ambit of discretion. Evid.R. 4. See Expert’s

D. Examination of Tire Defendant contends that the manner which State’s expert right tire forensic conducted his examination of the rear damaged of defendant’s automobile the tire to such an extent expert that defendant’s could not test the tire to determine if by large there were leaks other than that caused slit in the Hence, argues right that his sidewall. defendant constitutional trial, particularly “constitutionally to a fair his so-called evidence,” guaranteed access to States v. United Valenzuela- Bernal, 858, 3440, 3446, 867, 102 73 L.Ed.2d U.S. S.Ct. (1982), was frustrated of a State’s excision portion photograph appeared of the tire in order to the slit as it on the tire’s inside Defendant contends surface. that his con viction must that on retrial the must be reversed and be infer, pre- that it could from the failure to instructed State’s intact, inspection the tire of the tire serve defendant’s yielded exculpatory have would evidence. Hickman, Police,

George a forensic chemist for the State right testified that the rear tire was flat it at his when arrived laboratory September initially Trenton 1984. West on He lens, high intensity light, with a using examined the tire hand any to ascertain whether there were defects visible than other Finding none, attempted the sidewall. the slit he to inflate tire, setting pressure gauge thirty pounds per first at fifty-five square pounds per square inch and then at inch. Hickman testified that he could not inflate the tire all escaped through because air the slit. Hickman,

According damage there was no in the other tire escaped. than the slit which air could from have He verified by fastening undamaged that the tire’s valve was it intact on an tire, inflating rim, checking it while mounted for leaks. Hickman also determined that there was no indication on either tire the rim that the had driven car been while tire was in a semi-deflated condition.

Hickman in stated that the slit the one sidewall was three-eighths long. inches He testified on cross-examination September 19,1984, that on about portion he cut out a of the slit, surrounding tire close-up photographs the order to take of the slit from both outside and inside tire. Based examination, on his Hickman concluded that the slit in the tire by was made stiletto-type knife a centerpoint and a double-edge-style response questions blade. In by Thomp- counsel, son’s Hickman stated that the slit could not have been pocket made either of two Thompson’s knives in possession he when was arrested. apparently

Defendant attempt made no before trial exam- 14, ine the tire. February On day 1986—the nineteenth trial —defendant’s counsel informed the trial that court an expert arriving day purpose that for the examining

107 prosecutor tire. objected, noting expert report that no had been submitted. Consequently, defense pro- counsel offered to report expert vide the event the was called as a witness. day On the next trial the State offered the tire into evidence. objected, Defendant arguing portion that the excision of a prevented the tire had expert determining his from whether the tire had other defects. Defense counsel asserted if the tire intact, had been patched slit could have been and the tire submerged in water while inflated to check for other leaks. He contended that the deliberately State had or inadvertently inter- fered ability tire, with defendant’s depriving to test the defen- right dant of his constitutional to a fair trial. The trial court evidence, admitted the tire ruling into alleged without on the constitutional violations. us, acknowledges

Before defendant that trial counsel did not through expert establish testimony that the slit in the sidewall patched could have permit been order inflation of the tire for purpose of ascertaining the existence of other defects. Nevertheless, argues defendant that the State’s excision of a portion of the tire so interfered with defendant’s access to potentially exculpatory require evidence as to reversal of his conviction. Defendant also seeks a instruction on retrial damage intact, to the tire warrants an inference if the tire would have exculpatory revealed evidence.

We address defendant’s contentions on the basis of evolving constitutional concerning prosecution’s doctrine duty preserve to disclose or evidence. The basic rule was in Brady 83, 1194, established v. Maryland, 373 U.S. S. Ct. (1963), 10 L.Ed.2d 215 which suppression by held that “the prosecution of upon evidence favorable to the request accused process violates due where the evidence is material either to guilt punishment, or to irrespective good faith or bad prosecution.” faith of the Id. at S.Ct.

L.Ed.2d at 218. specific request disclosure, Absent a duty State has a to exculpatory disclose tending evidence to raise a reasonable guilt. doubt about defendant’s United

108 97, 112, Agurs, 2392, 2401, States v. 427 U.S. 96 S.Ct. 49 342, (1976). L.Ed.2d 355 suggested

Other cases due-process have that a violation could occur if unreasonably the State interfered with a defendant’s preparation Marion, for trial. United States v. 404 U.S. Cf. 307, 324, 455, 465, 468, (1971), 92 S.Ct. 30 L.Ed.2d 480-81 Lovasco, 783, 795-97, United States 2044, v. 431 U.S. 97 S.Ct. 2051-52, 752, (1977) (both 52 L.Ed.2d 762-64 acknowledging due-process government violation could occur if delayed long indictment for so to prejudice unduly as ability defendant’s trial). prepare to Supreme recognized Court has also government, that the by deporting potential witnesses, could due-process violate a defendant’s rights if testimony their would have been material and favorable to the defense. Unit Valenzuela-Bernal, ed States v. 873, supra, 458 U.S. at 102 3449, S.Ct. at 73 L.Ed.2d at 1206. Trombetta, In 479, v. 2528, 467 U.S. S. Ct. California (1984),

L.Ed.2d 413 the Court analogous argu addressed an ment by advanced defendants driving convicted of while intoxi cated on the basis of breath-analysis equipment readings. De fendants contended that the preserve State’s failure samples breath tested equipment deprived them ability independent conduct impeach tests to Intoxilyzer read ings, denying thus them right guaranteed by the due process clause of the fourteenth present amendment to a com plete Rejecting defense. contentions, defendants’ the Court first noted the any absence of evidence of bad faith or of “a conscious suppress effort to exculpatory 488, evidence.” Id. at 2533, 104 S.Ct. at 81 L.Ed.2d at 422. The Court also reasoned that a obligation State’s preserve evidence must be limited “to might evidence that expected be play significant role in suspects’ defense,” ibid., encompassing standard evi dence exculpatory whose value was obvious before its destruc tion and of such a comparable nature that evidence would not reasonably be available. Id. at 104 S.Ct. at L.Ed.2d at 422. The Court determined view

109 accuracy of breath-analysis equip- demonstrated the California ment, highly unlikely preserved samples it was of breath ibid., would have exculpatory, been and that defendants had adequate opportunity challenge through to the test results inspection, 491, Id. at expert testimony, and cross-examination. 2535, S.Ct. 104 at 81 L.Ed.2d at 423. Youngblood, v. recently, Arizona 51,

Most U.S. 488 109 333, S.Ct. 102 L.Ed.2d 281 (1988), the Court reinstated defen molestation, assault, dant’s convictions for child sexual kidnapping, reversing judgment the of the Arizona Court of Appeals that properly preserve State’s failure to semen samples that could have exonerated defendant constituted denial of due process. The critical evidence consisted of semen samples on clothing, expert victim’s and an witness testified testing that earlier refrigeration clothing might of the have permitted a conclusive of identity. determination the assailant’s police There no indication that had acted in bad faith. The trial court might instructed the that it “infer that the against true fact is if State’s interest” it determined that 54, State had lost or destroyed evidence. Id. 109 S. at at Ct. 335, 102 L.Ed.2d at 287. The Court concluded absent bad faith, due-process no violation had occurred: Amendment, interpreted Due The Process of Clause the Fourteenth as Brady, good makes the or bad faith of the State irrelevant when the State fails exculpatory

to disclose to the defendant material evidence. But we think the requires Due Process Clause a different result when deal we failure of preserve evidentiary the State to material which of no more can be said than subjected tests, might could it have been of the results which have exonerated the Part defendant. of the reason for the difference in treatment is by Trombetta, supra, found in the observation made the Court in at [467 U.S.] 486, [2532], potentially L .Ed .2d 104 S 2528 .Ct that “[w]henever exculpatory lost, permanently evidence is courts face the treacherous task of divining and, import often, very of materials whose contents are unknown * * * disputed.” requiring We think that a defendant to show bad faith on the part police police’s obligation preserve both limits the extent of the evidence to reasonable bounds and confines it that class cases where the justice i.e., clearly it, require police interests most those cases in which the themselves their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant part police, preserve can show potentially bad faith on the failure to process useful evidence does not constitute denial of due of law. 102 L.E.2d at 488 U.S. at S.Ct. 57-58, 289.] [Id. view, due-process of defendant’s In our no violation expert piece excised a rights occurred because the State’s photograph in order the slit. The record contains no tire suggestion expert testified to his of bad faith. State’s inculpatory, exculpatory, not belief that the tire constituted evidence, part part of the tire and that the excision of was The tire offered in to his examination routine. was evidence slit, portion prove of the and excision of a of the the existence ability tire did not affect defendant’s to contest either the expert’s testimony existence of the slit or the that it had been stiletto-type sharp edges. knife caused with two Unlike Trombetta, rely longer no the State did not trial on evidence tire, slit, prove except that the for the was undam available aged. proof expert’s testimony its that an State’s of the tire a hand lens under illumination examination expert’s subjected disclosed no defects. The conclusions were cross-examination, expert and defendant’s could have con though part ducted the identical examination of the tire even had been excised. The fact that defendant made no effort to expert inspect suggests have an the tire until well into the trial significance possibili that defense counsel attached little to the ty damage Finally, that the tire had other than the slit. even if intact, preserved patched, the tire had been the slit and the tire leak, tested to reveal another that evidence would not have wholly exculpatory. might supported been It have defendant’s tire, explanation stopping to check the but the would weigh then have had to that evidence in the context of substan circumstances, guilt. tial additional evidence Under these portion deprive we hold that the excision of a of the tire did not right defendant of his constitutional to a fair trial. Admissibility Hearsay E. of Victim’s Statements 1. Testimony by Christopher Scala Christopher Agency Scala of the Scala Insurance testified that he had pick up arrived at the Marshall home about noon to

Ill applications life insurance Dur- Maria Robert Marshall. ing testimony following colloquy his occurred: Was Mrs. Marshall there at that time? [Prosecutor]: signature. signed Yes. I had witness her came in and [Witness]: She application. anything, if did What, Mrs. Marshall in Mr. Q. Marshall’s say presence

about this application? Objection. Honor. [Defense Counsel]: Hearsay, your he Not if was there. [Prosecutor]: THE COURT: it it on what is. Well, depends Counsel the bench. approach (The following hearing jury:) takes in the but out of the of the presence place going She as is to —she asked Marshall this is [Prosecutor]: what question mortgage is said for, what and he it’s an this, for insurance on a application period. going THE COURT: that wouldn’t Well, be if that’s what it’s to be. hearsay, coming That wouldn’t be because not [Prosecutor]: hearsay it’s in to prove anything. the truth objected. I If had known then I [Defense that, wouldn’t have Counsel]: (The following hearing jury:) takes place presence THE COURT: Proceed. regard- What did Mrs. Marshall in Mr. [Prosecutor]: Marshall’s say presence ing this application? sign He had her asked to it and she “What is [Witness]: it?” He said, said, mortgage.” the “It’s for statement, Defendant contends before us that the is “What it?”, Marshall, attributed to Mrs. hearsay, was inadmissible prove to offered the “lack knowledge decedent’s the about policy.” insurance The State counters the victim’s state- ment merely was offered to establish a context for defendant’s explanation policy’s purpose was to their mort- related However, gage. during the State’s cross-examination of defen- dant, pressed asked, Marshall was to admit that his wife had for,” presence agent, “What’s this in the the State’s purpose being clearly knowledge establish a lack of part concerning of Mrs. policy. Marshall new that,

Although agree we notwithstanding defense counsel’s contrary, concession to the the statement was inad hearsay, missible arewe that its satisfied admission was harm- beyond During less a reasonable doubt. his cross-examination signing defendant stated that Mrs. Marshall knew she was an application, having just pur- examined for that insurance been Moreover, pose. Christopher the witness who followed Scala person had examined defendant and Mrs. Marshall who morning between ten and eleven o’clock. He stated that questioned required he had Mrs. Marshall order to fill out the questionnaire, sample speci- medical obtained a blood and urine men, Hence, pulse pressure. and checked her and blood strongly suggests record that Mrs. Marshall must have been application aware that the examination and form related to life insurance, and there is little likelihood that the would have by been misled the erroneous admission of Mrs. Marshall’s statement.

2. July Admission into Evidence Mrs. Marshall’s O’Malley, Esq.

Letter Edward O’Malley, attorney Edward an hired Mrs. Marshall to represent her in problems, connection with matrimonial testified State, identifying among for the other documents a letter dated 23, 1984, July him, from Mrs. Marshall to a note attached to the O’Malley letter. The letter asked Mr. to check on two telephone letter, numbers set forth one of the numbers having fact, been rewritten on the attached note. In corresponded number on the note to the pay number on the phone Airport at the Inn in City. Motor Atlantic The letter from “Holding my own, Mrs. Marshall ended with the words pray trial, for me.” At objected defendant letter’s evidence, admission contending into that its contents constitut- hearsay ed concluding and that at least the statement should be capacity redacted because of its prejudice jury. argued State that the letter was admissible under the “business exception hearsay 63(13). entries” to the rule. Evid.R. evidence, trial court admitted reasoning the letter in that it was prove not offered to the truth prove of its content but rather to that Mrs. Marshall had containing furnished the letter the

113 telephone attorney. numbers to her Before us con- defendant tends the of admission the letter in evidence constituted error, compounded reversible which when prosecutor was the jury during read the letter to the his summation. agree portion

We the of the letter on which “Holding my own, pray defendant inad me”—was focuses— hearsay capable being missible it was of because understood jury to reflect Mrs. Marshall’s state of mind at the time she prerequisite wrote A application the letter. to the of “state exception rule, 63(12), hearsay mind” to the is that Evid.R. Nothing declarant’s state of mind is in issue. this record suggests July that Mrs. state of mind in Marshall’s 1984 was issue, preclude and our decisions of her use evidence prove state of mind defendant’s motive state of mind. See Machado, 480, 486-88, (1988); State v. 111 N.J. 545 A.2d 174 Downey, N.J.Super. 390-91, State v. 2d A. (App.Div.1986).

Nevertheless, beyond the error was harmless reason Although able jury during doubt. the letter was read to the prosecutor’s evidence, occupied and admitted into summation it only protracted a few moments of significance trial and its was only peripheral. suggested evidence No at trial that Mrs. safety. likely not, Marshall feared for her More than understood the words end of letter at the not as a manifes expression tation of but upheaval, fear as an of emotional longstanding characteristic a wife or husband whose mar riage in jeopardy. cannot We conceive the admission evidence, of Mrs. into Marshall’s letter context proofs trial, totality of the capacity introduced at had the produce or unjust contribute to an result.

F. Alleged Infringements Against Privilege Defendant’s

Self-Incrimination cites specific during Defendant three instances trial which prosecutor infringed allegedly on his State common-lawand privilege against self-incrimination. federal-constitutional We separately. each contention deal with 21, 1984, September 1. The Interview testimony Investigator Defendant contends that the trial Mahoney County concerning Ocean Prosecutor’s Office 21, 1984, September his of defendant on was neces- interview sarily jury convey impression understood to cooperate Mahoney, thereby defendant had refused to with permitting the State to derive an adverse from defen- inference privilege against dant’s exercise of his self-incrimination. Be- Investigator Mahoney permitted testify fore was to jury’s presence, argument respect the trial court heard proposed testimony defendant’s contentions that would infringe right privilege against on defendant’s counsel self-incrimination, unduly prejudicial and should be excluded as court, under Evidence 4. The Rule trial informed that Maho- ney prepared testify “visibly was that defendant became “pale” shaken” and when asked if he knew James Davis or McKinnon, Billy Wayne hearing pursuant conducted a to Evi- dence 19 to Mahoney qualified Rule determine whether testify change about defendant’s in demeanor. In the course of hearing, Mahoney at which testified that defendant became visibly upset when the names “Davis” and “McKinnon” were mentioned, Mahoney stated that the interview was then termi- nated request. at defendant’s Both defendant’s counsel and Thompson’s argued testimony by counsel Mahoney that defendant had infringed terminated the interview on defen- dant’s rights. constitutional Both urged, counsel over the prosecutor’s objection, Mahoney be instructed to limit his testimony by noting trial merely that “the interview terminat- ed,” rather than attribute the termination to defendant. The agreed, trial court prosecutor and instructed accordingly. Mahoney testified before the that he called Marshall on September 1984, and asked to meet with “I explained him. to him that some light information has come to regarding the wife, seeking death of his and we were his assistance.” Maho- Investigator house. Ma- ney and Woodfield went to Marshall’s honey initially “pleas- testified that Marshall’s demeanor was ant, cooperative.” The direct examination continued. So went into what of his house? Q. you portion living A. He let us into the room area of his home and we sat down. I had during him him at that time names have surfaced that, asked told several investigation he if he us, into the death of his wife and if could possibly help recognized I if of these names. to ask him he knew either a any proceeded or Billie McKinnon from Louisiana.

James Davis Jimmy Wayne Shreveport, Did in time asked him observe his reaction at when Q. you you point that question? thought going A. Mr. Marshall became I he was to have, visibly upset. may changed. his drink. He His demeanor became pale. spill Did the conversation terminate at that Q. point? A. The terminated at that interview was point. Mahoney’s

Before us defendant contends that trial tes timony, by ruling response in even as limited the trial court’s to objections, right counsels’ to silence. contravened defendant’s disagree. Investigator Mahoney’s testimony trial focused We change primarily on defendant’s of demeanor when the names Although Maho “Davis” “McKinnon” were mentioned. ney’s testimony may permitted jury have to infer that respond question defendant did not to his Davis and about McKinnon, compelled Mahoney no inference such was because testify response. did not defendant’s Later in the trial about Mahoney Sarann Kraushaar testified that defendant had told view, recognize In that he did not the names. our the trial ruling Mahoney’s testimony court’s to in a manner consist limit objections by effectively ent with the defense counsel advanced Mahoney’s avoided likelihood that the would consider right testimony implicating as defendant’s exercise of his remain silent.

2. Cross-examination of Defendant portion prosecu

Defendant contends that that of the tor’s cross-examination of defendant that focused on defen question police progress dant’s failure to of the about investigation infringed privilege against self-in- defendant’s is crimination. The State’s cross-examination Marshall best testimony direct noting during understood his defen- published stated that he two an dant friends advertisement $10,000 offering anyone offering help- reward to information locating Marshall’s ful Mrs. murderer. Defendant also intro- attorney evidence a letter from his prosecutor’s duced stating willing that defendant cooperate office “remains during investigation. Therefore, office your this I assume will you me information notify you require any will should my from client.” State that its The contends cross-examination credibility willingness intended to test the of defendant’s cooperate genuineness finding and the of his interest identity of his wife’s murderer. following challenged portion prose- constitutes the

cutor’s cross-examination: Was that offer effort to made in an mislead and deceive the Q. [the reward] sir? police, No. A. assuming I’m reward Now, made that out of concern and Q. you your right? to have

desire these and is that convicted; captured people Right. A. I think on referred as Q. to them is that correct? your tape you “bastards”; Yes. A. during After Maria’s on 10th, funeral the next week that Q. September * * * did followed, ever once walk over to the Prosecutor’s you Office ask and investigation going? for Lieutenant Churchill ask him how the was Did do that the week after Maria’s death? you No. A. during Now, time month Q. pick telephone up any —ever and call the Prosecutor’s Office or State Police and September say, hey, investigation going? fellas, how’s the leads? Any Did ever do that? you INo, A. was told to contact not you. Sir, the month the entire Q. October, month, did ever contact you being in law anybody enforcement, concerned spouse, widower— object I to this because of the was [DEFENSE fact he COUNSEL]: repre- sented counsel then and letter that dictated is in by evidence, was and he’s answered the already about he was advised This question counsel. is getting into now an where attorney-client situation he’s had counsel from trying to on he’s now create some and, obviously, September type negative regard inference fair with which is not the witness. agree. I that from on THE COURT: I think the —based his record from and date of the which I after the don’t remember— letter, was It 24th. [DEFENSE COUNSEL]: September THE COURT: from and after that not 24th, date, it would be September objection. to ask such a So I’ll sustain the proper question. THE

[BY PROSECUTOR]: did Before 24th ever contact law author- Q. September you any enforcement investigation going? once to how the ities even ask them was gentleman A. On 21st of when Mr. and the other September, Mahoney things going. I them came to asked how were house, sir— Q. question was, My I

A. Did contact? Did ever take it law ask Q. you contact enforcement and upon yourself investigation going? them how was A. No. advice from other I did not. Upon attorneys go Did ever to the you down Prosecutor and the heck with Q. him, say going these other I all these hear rumors and I attorneys, around, suspicions nothing getting go looking had to do with trail’s it, the better start cold, you another direction? ever Did do that? you again objected trying

Defense counsel prosecutor was an improper create inference in jurors. the minds of the prosecutor question proceeded: withdrew the Your office

Q. was searched it not? September 8th, was Saturday, A. I believe so. Are aware one of you drawers in office was all Q. every your your nothing were there no there were no there clean; documents, was when papers, searched office? Are aware of that?

they your you A. Yes. Did clean

Q. you before came? they up A. I have two Mr. I didn’t clean no. offices, Kelly. up, On after Q. September 8th, died, wife day your [defense counsel] not was he? your lawyer, A. he On was not. September 8th, no, came You and Q. office found a of the search warrant at your you copy did office, not? your you A. Yes. knew You that the officers had Q. searched office on that date? police your Right.

A. 118 go Did down to the Prosecutor’s Office and to the I Q. Prosecutor, you say suspecting nothing go are hide, have me? You better off and look why you getting another because the cold? Did sir? that, direction trail’s do you object again suggests Your I because a Honor, this [DEFENSE COUNSEL]: a citizen or to take their action, certain certain and also that duty upon anyone negative

failure to do that lead to some inference. That’s should not clearly nor the That’s case, law. totally improper. prosecutor responded questioning The that the to the related credibility. the objection. defendant’s The court sustained questioning “initiating stated or court about lack of initiat- ing impermissi- contacts with the law enforcement authorities” bly implicated At fifth-amendment concerns. defendant’s re- jury: quest, the court instructed the give Under the I’ll some instructions later in some law, detail about you one of but the law is when is applicable law, that, principles person being investigated allegedly having for crime, committed a does not person go have a it, to the authorities about can’t duty speak draw you any guilt against go inferences of if the either doesn’t to the person person authorities or talk to doesn’t the authorities. point, At this questioning about whether Marshall had ever approached concerning investigation the authorities ceased. prosecution’s cross-examination,

Defendant contends that the emphasizing defendant’s failure to communicate with the au progress thorities about the the investigation, infringed privilege against self-incrimination, defendant’s exercise of his citing Deatore, 100, (1976); State v. 70 358 .2d163 N.J. A State Merola, N.J.Super. v. (App.Div.1986); A.2d and other precedents. state federal Deatore,

In the defendant was on robbery. trial for armed Testifying behalf, in his own he stated he that was elsewhere at cross-examination, the time of the crime. On the defendant was asked whether he had police disclosed to the his alibi at the time of responded his arrest. He that he only recalled that he receipt had asked for money taken from him police. When asked if was it not true that he any had refused to make statement, replied, defendant “Nobody asked me.” 70 Appellate N.J. 358 A .2d163. The Division reversed the ground defendant’s conviction on the that the State’s cross-ex-

119 penalized privi- amination had the defendant’s exercise of his Id. at lege against 109, self-incrimination. 358 A.2d 163. In affirming decision, Appellate Division’s we observed that right can be no that the of doubt an accused or a to remain [t]here suspect interrogation

silent when in or under has been a funda- police custody always privilege mental in this state. aspect privilege effect of the to remain silent as we held a decade practical is, ago, “that when a defendant refused to no answer, inference can be expressly against drawn him under the doctrine of silence or other acquiescence by any * * * being This it should so, follow that a defendant is concept.” certainly obligation under no volunteer to the authorities at the first opportunity he later tells at his trial and cannot be exculpatory story penalized directly if he does not. indirectly (citations omitted).] N.J. at 358 163 114, A.2d [70 Merola, supra, N.J.Super. State v. 119, 214 at 518 A.2d 518 Cf. (“To permit silence, the use prearrest if [the defendant’s] * * * only impeachment purposes, improperly burdens [the right testify defense.”). in his own defendant’s] Deatore, supra, however, As the Court noted in there is a enjoys distinction between the kind of silence that constitutional protection and silence that constitutes conduct inconsistent with 70 N.J. at testimony. 118, a defendant’s trial 358 163. A.2d Burt, The Court referred to State v. 156, 59 N.J. 279 A. 2d 850 denied, (1971), cert. 1047, 728, U.S. S.Ct. 30 L.Ed.2d 735 92 (1972), charged shooting where the defendant was a friend shooting and testified at trial that the had been accidental. The cross-examination at trial established that the defendant sought injured

had not medical or other assistance for his friend after the knowing had incident, left the locale without whether he was dead or alive and had not the occurrence to the when he was arrested for another reported police * * offense a few hours later *. N.J. at 358 A.2d [70 163]

Accordingly, in Deatore concluded that Burt the Court in fact not a true case of silence in as to an police custody exculpatory story, conduct, charged

but rather one of albeit after the crime non-action, inconsist questioning ent with defendant’s at trial. As such, of a defendant story privilege thereon runs into none of the difficulties the self-incrimination or of the law of evidence and is entirely proper. (footnote omitted).] N.J. A.2d 163

[70 view, concerning In our the cross-examination defendant questioned progress his failure to have authorities about the investigation the did not focus at all on defendant’s exercise of privilege against prosecutor’s his in- self-incrimination. quiry not to did address defendant’s refusal admit or reveal his guilt, aspect questioned own but rather an of his conduct appeared to tracing conflict his interest in with avowed down Although component his wife’s murderer. was “silence” a of by prosecutor’s cross-examination, the the conduct addressed it type protected by did not constitute the of silence defendant’s against privilege In self-incrimination. view of defendant’s testimony, prosecution direct the on cross-examination was genuineness entitled to test the of defendant’s interest ascertaining identity the of his wife’s assailant. conclude We privilege against that defendant’s self-incrimination was not infringed by segment the to cross-examination addressed his failure to have communicated with authorities about the investigation. progress 3. Prosecutor’s Remarks in Summation

Finally, defendant contends that two consecutive by prosecutor during summation, statements made each one critical of defendant’s failure to have disclosed to authorities relationship Billy Wayne McKinnon, his infringed with on de privilege against fendant’s challenged self-incrimination. The comments follow: His wife is dead, mother his children. Does it make sense to that he you just did not to the say at'the Creek “I met police Oyster area, with this picnic guy go from Louisiana. He followed me here. You better down probably up get there and him. Here’s his number. Here’s his Go to phone address. Caddo Hardware Store. I him Does that make paid sense It money”? you? trying something, makes if sense to hide does it you’re not? given He’s a second on chance, when 21st, Wood- September Mahoney go field his house. need say, “Hey, Rob, we assistance.” “Come They your having Having good in.” He’s a drink. Sarann’s there. a time. “Sure,

come on in. Have a seat.” “Listen. A names came Davis couple up, Jimmy juncture, McKinnon.” Don’t at Wayne think Billy you after he’s had rest and he’s not plenty cold, he’d “Yeah”? say, It makes sense if trying something. to hide you’re initially objection that no was asserted when We note prosecutor. The first state- were made statements addressing failure to his connection defendant's disclose ment— the crime speaking police when with McKinnon against implicate privilege not self-in- scene—does defendant’s night it events on the crimination because relates to the murder, substantially progress investigation was before Arizona, v. Miranda suspect. defendant and before Cf. 436, 477-78, 1629-30, 16 L.Ed.2d 86 S.Ct. U.S. (Miranda general (1966) implicated by are not protections surrounding facts a crime or questioning on-the-scene as to fact-finding process). general questioning in the other clearly improper, it criticized The second statement was since relationship incriminatory his defendant’s failure to disclose begun investigation had McKinnon at time when instructed to jury focus on defendant. The should have been prosecutor’s given and a curative disregard the comment been a Although prosecutor’s constituted instruction. remark self-incrimination, its against privilege violation of defendant’s already aware significance was minimal was because Marshall, becoming suspect, provided the before had leading up to the police description with a detailed events context any omitted mention of McKinnon. In the murder but guilt, we the entire trial the abundant evidence of and beyond the offending conclude that statement was harmless 18, 23, 87 California, v. Chapman U.S. 386 reasonable doubt. 824, 827, (1967). L.Ed.2d S.Ct. Questioning Re- Concerning Prosecutorial Defendant’s

G. tention Counsel of a

Defendant seeks of his conviction on the basis reversal improper attempt prosecutor, highly inexcusable Oakleigh De during defendant’s cross-examination of sister Carlo, suggest defendant’s retention of counsel he inconsistent with his claim that was innocent. during

The incident occurred the State’s cross-examina Carlo, briefly tion of Mrs. De who testified as a defense witness during interrogation by about defendant’s demeanor his Investi gator Mahoney September 21st the Marshall residence. began following questions The cross-examination with the answers, addressed to Mrs. DeCarlo’s recollection of defen by Investigator Mahoney: dant’s interview him You didn’t hear answer did [THE PROSECUTOR]: any questions, you, said— when they IYes, did. [THE WITNESS]: did? You Q. A. Yes. Answer their Q. questions?

A. He answered a question.

AQ. question? A. A question. One Q. question?

A. One question. Then the conversation Q. ended; is that correct? A. No. said had other and he "I think I They they said, should questions going have if here to ask my lawyer more you’re any questions." get Did Q. him, Rob. you say “Hey, Why Your wife was your lawyer. ' murdered. these Maybe people —” INo, A. didn’t I— that. say You didn’t Q. say— be [MARSHALL’S Could she to at least answer the COUNSEL]: permitted before next question one? THE COURT: I think she have been may interrupted. THE [BY PROSECUTOR]: Did just Q. you brother, wait a say your “Rob, minute. Don’t answer one good photographs”? Take a look question. at these photographs. A. He wasn’t shown any Let me finish Q. “Think hard. my question. can you help Maybe police officers.” Did you say him, ma’am? photographs? A. He wasn’t shown I not No, did that. any say Although defendant contends prosecutor deliberately elicited from Mrs. De testimony Carlo the that defendant stopped the interview because lawyer his present, was not record indicates that the comment about counsel was vol- by unteered Although the witness. prosecutor verged on infringement an right asked, defendant’s to counsel he when * * * Your get your lawyer. wife [w]hy you say “Did * * cross-ex- the issue and the he not dwell on did murdered along other lines. proceeded amination witness cross-examined the Thompson’s attorney then coun retention of issue of Marshall’s briefly, returning to the prose immediately followed questioning was That sel. cross-examination, began with which supplemental cutor’s the retention suggestion that impermissible offensive and innocence: incompatible with is counsel COUNSEL]: THOMPSON’S [BY if a retained an attorney unreasonable wouldn’t think it person You Q. should have their attorney present? under they and was suspicion possibly hire for his advice. That’s them A. Not at all. why you Honor. I have no other your COUNSEL]: questions, [THOMPSON’S

CROSS-EXAMINATION THE PROSECUTOR]: [BY didn’t killed and you wife has been you when your Q. Especially haven’t — anything run and hire an attorney? still out it, have to do you asking me? An A. Are attorney— you Objection. Argumentative. COUNSEL]: [MARSHALL’S objection. other I sustain the ques- I think it is. will Any THE COURT: tions? Honor. No, PROSECUTOR]: your [THE You down. THE COURT: may step objection to the counsel’s though the court sustained Even could be character- prosecutor’s comment—which question, the reading required indulgent question only by a most ized as a — sponte sua None was curative instruction. a clear and forceful matter, or, requested. given for that during the remain- return to the issue prosecutor did not During defendant’s during summation. the trial or der of one acknowledged that he had consulted testimony he direct 8th, September con- searched on attorney after his office was 20th, retained attorney September on another sulted with 22nd. meeting September initial counsel after their his trial comment, improper defendant Thus, prosecutor’s despite acknowledging simultaneously his innocence while asserted 124 shortly right he freely after the murder exercised his

consult and retain counsel.

Although this Court has not ex addressed the issue pressly, fully in with the we are accord decisions of the federal Appeals holding prosecutor's sug a Courts statement gesting that retention of counsel is inconsistent with innocence impermissibly infringes right on a defendant’s constitutional See, Daoud, 478, e.g., counsel. United v. 741 F.2d 481 States (1st Cir.1984); Rushen, 1193, (9th Bruno v. 721 2dF. 1195 Cir.1983); Milstead, 950, (5th United States v. 671 F. 2d 953 Cir.1982); 480, Duckworth, (7th Cir.1981); 651 Jacks v. F. 2d 483 McDonald, (5th 559, Cir.1980); United States v. 620 F. 2d 564 F.2d 613, (3rd rel. Yeager, United States ex Macon v. 476 615 Cir.1973). Although McDonald, the Fifth Circuit in 620 supra, 564, se, per F .2d considered the error to be harmful the same Appeals applied analysis Milstead, Court harmless-error supra, 671 F. at 953. other appear apply 2d The circuits analysis. Chapman supra, harmless-error See California, v. 24, 828, 386 U.S. at S.Ct. at at 711. As in L.Ed.2d Milstead, supra, Duckworth, supra, courts in 651 F. 2d at 483, Daoud, supra, and in 741 F. 2d at concluded that the error was harmless and not hence reversible. courts Rushen, supra, Macon, Bruno v. 721 F. 2d at and in 616-17, supra, 476 applied F. 2d at the Chapman harmless-er ror standard found and the error to be reversible. Macon,

In the defendant manslaughter was convicted of shooting based during the victim an altercation following a traffic minor accident. The defendant’s version of the event was he had been assaulted victim his and friends, gun went accidentally during struggle. his off summation, prosecutor In commented on the defendant’s shooting, arguing conduct after the that his actions were incon- Among sistent with his claim of prosecutor’s innocence. following: remarks was the goes Then he goes in the a tom shirt. chest, the shirt down “He home puts morning sleeping. gets next and lo He the he had trouble up

to bed. He says These are acts of do? He calls his what does he behold, lawyer. and innocence?” [Id. at 614.] conviction, Appeals the Court reversing the defendant’s

In guilt sharply the defendant’s was that because determined harm- comment could not constitute prosecutor’s the disputed, less error: were critical of the evidence In because case, portions disputed, the present a central issue. This is not a as a witness was

the petitioner credibility against overwhelm- the was otherwise “so where the case petitioner situation ing” a reasonable contribute doubt, constitutional error did not, that the beyond concerning comment Macon’s consultation the conviction. The to prosecutor’s shooting to have been after the would incident, with counsel the appear day raising jurors’ in the minds and have had the effect of, directed to, may guilty. least himself to be, inference that believed was, petitioner (citations omitted).] [Id. at 616 and footnote harmless-error standard apply Chapman We attempt defen prosecutor’s impermissible encumber 474 Greenfield, U.S. right Wainright to counsel. v. dant’s Cf. 623, 634, 13, n. 632 n. 106 640 n. 88 L.Ed.2d S.Ct. (1986) standard determines (implying that harmless-error refusal suggestion that defendant’s prosecutor’s whether re insanity defense constitutes answer was inconsistent with error). prosecutor’s com Although consider the versible we for a impropriety an that is inexcusable ment to constitute cases, conclude trial of criminal we lawyer experienced error was extraordinary of this record the that the context that conclusion beyond a doubt. We reach harmless reasonable testimony own part knew from defendant’s because did not consider that he had retained counsel and conduct important to claim of innocence. More to detract at all from his however, conclusion, of defendant’s our is that the evidence impossible con persuasive virtually that it is guilt was so prosecutor, comment however ceive that this isolated been, signifi reprehensible may have could have contributed it guilt. cantly jury’s to the determination of Questioning Argument Challenging H. Defendant’s

Professed Love for His Deceased Wife prosecutor improperly Defendant contends that the cross-ex- concerning wedding him ring, disposal amined his of his ashes, relationships his wife’s with other women after his questioning death. The State wife’s asserts that testimony portrayed intended to rebut defendant’s direct loving him “a husband could as who not have masterminded his murder,” well testimony during wife’s as as to rebut his cross- terribly. examination that he loved wife his and' missed her testimony direct justify that the State relies on to this line testimony of cross-examination consists defendant’s night he cried on the murder and his statement that he participated could not have in his wife’s homicide because “she my cross-examination, During was the mother of children.” if defendant was asked he missed and loved his wife and he answered, “terribly.” prosecutor The then told defendant to up wearing hold his left and if he wedding hand asked was the ring given said, that his wife had him. Marshall The “Yes.” prosecutor then if asked defense counsel defense investi- gator had told him to ring. began wear the Marshall to answer, “I ring ,” to wear objected. wanted when counsel — objection. The court sustained the questioning The continued: ring just Is that a reflection of how much love and Q. miss Maria? you ring got A. took this off me They when arrested me and I they it back here because allow it here and not in Ocean And I they that’s have it County. why I now and didn’t have it before. ring wearing just Is is: that a Q. My question that reflection of you’re how much love and miss you Maria? it Yes, A. is. Can to me, her ashes Q. you explain sir, are still a brown cardboard why

box at the funeral home a desk— objected, Defense counsel arguing only that purpose of the questioning jury. prosecutor was to inflame the The claimed questioning was relevant to defendant’s avowal of love for agreed his prosecutor wife. The court ques- with the that the relevant, ques- rejected argument that the tioning was prejudicial. tioning unduly was questioning prosecutor resumed the about the deceased’s

The ashes not explained Marshall that his wife’s had been ashes. on family had not reached a decision disposed of because the prosecutor pointed of his The matter the time arrest. interval the murder and Mar- out the three-month between replied option family one arrest. Marshall shall’s considering disposing in Flor- members were ashes ida, waiting noting they had been until Christmas vacation not to together, they there but that had able to travel been arrange trip. girlfriend if he prosecutor

The then asked defendant had a days following he went Florida for a few his suicide when objected, prosecutor arguing attempt. Defense counsel undying for his it was relevant to defendant’s claim love objection. ex- The trial court overruled the Marshall wife. met. gone that he to see a woman he had plained had Florida recently requested if had prosecutor The then asked Marshall engaged marry. visit another woman he was contact he request said he made the but that had not been Marshall had marry He he engaged anyone. not testified that and was request made such because contact visits were allowed had only family for wives and members. testimony prosecutor commented this in summation: wedding this trial tells starts, He doesn’t wear his band until the you day give it to me in What are “Well, wouldn’t the Ocean Jail.” that, they County hang going it? That’s an insult. That was of, afraid he’s to himself with they his to deceive actions on calculated testimony part you. direct "I miss I love forth and so on. examination, Maria,” And on Maria. so man carried within a three-month

This on three separate relationships period sitting her so her ashes in a after his wife and misses much that are still died, gets her. in a home. That’s how much he misses And he drawer funeral objection there’s an at I asked that side-bar, this witness after after stand, and he’s an to think about his and he answer, had opportunity says, question going take we were her to Florida.” “Well, really Although objection ques- the trial court sustained the to the wedding concerning tion who had advised defendant wear his 128 trial,

ring remaining questions the court determined that the relevant to defendant’s his were stated affection for deceased testimony sought by to be elicited these wife. Whéther danger questions preju would “create substantial of undue dice,” 4, normally Evid.R. is a matter left the discretion of Carter, 86, the trial court. As we v. observed State 91 N.J. (1982): 2d 449 A. 1280 prejudicial). On unless it can be shown that the trial court resulted. Evid.R. convince the court prejudice [386 Comment 1. Whether probative its A.2d 378] 4, Comment finding is a decision left See State value of the contested evidence. probative was (1978) appellate party that 2. so v. (whether the factors Rogers, wide seeking value to the discretion review, of the mark that a manifest denial of prior the evidence is the decision of the trial court must stand favoring preclude N.J. convictions palpably ^[218] exclusion substantially the admission of evidence must Cf. at 229 abused its outweighed State v. trial may judge. [116 be excluded as too Sands, discretion, A.2d by See Evid.R. N.J. 76 outweigh potential (1955)]; that is, justice Although we would not the trial disturb court’s exercise of concerning questioning, discretion this line of acknowledge we position, an element of contrivance the State’s since defen- representation dant’s he “loved” his wife was only elicited prosecutor’s questions on cross-examination. Almost immediately extracting after an admission from defendant that wife, prosecutor he missed and loved his confronted defen- question dant with a Nevertheless, about the unburied ashes. a fair characterization of defendant’s direct testimony is that feelings his for his wife—the “mother of his children”—were he such that could not have participated in her homicide.

Although find we that defendant’s affection for his wife proper subject cross-examination, was a it is a matter speculation whether defendant’s arrange failure to for burial of his wife’s ashes particularly probative on that issue. We potential also find prejudice from the admission of that testimony significant. however, to be conclude, We cannot the State’s cross-examination did not adduce evidence that a jury could have found to be material to defendant’s stated affection for his deceased wife. We also note that defendant to respect explain to his conduct opportunity an had relationships ashes, with two and his wedding ring, his wife’s record, whether the it debatable this is other women. On “substantially evidence prejudice from this potential for undue Carter, value,” supra, 91 probative v. outweigh[ed] the State that the we are satisfied 449 A. 2d and hence N.J. within its broad ambit ruling on this issue was well trial court’s of discretion. Testimony Henry Exclusion of Tamburin

I. trial, day the close of the after On the fifteenth testified, four witnesses had case and after defense State’s Henry to call Tambu permission defendant asked court provid list not on the witness rin as a Tamburin was witness. importance that the Defense counsel claimed ed to the State. previous testimony clear over of this witness’s became Defense coun weekend, following a with his client. conference name was on the defendant’s argued that the witness’s sel tape tape constituted sufficient “suicide” and that so-called ran proffered that the witness notice to the State. The defense gambling casino-gambling taught and had Marshall club sys including manipulate to the casino credit techniques, how argued that the acquire The defense “comp” tem to tickets. activity at Har marker testimony was relevant Marshall’s rah’s, testimony suggest an would specifically that Tamburin’s activity explanation marker to contradict for Marshall’s markers taken out order assertion that the had been State’s questioned court pay could McKinnon. trial that Marshall prosecutor effectively could cross-examine Tambu whether the proved they if prepare rin or locate rebuttal witnesses ruled it not be fair necessary. The court that would day stage testimony at that of the trial to allow State testify following week. The court allowed Tamburin as a character witness. argues preclusion of Tambu- appeal,

On defendant defense, thereby right present his testimony rin’s violated depriving process. of right him due He also contends that his capital-murder outweighs any to call a witness in a preju- case dice to the State. ruling.

We find no error in the trial court’s Defendant acknowledges request witness, that the to call Tamburin aas prior production or copy proposed without notice of a of his report, Rules, 3:13-3(b)(5), was a of the discovery violation Rule specifically preclusion which authorize of the witness's testimo ny such circumstances. We invest trial courts broad appropriate discretion determine the imposed sanctions to be discovery-rule Labrutto, 187, for violations. State v. 114 N.J. 205, (1989); Toro, 215, 553 A.2d 335 v. N.J.Super. State (App.Div.1988). 551 A .2d 170

We note the trial court’s that prof- observation the evidence newly fered was not discovered its tender at stage that of trial the product extenuating was not We circumstances. also note that defendant belonging testified about to Tambu- club, rin’s explained theory Tamburin’s that extensive credit activity player the casinos enabled qualify for rooms, meals, complimentary and show tickets. Defense coun- argued sel in summation that defendant’s extensive “marker” activity with the casinos was the purpose generating “comps,” objective the defense’s apparently being to contradict theory the State’s that defendant took out “markers” on three get occasions in order to cash to turn over to McKinnon. Hence, the exclusion of expert testimony Tamburin’s did not preclude defendant from offering comparable evidence or from arguing activity that his marker integral was part an of his gambling strategy. overall We will not disturb trial court’s discretionary ruling on this issue.

J. Preclusion of of Testimony Portion of Defendant’s Son

John Marshall

During case, the defense attempted defendant’s counsel testimony elicit youngest son, from defendant’s John Mar- shall, telephone of a conversation concerning the substance evening September father on had had with his he testify the conversa- permitted to The was 1984. witness sounded minutes and that defendant lasted five tion four upset,” the trial court sustained but “depressed and kind testimony the substance of prosecutor’s objection to about proposed testimo- prosecutor contended conversation. counsel had failed ny hearsay, and asserted that defense conversation, any provide memoranda the State with 3:13-3(b)(3). the. argued counsel contrary to Defense Rule of mind that testimony confirm that defendant’s state would suicidal, discovery-rule violation evening explained the was brief, he extremely conversation was on the basis that the The testimony. summarizing proposed the made no notes had objection dis- State’s because the court sustained the trial defendant’s parenthetically We note that covery-rule violation. witness, Marshall, per- next was defense Christopher son telephoned had him that testify to that his father also mitted Moreover, saying goodbye.” “like he evening and sounded was his evening to each of that had dictated that tapes defendant in the jury. find no error played sons for the We three were perceive discretionary ruling, nor do we that court’s trial testimony prejudicial to this was defendant. exclusion of Admissibility Testimony Discrediting Defense Wit- K. Rakoczy

ness manager of the Best Western was the front-desk Zillah Hahn 27, 1984, for the and a rebuttal witness September Motel on Western, Best prosecution. Rakoczy, employee Paul another night desk the of defendant’s aborted duty was on front Rakoczy testimony of Hahn and conflict- attempt. suicide defendant had concerning type of mailbox into which ed placed envelope to Hahn’s addressed his brother-in-law. Mohel, Investigator who testified testimony supported that of tray. was a flat mailbox cross-examination, Thompson’s attorney On attacked Hahn’s credibility, suggesting against that the witness was biased defense. He insinuated that Hahn resented the defense’s fail- provided transportation following ure to have her with home pretrial hearing, resulting in her paying expensive for an cab implied during questioning He ride. also the motel’s management recently Rakoczy had spoken fired he because had defense, investigators going and was testify 19, 1986, Rakoczy January shortly defense. fired after subpoena Hahn testify received in the trial. examination, Hahn, prosecutor On redirect “Why asked Rakoczy was Paul “officially, fired?” Hahn answered that we * * * poor fired him for attitude but that was not reason.” [the] elaborate, Asked Hahn said she had overheard Rakoczy arranging to have his car stolen because he needed cash. She days Rakoczy added a few later had her told his car had been stolen. This testimony objection. was received without began As the witness to list other firing, reasons for the objected, attorney Marshall’s prosecutor and the withdrew the question about other reasons for the dismissal. testimony

Defendant contends that Hahn’s that Ra koczy arranged had to have his car hearsay, stolen was admit ted context, in violation of however, Evidence Rule 63. In this we testimony conclude that Hahn’s did not constitute hearsay prove because it was offered her state mind—her motive firing Rokoczy prove not to the truth the state —and Rakoczy. Johnson, ments attributed to Accord State v. 216 588, N.J.Super. (App.Div.1987); 524 A.2d 826 State v. Smith, N.J.Super. 138-39, 113 (App.Div.1971); 273 A .2d68 Wigmore, (Chadbourn 1976)(“Wherever Evidence rev. § an utterance is offered to evidence the state mind which person consequence utterance, ensued another it is obvious that no assertive or sought testimonial use is to be it, made of admissible, and the utterance is therefore so far as hearsay the concerned.”). rule is Hence we find no error the challenged admission of the testimony, any prejudice nor from jury, sponte, to instruct the sua on omission the trial court’s 6. The testimony. the See Evid.R. limited relevance of in use motel concerning type of at the was mailbox issue supported contested, testimony Rakoczy’s and was vigorously testimony in improbable It is most that the by other witnesses. significantly. question influenced the for Mistrial Based on L. Denial of Defendant’s Motion Discovery Violations State’s denial of his motion contends that the trial court’s Defendant mistrial, produced failure to have as for a based on the State’s potential discovery of interviews with four part of its notes and, therefore, witnesses, constituted an abuse of discretion error. reversible apparent to counsel discovery violation became defense

during prosecutor’s cross-examination of the course of the defendant, in the of which he was asked whether defen- course friends, Dick dant made certain statements to two his had Serrao; Zerrer, manager his at Provident Reed and Ted to Jack brother-in-law, All Mutual; Joseph Dougherty. his four and to prior to trial —Serrao potential had been identified as witnesses Zerrer, State, Reed, Dougherty for the defense. for the and if he Reed example, For was asked had told defendant “leaning “looking into” his car Zerrer he was into” or head; having defendant denied trunk he was hit on when telling Reed Zerrer. Defendant also denied said that to “swing the pavement” he saw Maria’s feet when Serrao that questions alleged car rest stopped he at the area. Of been on withheld interview defendant have based notes, only response one that elicited an affirmative con- September had cerned defendant told Serrao 27th whether Billy night “gave Wayne Maria was murdered $800 he it,” “I replied, don’t police and the knew which defendant it, may I recall but have.” objected interrogation

When defense counsel prosecutor using ground obviously on the that the inter- 134 produced during discovery, notes had not been

view correctly trial court ruled that the were interview notes dis- 3:13-3(a)(8), pursuant Rule prose- coverable ordered cutor to make the notes available defense counsel. At the cross-examination, of his conclusion defendant moved for a prosecutor’s mistrial on the basis of the discovery violation. motion, observing although The trial court denied the obviously had questions interview notes been used to frame cross-examination, during defendant’s defendant had either de- making having nied the statements or not recalled made them. Hence, the trial court concluded that defendant had not been prejudiced by prosecutor’s use of the interview notes. denying motion, Although defendant’s mistrial the trial court precluded the using State from for counsel, impermissibly dilut- instruction, objected not that guilt beyond a prove defendant’s burden to ed the State’s doubt. reasonable charge trial court’s reads: challenged portion of the gentlemen, of the words and said, many and it has been correctly, Ladies category is of the words in that derived from the and one Latin,

that we use are and it is derived from the Latin veredictum, verdict. The word verdict the word declare the truth. declaration. So let verdict means a true your charge consistently “portions of a have observed We dealt with in isolation but the alleged erroneous cannot be to be determine its overall charge examined as a whole to should be 420, 422, (1973); 307 .2d608 Wilbely, 63 A effect.” State v. N.J. 330, 373, (1989); Hunt, 115 558 A .2d1259 v. N.J. accord State 186-87, (1964), Ravenell, 171, .2d13 43 203 A cert. v. N.J. State (1965); denied, 13 L.Ed.2d572 State 379 U.S. S.Ct. (1960). 300, 317, 164 A .2d 481 Hipplewith, 33 N.J. v. in acknowledges properly the trial court Defendant prove all jury concerning the State’s burden to structed the Defen beyond a reasonable doubt. elements of each offense asserts, however, that the instructions on reasonable dant charge, whereas the commencement of the doubt occurred at the conclusion of quoted was delivered at paragraph above paragraph of contends that the final charge. Defendant instruction, emphasis in summa in the context of counsel’s credibility determining jury’s critical role tion on the witnesses, believing role jury into that its conflicting misled the credibility, and not to reach merely to determine issues of met its burden of on whether the State had verdict based relies on guilt beyond a doubt. Defendant proving reasonable (3d Cir.1979), Pine, in 2d 106 which States v. F. United statement: instruction that included this volved telling are the truth is the Government’s witnesses The basic whether question telling Your basic and their witnesses are the truth. or whether the defendants the truth. task is to evolve [Id. 107-08.] Appeals that such an instruction tended The Court of observed requirement of thereby impair the constitutional “to dilute Nevertheless, beyond Id. at 108. proof a reasonable doubt.” entirety the court the trial court’s instruction in reviewed its charge and concluded the basis of the trial court’s “forceful proof beyond requirement on the a reasonable that no doubt” due-process had occurred. violation Ibid. carefully

We charge have reviewed trial court’s on each concerning count the indictment. The instruction the State’s each, prove burden to each element of is offense stated restated, frequently only general proposition not as a of law specific concerning also in but the context of the instructions each the three offenses which defendants were indicted. concept guilt prove of State’s burden to a beyond permeates charge. reasonable doubt trial court’s Viewing charge entirety, fully the trial court’s its we are right satisfied that defendant was not denied his constitutional only be proof beyond convicted a reasonable doubt. Sufficiency N. of the Evidence

Defendant contends that his motion a trial new granted ground should have been on the the jury verdict against weight was of the evidence. He also asserts prove State guilt beyond failed to a reasonable doubt. Those are record, contentions without merit. this On there is reviewing no basis on which court could conclude that the jury verdict constituted justice.” a “manifest denial of R. Moreover, 3:20-1. our review the record demonstrates be question yond that a “rational trier of fact could have found the essential elements which defendant was crime[s] [of beyond a doubt.” Virginia, reasonable Jackson v. convicted] 307, 319, 2781, 2789, 560, 443 U.S. 99 S.Ct. 61 L.Ed.2d 573 (1979).

V. Sentencing-Phase Issues Aggravating A. Duplicating Factor Element of Crime points

Defendant out that his death sentence based solely on an aggravating duplicated factor that an element of

137 this he was convicted. Defendant claims crime for which it to nar- is unconstitutional because fails statutory structure eligible penalty. Defen- class of murder for the death row the issue dant did not raise this below. Ramseur, supra, v. State this issue in

This addressed Court 123, 188, stating: 106 N.J. 524 A. 2d eligibilityas class in which a defines both death There is one of murder factor penalty pays itself. who another to selection for the The defendant well as c) (Sec. knowing eligible purposeful or murder is therefore death commit (since will, proof any aggravating payment itself further factor such without factor, c(4)(e)), subject penalty aggravating if that to the death an Sec. be is nothing outweighs any mitigating aggravating But is factor factors. there is that. The of the circumstance unconstitutional about definition whatsoever penalty precise, and the therefor consistent. (footnote omitted).] A.2d [Id. Phelps, 231, 108 v. U.S. recently, More Lowenfeld Supreme S.Ct. (1988), States 98 L.Ed.2d 568 the United constitutionality imposed upheld the death sentence of a Court found aggravating factor under Louisiana law where sole jury, knowingly “the created a risk of death by the offender La.CodeCri m.Pr great bodily person,” harm to more than one 905.4(d) (West 1984), duplicated one of the oc.Ann. art. (“When categories first-degree the offend statutory murder great bodily kill or harm specific intent to inflict er has 14.30A(3) La.Rev.Stat.Ann. upon person.” more than one § (West 1986)). constitutionality the death upholding In the of statutory ob and the Louisiana scheme the Court sentence served: narrowing required clear to from this discussion that the function It seems us ways: regime capital may provided punishment either of two of be these for a offenses, capital legislature may as Texas narrow the definition of

The itself done, guilt finding responds jury to this so that the of and Louisiana have concern, capital may broadly legislature or the more define offenses findings narrowing by jury aggravating provide at the circumstances phase. penalty ^[********] Here, jury "narrowing performed by guilt phase the function” was the at the guilty provision it found of three of murder under the

when defendant counts great bodily specific intent to inflict harm that "the offender has a to kill or

138 sentencing jury more than one The fact that the upon person.” is also required aggravating to find the existence of an circumstance in addition is no part narrowing the and so the fact the constitutionally required process, aggravating circumstance one of the elements of the duplicated crime does not make this sentence infirm. There is no but that the constitutionally question death-eligible Louisiana scheme narrows class of murderers and then at the

sentencing mitigating allows for the consideration of phase circumstances the exercise of discretion. The Constitution no more. requires U.S. 108 S.Ct. at at 246, L.Ed.2d at 582-83.] [484 555, holding Ramseur, We adhere to our and find that no infirmity exists aggravating constitutional because the factor by jury found mirrors an element of the offense of which defendant was convicted.

B. Instructions on Aggravating Factor Defendant contends that because aggravating the sole factor alleged by the procured State —that “defendant the commission by payment the offense promise payment of anything value,” of pecuniary 2C:11-3c(4)(e) duplicated N.J.S.A. an ele — ment of by the crime found jury guilt phase, the trial court’s failure explicitly to direct jury disregard prior its determination and deliberate anew effectively “directed a ver dict” for the penalty State in phase. point at issue was not raised below. Defendant relies on Ragland, State v. (1986). There, N.J. 519 A. 2d 1361 defendant had been by convicted jury offenses, of several including unlawful possession weapon. of a charge, N.J.S.A. 2C:39-5. Another possession weapon of a by felon, 2C:39-7, convicted N.J.S.A. had been severed to prejudice, avoid but was then tried before jury. same The trial court’s instruction to jury before it deliberated on the severed count included these comments: Gregory If find Ragland, you defendant, convicted previously

for the crime of and that he shotgun, robbery was in of a sawed-off possession * * * have indicated as you guilty charged then must find him you as this Court. [Id. A. 2d 1361.]

We charge held the improper, observing phrase that the “as you have indicated” suggésted that the need not redeter- mine in the proceeding severed whether defendant had been in possession weapon. unlawful of a Id. at 519 A .2d 1361. We also in noted that such circumstances the appropriate instruction is one that informs jury disregard the prior its verdict and to deliberate anew on the issue of posses unlawful 195-96, sion. Id. at 519 A.2d 1361.

We carefully have reviewed the trial charge court’s in penalty phase. the occasions, On several both before and after summations, counsel’s the court jury informed the of the prove State’s burden to the alleged aggravating beyond factor a reasonable doubt duty and of its to reject the aggravating if factor the State failed to Moreover, sustain its burden. Ragland, unlike the ultimate issue jury for this in penalty the phase was not jury whether the would make finding the same as it had in the proceeding, antecedent but rather how the jury would aggravating balance the mitigating and factors.

Obviously, trial courts in capital future in cases which this issue arises should explicitly inform penalty-phase the jury that under our Capital Act, guilt Punishment and sentenc ing phases are separate considered as proceedings. Hence, the jury in penalty phase should be informed of duty its concerning deliberate any anew facts established the verdict guilt-phase determination that the State relies on to prove factor, an aggravating right and of its to reach a differ ent concerning conclusion such penalty phase. facts We acknowledge that it would be the rare case in penalty- which a phase jury, especially presented one not any new evidence penalty phase, would penalty-phase make determinations that contradict its verdict in guilt phase. are fully We satisfied this clearly understood the penalty proceedings separate were guilt from phase case, and required jury’s fresh determination on the existence of aggravating factors, mitigating as well as its ultimate concerning decision appropriate punishment, based on its balancing of aggravating mitigating factors. We find no aspect

error in this of the trial penalty-phase court’s instruc- tions. Mitigating

C. Absence of Evidence Defendant contends that mitiga because no evidence in sentencing tion was offered in his behalf in proceeding, jury discharge was unable to its constitutionally-mandated de termination appropriate punishment. whether death was the We find no merit in defendant’s contention. analogizes

Defendant sentencing phase of his case to that Koedatich, supra, State v. 112 N.J. 548 A. 2d 939. There, the permit defendant refused to attorney present his to any mitigation, evidence in presented and counsel argument no mitigating factors. We held “mitigating factors must introduced, regardless be position.” defendant’s Id. at 2dA. 939.

At the sentencing phase case, outset of the in this counsel informed the trial court that neither the State nor defendant would any introduce additional evidence in penalty phase, rely but would on the evidence during that had been adduced guilt phase. Defense counsel expressly represented that defendant had been consulted and concurred in that decision. represented Defendant’s counsel also that he intended to present argument jury to the concerning mitigating two factors that he would jury ask the to find. One such factor—that significant defendant had no history of prior activity— criminal 2C:ll-3c(5)(f), N.J.S.A. stipulated by to the State. The factor, other mitigating factor, the so-called “catch-all” N.J.S.A. 2C:ll-3c(5)(h), was to supported by be evidence during adduced guilt phase. The trial court jury instructed the before argument counsel’s that based on stipulation, counsels’ it would obligated be to find the existence of mitigating factor reflecting prior no history of activity. criminal During closing argument defendant’s counsel asserted that evidence in the record demonstrated defendant’s involvement in civic and chari- table activities an extent sufficient enable mitigating conclude that the factor “catch-all” had been estab- jury’s lished. The verdict sheet that it indicated found mitigating both factors advanced defendant had estab- been Hence, lished. we find no basis whatsoever for defendant’s attempted analogy sentencing-phase of this record that in fully jury’s We are Koedatich. satisfied that the determination appropriate punishment of the on was based its of consideration mitigating by the factors on relied defendant. Adequacy Sentencing-Phase

D. of Instructions raises challenges adequacy Defendant several to the of the during trial court’s to the jury sentencing instructions the proceeding. separately We consider of each the asserted defi- the charge. ciencies in Explain

1. to Mitigating Failure Factors Although objection defendant raised no at trial to court’s the sentencing proceeding, instructions the he contends us before that the adequately explain trial court failed the jury the function the mitigating of factors and failed to define for the jury mitigating the by factors relied on defendant. Defendant 166-71, primarily II, 123, relies on v. Bey State 112 N.J. 548 (1988), There, A. 2d 887 after of decided the trial this case. following sentencing proceeding in which the trial court request incorporate charge declined defendant’s that it in its an explanation specific mitigating of the factors on defen which general explanation function, dant and a relied their of id. at 166, 887, 548 princi A.2d we considered and elaborated on the ples that should inform mitigating a trial court’s instruction 168-70, factors. at Id. 548 A.2d 887. We observed that both this and Court the federal courts prescribe had “declined to specific language guide jury’s mitigating the consideration of factors,” 168, 887, id. at 548 A.2d and determined “the require specific Constitution does not and detailed instructions * * * respect mitigating aggravating circum- stances, long no possibility so as there is reasonable jury capital sentencing procedure in the misunderstands its role meaning of mitigating or misunderstands and function 169, (quoting circumstances.” Id. at A .2d 887 Peek v. (11th Cir.1986)). Kemp, 784 F.2d We held in Bey 1493-94 reading statutory II language that the trial court’s of the did meaning adequately explain specific mitigating not of defendant, factors advanced and also noted that the trial jury court’s failure to have informed the it could consider evidence, mitigating guilt all penalty phases, in both the jury's understanding had inhibited the of function of miti gating 170, 548 evidence. Id. at A .2d 887. did not deter We error, mine whether those deficiencies constituted reversible being independent grounds there reversal the sentence. Id. A .2d 887. case,

In explanation this trial court’s clearest function mitigating nature and factors in the occurred course introductory during of its jury comments voir dire: jury defendants, them, If the determines that the or either or both of are guilty murder, purposeful knowing proceeding then a must second take place imposition appropriate penalty. which is to consider It appropriate great early would not be for our me to describe law in detail at this Nonetheless, stage proceedings. imperative you of the it is that are aware of jury’s the fact the issue is to be decided virtue of the decision with respect presence factors, aggravating to the or absence of what are called and beyond outweigh any mitigating whether such factors a reasonable doubt factors. aggravating may Jersey Legisla- An factor be said to be one which the New might says severity punishment ture tend to increase of which would appropriate otherwise be for an offense. mitigating may Legislature says might A factor be be one said to which the punishment severity tend to decrease the of the which would otherwise be appropriate for an offense. proven, present. against a crime is Mitigating * * * ^[********] then If the If committed, aggravating mitigating they factors can include such jury must determine whether is the extent of a defendant’s satisfied that factors are factors. present, at least things any mitigating as the one then aggravating participation, particular jury factor or factors are must manner in which factor has been and weigh particular them character, mentality, background my features of his and conduct. In instruc- tions, mitigating jury may I will describe in some detail the factors which the together any pertinent consider other circumstances that should be as- sessed. jury any It will be aggravating the function of the to determine whether and, so, present, they outweigh any factor or are mitigating factors if whether beyond factors a reasonable doubt. During sentencing proceeding, the trial court did not repeat explanation its of the nature and mitigating function of However, factors. the court’s instruction made clear to the aggravating mitigating and performed factors oppos ing sentencing functions proceeding, aggravating factors supporting imposition penalty death mitigating evidence, including guilt all evidence in phase, opposing the imposition of the penalty. death Peek Kemp, supra, v. Cf.

F. 2d at (although 1490-91 explain instruction did not role of factors, mitigating it clearly concepts indicated aggrava of mitigation tion and opposites are presented by would be parties opposing purposes). The trial court stated: important penalty proceedings It is upon to note that the will not focus guilty. whether already or not the defendant is You have returned a verdict in you beyond

which concluded guilty a reasonable doubt that the defendant is of Rather, presented the murder. what is here will be concerned with whether or which, balance, you not there are factors lead to concludethat the defendant penalty. should suffer the death argument alleged aggravating You will hear as to the factor which the State contends, may contend, imposition or penalty warrants the of the death in this case, in addition you cognizance. to the evidence at the trial of which can take aggravating alleged procured factor which is is that the defendant by payment promise commission of payment anything the offense pecuniary aggravating value. That is one of the factors listed in our statute. aggravating And may that is the factor that the State contend calls for the imposition penalty. of the death hand, you argument On the other mitigating will hear as to factors which the argues alleged defendant aggravating factor, exist. As you with the should also consider the pertaining evidence at the trial mitigating as evidence to the factors. mitigating alleged are, first, The two factors which are to exist that the history activity. defendant might has no parenthetically criminal And I state point parties at stipulated, agreed, this that the have or that the defendant has history activity. Therefore, no you of criminal place when come to that on the you you’ll get, yes, form to the has no that will have answer that defendant history activity, he does of criminal because not. mitigating alleged any The is which to second factor other factor is relevant offense, the or record or to the circumstances of the defendant’s character which, presume, you shortly. I there will statements made to be some beyond aggravating you has Should find a reasonable doubt that the factor obligation proven, your mitigating it the been then will be to determine factors present. also doubt, prove aggravating beyond While must a the State factors reasonable any presented the lesser If defense has a burden. evidence has been factor, you respect by mitigating to a then are bound law to it and consider weigh any you against aggravating may present. it factor have found The mitigating factor, merely defendant does not have to establish the existence of introduce evidence them. weigh mitigating against You will to be asked the evidence of factors aggravating proven. factor law, special Under our a on a form must return verdict which will be writing provided you, stating or to in existence nonexistence of the factor, aggravating mitigating alleged. and the of the evidence factors exist, any aggravating If factor is the verdict state found must also any beyond outweighs mitigating whether factor such a reasonable doubt all exists, you any aggravating beyond factors. Should find that a factor aggravating factors, outweighs mitigating reasonable doubt this factor all that responsibility Judge impose penalty then it’s the the death in this case. you’re beyond aggravating If not satisfied a reasonable doubt that the factor exists, you’re beyond aggravating not satisfied reasonable doubt that the factors, outweighs mitigating factor all then the would defendant be sentenced by imprisonment life, thirty years the Court to a term of from and whatever imposed, parole term would be could defendant not be considered for until thirty years prison. he has served in attempt The aggra- trial court did not to “define” either the vating by factor relied on State or mitigating factors by relied on closing arguments by defendant. The defendant’s explained counsel simple clear and terms the nature and mitigating function of factors advanced defendant: What, essence, right stage we are at is now this a situation where agreed mitigating you has there State that is one factor exists which must find case, any type in the and that that is Rob has Marshall never had of criminal any record of kind. believe, why legislative you history I reason when look to the penalty Jersey clearly mitigating death when it came into New that is a factor, because, you will, feel, people quite rightly, you is if and I think if life, law-abiding point you may position live at some time be in a where you may people you draw, will, you maybe have to ask to allow if a credit

145 of the fact that because led such a life. There are who you’ve people obviously law-abiding have not led lives and have been in situations where been in they’ve jury jury front of a and the has convicted them of a and the capital offense, jury law-abiding, will hear that this has led a not life, has person but, fact, juvenile had a has had a record of other offenses for the most record, and, part, has lived a life that in all and forms never conformed to what our ways, shapes, at least society requires. agreed In this case it’s been Marshall has led a Rob law-abid- particular ing mitigating and that must life, consider that as a factor. you sic******* mitigating Judge Greenberg The other factor that referred to deals with mitigation other circumstances and factors which a consider in may

regard to the death In this in addition to the fact that case, penalty. particular things, Rob Marshall has no criminal record, there’s certain at least with prior regard he to his has which he is entitled for life, done, consider. you among things, He was involved other with the Ocean in, Business- County campaign men’s Association. You’ve heard that. He was chairman for the United and for a number of worked with them in Way, years community raising for United In affairs, addition to he served with his money Way. that, involving leagues on various social and certain family activities, swim other things of a nature. community go through things I don’t want to stand here and the whole that he’s litany done in that —either for other or for his or of a forty-six years people family civil nature. Suffice it to the record is substantial in that say, area, you right mitigating have an absolute to consider that as a factor. Although arguments by of counsel can no means serve court, as a Taylor v. Ken by substitute for instructions 478, 488-89, tucky, 436 1930, 1936-37, U.S. S.Ct. 98 56 L.Ed.2d 468, (1978), 477 prejudicial effect of an omitted instruction light must “in totality be evaluated of the circum including jury, all the instructions to the [and] stances — * * Whorton, arguments of counsel Kentucky v. U.S. 786, 789, 2088, 2089, 640, 99 S.Ct. (1979); 60 L.Ed.2d Kibbe, accord Henderson v. 145, 431 U.S. 10, 97 S.Ct. 152 n. 10, (1977). 1736 n. 52 L.Ed.2d 211 n. 10 Following arguments, counsel’s the trial court instructed the jury concerning duty its weigh, qualitatively, aggravat- ing and mitigating factors in order to determine “whether or not the defendant is to be sentenced to death”: aggravating mitigating at the which is relevant to the trial, The evidence reintroducing considered without the shall be factors, by you necessity proceeding. evidence at this convincing has the burden of a reasonable doubt that The State you beyond aggravating factor has been If not so convinced, proven. you’re but will be sentenced defendant will not receive the death Court penalty, which I will mention to to a term of imprisonment, you shortly. mitigating do not have to be convinced of their factors, With you respect establishing existence. That is to the defendant doesn’t have the burden of say, mitigating If has factors. evidence been with presented respect any weigh mitigating then are bound the law to consider it and it factors, you by against aggravating factor that have found any you present. aggravating mitigating are factors, Of to both course, respect you judges of the truth of the evidence Should find that the sole presented. you aggravating alleged this factor has been and that evidence of at least proven mitigating weigh aggravating one factor is must then and the present, you mitigating and the will to death if are factors, defendant be sentenced you only aggravating outweighs a reasonable doubt that the exists and convinced beyond mitigating mitigating and all of the a reasonable factors, factors, beyond doubt. weighing aggravat- If reach the deliberations where you point your you’re ing mitigating it’s to understand that this is not factors, you important a mechanical It doesn’t or the number process. necessarily simply depend upon of factors on each side. It does careful and considered depend your

judgment aggravating gravity, as to whether or not the factor is of such weight, outweighs or it seriousness, that, reasonable all of the beyond doubt, mitigating evidence as to factors. aggravating If are convinced a reasonable doubt that the factor you beyond outweigh aggravating or factors I should factor, since there’s one say, only — alleged outweighs mitigating all then the defendant factors, will be sentenced — to death virtue of verdict. If are not convinced by your you beyond aggravating reasonable doubt of the existence of an factor or not convinced aggravating outweighs a reasonable doubt that factor which exists beyond any mitigating all then the defendant will be sentenced to a term of factors, for a with no for at imprisonment period thirty life, years parole possible least thirty years. record, In the context of the entire we think the conclu inescapable sion is jury this did not its ] “misunderstand[ * * * capital role in the sentencing proceeding meaning or Bey v. mitigating II, and function of State circumstances.” supra, Kemp, N.J. at Peek v. (quoting 548 A .2d 887 supra, 784 F. 2d at 1493-94). Confronted with evidence of a single aggravating procured factor —“defendant the commis sion of by payment promise the offense payment value,” anything pecuniary 2C:ll-3c(4)(e) N.J.S.A. —the repeatedly jury court instructed duty weigh, on its against factor, aggravating mitigating factors it found exist, in order to determine appropri- whether death was the punishment. jury ate was instructed to find—and it so prior found—that history defendant’s lack of criminal was a mitigating mitigating factor. That factor’s self-evident mean- ing, by explanation rationale, enhanced defense counsel’s of its would rendered any have almost redundant by instruction trial court intended to scope illuminate further the or function jury necessarily of that factor. The understood that in order to sentence, appropriate determine the weigh signifi- it was to record, prior cance of defendant’s by any unmarred criminal convictions, against gravity aggravating factor ad- vanced the State.

Concerning mitigating factor, the second which the court “any defined as other factor which is relevant to the defen- dant’s character or record or to the circumstances of the offense,” the court instructed the to consider all evidence in determining trial the existence of that factor. Defen- counsel, closing argument, dant’s in specifically relied on evi- civic, business, dence in the record of philan- defendant’s and thropic support factor, jury activities to and the found that factor to have Unquestionably, been established. in the context charge of the court’s argument, jury and counsel’s the must have duty weigh understood that its significance was to the civic, the business, evidence of defendant’s philanthropic and activities, combined with the any prior absence of criminal record, against gravity aggravat- the evidence of the sole ing factor. do desirability

We not doubt the precise of more instructions clarify that would scope even further the and function of those mitigating explain factors and would in more detail the ratio underlying weighing nale aggravating mitigating and arriving factors in appropriate punishment, II, at the Bey see supra, 166-71, 112 887, at N.J. 548 A. 2d and specifically we

148 fashioning II in Bey courts to follow the dictates of trial mitigating But in instructions on factors. assess- penalty-phase charge sentencing ing adequacy of the this overall standard, principle underly- proceeding, our consistent with II, ing Bey jury is that the understand its function and the meaning mitigating of the circumstances. We function and in this no doubt that that standard is satisfied case. have Adequately 2. Trial Court’s Instructions Did Inform Jury Responsibility Its to Determine Death Whether Appropriate was Punishment? charge

Defendant contends that the trial court’s to the jury merely weighing aggravating diluted function to that of its factors, convey mitigating jury and did not to the that its duty if was to determine defendant should live or die. We find jury adequately that the was instructed and could not have duty appropriate misunderstood that its to determine the punishment for defendant’s crimes. required consistently capital

We have cases that jury court’s instructions “communicate to the that a death product application verdict is not the of a mechanical statute, jury’s judgment but a reflection of the normative ” fitting appropriate punishment.’ is death ‘the State v. II, Bey supra, (quoting 548 .2d887 N.J. A State v. Ramseur, 188). supra, jury at 316 n. 524 .2d N.J. A must understand that its role is to determine whether the II, 162-63, Bey supra, defendant shall live or die. atN.J. 548 A.2d 887. during sentencing proceeding

On several occasions jury’s trial court empha- described function terms that sized would decide whether defendant should be executed: You will now be asked to determine the whether defendant shall be sentenced

to death or not.

[********] proceedings It is to note that the will not focus important upon penalty guilty. or not You whether the defendant is have returned a in verdict already guilty which concluded a that of you beyond reasonable doubt the defendant is is the murder. what here will be concerned with or Rather, whether presented not are factors on which, there lead to conclude that the balance, you defendant should suffer the death penalty. ^[********] gentlemen, and Ladies now have to decide whether or not the you defendant

is to be sentenced to death. ultimate decision in Quite obviously, your regard is both of from the State of New extremely important, perspective and from the of the defendant. Jersey viewpoint significance I understand fully to the task difficulty respect will be I called undertake. am you upon Nevertheless, confident that will be oath. you equal your emphasized trial jury’s court also in function deciding punishment defendant’s was not “mechanical” but required qualitative a significance of the evaluation relative aggravating mitigating determining factors appropriate punishment: weighing aggravat- If reach the deliberations where you point your you’re ing mitigating it’s factors, to understand that not this is important you a mechanical It doesn’t or the number process. necessarily upon simply depend of factors on each It side. does careful and considered depend your

judgment aggravating gravity, as to whether or not is factor of such weight, outweighs seriousness, that, a reasonable it all of beyond doubt, mitigating evidence as to factors. aggravating If are convinced a reasonable doubt that the factor you beyond outweigh aggravating or factors I factor, should since there’s one say, only — alleged outweighs mitigating all then the factors, defendant will be sentenced — to death virtue of verdict. If by your are not convinced you beyond aggravating reasonable doubt of the existence of an factor or not convinced aggravating outweighs a reasonable doubt that beyond factor which exists any mitigating all then the defendant will be sentenced to a term of factors, for a imprisonment life, with no for at period thirty years parole possible least thirty years. At the conclusion of the charge, acknowledged the court magnitude jury’s responsibility: greater I don’t want to burden exists place any than virtue upon you

the law. You have a difficult task. this However, you accepted responsibility as citizens to the oath that was public pursuant administered There’s you. nothing different than the peculiarly is to consider way proof any proceeding criminal case or criminal from that in which all any reasonable depending treat persons any evidence to them. questions, upon presented 150 good for the You’re to use consider evidence expected sense, only your give been it a fair and reasonable admitted, which it has and

purposes light knowledge in the common tendencies construction of natural your beings. of and inclinations human Although charge specific also included instructions concerning weighing aggravating mitigating factors, and instructions contained numerous references to the court’s obligation jury’s to decide between life and fundamental death. convey specific capital jury No words are mandated to to a reading of its A fair charge essence task. trial court’s question beyond clearly demonstrates in duty its formed of to decide whether defendant should live or die. Constitutionally

3. to Charge Was Entitled Defendant tha,t Jury Reject Penalty Could the Death Based on Evidence, any Mitigating Notwithstanding Outcome of Weighing Process?

Relying primarily 302, on Penry Lynaugh, v. 492 U.S. 2934, (1989), 109 106 S.Ct. L.Ed.2d 256 defendant asserts a requirement precluded constitutional that “the sentencer not be rejecting from mitigating death sentence on the basis of any evidence, balance, even if on a determination has been made aggravating that the outweighs mitigating factor factors.” argument, Defendant’s which reject, we misconstrues the Su preme opinion in Penry unsupported Court’s and is otherwise Supreme decisions the United States Court this Court. principle

The relevant constitutional is state that “a could not, eighth amendments, consistent with the and fourteenth prevent the considering giving sentencer from effect to background evidence relevant to the defendant’s or character or against the circumstances that mitigates offense imposing the penalty.” supra, 318, death Penry, 492 at U.S. 2946, 109 S.Ct. 106 L.Ed.2d at 278. Eddings Accord v. Oklahoma, 104, 869, (1982); 455 102 U.S. 71 1 S.Ct. L.Ed.2d Ohio, 586, 2954, Lockett v. 438 U.S. 98 S.Ct. 57 L.Ed.2d 973 (1978). Supreme specific Court has “never held that a balancing mitigating method for aggravating factors in a capital sentencing proceeding constitutionally required.” is 164, 179, 2330, Lynaugh, Franklin v. 487 U.S. 108 S. Ct. (1988). Although 2d Capital L.Ed. our Punishment Act, L.1982, Ill, incorporates c. the Model Penal Code recom mendation that of aggravating mitigating evidence and factors weighed against should be each other in determining appro sentence, ALI, priate 201.6, 3, Model Penal Code p. comment § (Tent. 9, 1959), 71 Draft No. Supreme upheld Court has capital-sentencing procedures that require do not the sentencer weigh aggravating against mitigating factors. Gregg v. 153, 197, Georgia, 2909, 2936, 428 859, U.S. 96 S.Ct. 49 L.Ed.2d (1976). 888 We have no doubt that Jersey’s procedures New requiring weighing aggravating of and mitigating factors against each other reduce the likelihood that sentences will be imposed arbitrarily or capriciously, Gregg Georgia, supra, v. 194-95,

428 2935-36, 886, U.S. at 96 S.Ct. at 49 L.Ed.2d and prevailing exceed constitutional concerning standards the sen duty mitigating tencer’s to consider evidence. Penry,

In holding, Court’s narrow applying Texas’ statute, capital requires murder which prerequisite as a for a death jury sentence an finding “special affirmative on three issues,” juries was that given Texas must be instructions that opportunity give allow them the mitigating effect to evidence deliberating while special on the issues. It is an understate ment to observe that the procedure Texas in in Penry effect accorded substantially less opportunity capital for Texas defen rely dants to on mitigating evidence Jersey’s than does New capital-sentencing procedure. suggestion There is no whatso opinion ever the Court’s in Penry require of a constitutional jury, ment that a weigh instructed to aggravating mitigat and ing factors, ignore must then be allowed to the result of that weighing process reject solely death sentence on the basis mitigating evidence, recognize any nor do we require such ment under our state constitution. Against Imposition Penalty- Death Presumption

E. plain Defendant raises as error the trial court’s failure presumption to a instruct the that defendant was entitled against penalty. rejected the death We considered and Rose, argument supra, identical State v. N.J. at ruling 2d to our in that case. A. adhere

VI Other Issues A. Prosecutorial Misconduct alleges prosecutorial Defendant 116 instances of misconduct trial, they require in the course of and contends that reversal carefully his conviction and death sentence. We reviewed have allegation. complained each We have evaluated the conduct specific segment in the context of the of the trial in which alleged misconduct occurred and the context of the entire proceeding, twenty-two days, which consumed trial exclusive of days jury the seven devoted to The selection. trial was hard- emotional, fought highlighted by aggressive and intense and witnesses, of principal cross-examination defendant and Wayne Billy employed range McKinnon. All counsel a wide of advocacy techniques respective to of advance interests their clients. We majority have concluded that the vast prosecutorial merit, asserted claims of are misconduct without perhaps better overly-zealous advocacy characterized as than Hence, only allegations misconduct. prose- we address those significant legal cutorial misconduct that we believe raise is- sues. outset,

At principles we reiterate those that should guide the prosecutor conduct a in a criminal trial. The primary duty of prosecutor is not to but obtain convictions justice Farrell, 99, 104, see that is done. v. 61 State N.J. 293 (1972). Thus, A.2d 176 duty is as much his from refrain “[i]t improper produce wrongful methods calculated to conviction every legitimate as it is to use bring just means to about a

153 105, one.” at (quoting Id. 293 A .2d 176 Berger v. United States, 78, 88, 629, 633, 295 1314, U.S. 55 S.Ct. 79 L.Ed. 1321 (1935)). importance attach to principles we those is capital enhanced the context of a case: Because death is a harsh this Court of uniquely sanction, will more necessity prejudice resulting find from readily misconduct in a case prosecutorial capital than in other criminal matters; who fail to take their prosecutors seriously stringent obligations strongly ethical particularly cases thus risk capital postponing, jeopardizing, and even the enforcement of the law. Ramseur, supra, v. [State N.J. 106 at 524 A.2d 324, 188.] prosecutorial

Whether requires misconduct reversal of depends a criminal conviction on whether “the conduct sowas egregious deprived Ramseur, that it defendant of a fair trial.” supra, 106 (citing N.J. at 524 A .2d 188 Kelly, State v. 97 178, 218, (1984)). N.J. 478 A .2d 364 The determination of prosecutorial whether right misconduct denied defendant the a fair trial must take into account the tenor of the trial and the degree responsiveness of both counsel and the court to improprieties Ramseur, they when occurred. supra, See 106 524 determining prosecuto N.J. A.2d 188. “In whether prejudicial rial misconduct is trial, and denied defendant a fair we consider whether timely defense counsel made a proper and objection, whether the promptly, remark was withdrawn whether the court ordered the remarks stricken from the record jury disregard 322-23, instructed the them.” Id. at 524 (citing .2d 137, 141-42, A Bogen, State v. 13 N.J. .2dA (1953)). 1. Representation that Other Witnesses are Available to

Support Prosecutor’s Version Facts The cross-examination of prosecutor began defendant exchange: with this opening did hear me Q. Sir, tell this you statements that at or about

the time of wife’s death were in your debt excess of you $300,000? Did hear me that? you say A. Yes. going figures disagree, And I’m Q. some here if put and, I’d up you bring it if let me know so we can in the appreciate you from the banks people gave figures who me the to testify— object. editorializing I He’s and it’s [DEFENSE COUNSEL]: If improper. suggest he wants to ask a that’s fine. To from the bank and question, people as his what have is and he you part knows it. question improper I’ll withdraw it. [THE PROSECUTOR]: THE COURT: It does evidence within the It incorporate will be question. disregarded. figures, If have about Q. these let me you any questions know and we’ll right? All subpoena proper people. A. Fine. That’s not [DEFENSE cross-examination COUNSEL]: should be way “ * * * and we’ll

conducted, subpoena proper people.” objection THE COURT: I’ll sustain the to the form of the question. prosecutor’s The “bring statement that he would * * * people from the testify” banks clearly improper. was implied prosecutor’s It that the characterization of defendant’s accurate, finances supported was by would be other uniden tified witnesses if contested defendant. See ABA Stan 3-5.8(b) (2d dards 1980) Criminal Justice ed. § {ABA Standards) (“It unprofessional is prosecutor conduct for the express his or personal her opinion belief or as to the truth or falsity any testimony or guilt evidence or the of the defen dant”), Standards, and ABA supra, 3-5.8(a) (“It unprofes is § * * * sional prosecutor conduct for the intentionally to mislead as to the may draw.”); inferences it State v. cf. Rose, supra, 112 N.J. at (prosecutor’s A. 2d 1058 statement produced that he could experts” have testify “ten differently from experts defense improper.). was impro priety, however, was beyond harmless a reasonable doubt. The point critical precise issue was not the extent of defendant’s indebtedness but whether defendant experiencing serious difficulties, financial a fact defendant conceded on the cassette tape he dictated to his brother-in-law.

2. Unsupported Prosecutor’s to Senility De- Reference cedent’s Father

During cross-examination by Thompson’s counsel, defendant testified that while he prison, was in family his had father, received financial assistance from Mrs. Marshall’s who $50,000. During had loaned defendant and his sons recross-ex- by prosecutor, following colloquy amination occurred: And Maria was an was she sir? child, not, Q. only Yes. A. Her father is a retired Q. physician?

A. That’s correct. How old is he? Q. A. or three. Seventy-two Going a little senile at the as I understand it. time, Q. present suggestion. him ME. ZEITZ: That’s a medical conclusion for to make a That is not a conclusion that I believe— MR. KELLY: I withdraw question. How’s his health? Q. ago, A. He’s had a stroke about three but he’s in otherwise years partial good health. gave, isn’t it a fact that the he was done as a result Sir, $50,000, Q. money grandchildren nothing of his love for his and it had to do with sir? you, given thought A. that’s not true. He would not have if he I No, money was in involved in this. any way in Is he here court Q. today? A. he is not. No, during Has he here time this been trial? Q. any A. His health would not him to be here. permit prosecutor’s implication ap- The that decedent’s father’s was record, proaching senility, unsupported by any evidence Standards, 3-5.8(a) clearly improper. supra, ABA See § (“The prosecutor may argue all from reasonable inferences unprofessional is evidence the record. It conduct for the prosecutor intentionally to misstate the evidence or mislead the draw.”); (“A may lawyer as to the inferences it 3.4 RPC * * * * * * trial, (e) any shall not allude to matter that will evidence.”). supported by point not be admissible at is- willing sue—whether defendant’s would father-in-law be provide financial assistance to defendant and his sons if he sufficiently competent comprehend were the likelihood that implicated defendant was in the homicide—is far too collateral primary prosecutor’s to the issues in the case for the infraction Nevertheless, highly to constitute error. it was reversible cross-examination, shot,” improper “cheap prosecu- and the question attempt tor’s after it was asked did to withdraw nothing impression by conveyed to remediate the false the' question. strong A curative instruction the trial court appropriate. would have been Vouching Testimony 3. Truth McKinnon’s of credibility

The most critical issue at trial the of was Billy Wayne During prosecutor McKinnon. the summation purported made to for the statements vouch truthfulness testimony: of McKinnon’s gentlemen jury, Ladies and there is an ancient defense used in is such this, trials as defense that has been this courtroom, around this long long for a it will be courthouse, time, and around this courthouse for a to when a has time and that in a such as come, is, case this, co-defendant agreed, in order save tell to to then truth, attack the himself, you plea bargain, agreement that was reached with if that co-defendant. And you long enough enough, cross-examine him hard and and if on that you plea harp agreement, just might confusing jury be successful in will you and they and fact.

acquit, that’s a added.) (Emphasis **####** gentlemen jury, Ladies and in order himself, save Billy Wayne gave McKinnon had to tell truth. That was the deal. Because when he caught we checked it and statement, out down and and if we up sideways, him one lie —and heard the you He waived testimony. immunity. Every- thing against caught he said be could held him. If we him in one then he lie, facing charge. be

would a murder Although prosecutor free to argue was that McKinnon’s credible, testimony improper was it prosecutor was for the personally credibility to vouch for his suggest or to that the * * * truthfulness testimony of his had been up “checked out down sideways,” obviously and and referring to matters outside Standards, the record. supra, 3-5.8(a) (“It See ABA is § * * * unprofessional prosecutor conduct for the intentionally to mislead the as jury may to the draw.”), inferences it and 3-5.8(b) (“It unprofessional is prosecutor conduct for the § express personal opinion his or her or belief as to the truth falsity any testimony defendant.”). impropriety, This however, significance was of limited because counsel for both vigorous Thompson, through cross-examination and defendant exposed McKin- closing argument, extensive lie, bargain, extremely plea favorable his non’s motivation credibility testimony. in his McKinnon’s inconsistencies to an extent sufficient to minimize the obviously contested prosecutor’s infraction. impact of the During Facts Misrepresentation 4. Summation any rights to the testified that he had waived Defendant wife, policies insuring insurance his proceeds of at least two life $600,000 issuing proceeds paid by had been and that sons, contingent companies to defendant’s beneficiaries. testimony during by Thompson’s cross-examination Defendant’s counsel, however, respect was unclear of whether defendant rights policy proceeds and whether defen- had waived his to all proceeds any paid realize benefit from the to his dant would sons: life The Prosecutor asked if some of the of the various Q. you proceeds

insurance that existed on wife Maria’s life have been one your paid by policies recall that? or more Do you companies. A. Yes. Have some of those been Q. policies paid? proceeds A. Just recently, yes. Have been to

Q. they paid you?

A. No. right do have the to When a a life insurance they Q. person buys policy, the that should be the benefit on is, nominate the beneficiary; person paid behalf of the insured? A. Yes. named? In Maria’s was there

Q. beneficiary policy primary A. Yes. I her I should make that In all of her

Q. say policy. plural. policies. A. Of course. Who is the of her insurance? Q. primary beneficiary A. I was. naming contingent In addition can name a to Q. primary, you beneficiary

in a life insurance policy? A. Yes. significance “contingent What was the Q. phrase beneficiary”? rights, A. If is for the first not alive or some reason waives their beneficiary contingent the are the then to proceeds paid beneficiary. contingent Who or who the Q. were beneficiaries of beneficiary on Maria’s life of which were those the policies you primary beneficiary? beg A. I sons, Robbie, Chris and John. pardon. My your And when use the what I to be Q. you is want sure —when phrase you —this rights,” “You did use waived execute some kind of a phrase your you to the insurance document that said would hold them harmless companies you paying paying from to children instead of to money your you? money A. IYes, did. Regardless of Q. whether or convicted in you’re this case? acquitted A. IYes, did. force Q. to do that? Anybody you any way A. No. Could have waited if Q. and, were in this claim you you acquitted case, made

to benefit of those policies? A. Yes. Is reason

Q. there a did not? you why

^##***** A. our financial Well, situation income and my virtually dropped my was — money pay children needed income, needed income, needed to our family defense. added.) (Emphasis prosecutor In the course of summation the stated: The bulk of that insurance was taken out twelve-month before period Maria Marshall’s death. I don’t care if it’s I don’t care if accidental; it pertains getting in a killed car on a That insurance was in Thursday effect, only. get give he has the here and talk about audacity up contestability clauses, going get that he’s not you impression He's any money. already guarantee received six hundred I thousand can dollars, ladies and you, gentlemen, if this acquit defendant, the checks will be you mail within a week. Make no mistake about it. Defense immediately counsel objected, prosecutor and the offered to withdraw the Following prosecutor’s statement. summation, defense part counsel moved for a mistrial based in prosecutor’s representation to that defendant would benefit from proceeds the insurance in the event an acquittal. motion, The trial court denied the but the instructed jury as follows: anything if I

And should that differs say from your recollection, recollec- your language tions will I control. don’t have the but precise here, he did make reference fact to the I that, believe, six hundred thousand dollars in insurance in the has to the defendant Marshall. evidence been paid proceeds already the the I is somewhat in that evidence is that believe, different, case, however, rights six hundred thousand and, his to that particular defendant waived the of his sons in trust. the monies have been for benefit therefore, paid Although record unclear on whether defen the $600,000 pro in had realized financial benefit from dant sons, rights his to already to his or had waived paid ceeds remaining policies, prosecutor’s assertions proceeds of the “already hundred defendant had received six thousand that * * * you if guarantee you acquit “I can this dollars” defendant, week,” in within a were the checks will be the mail and, such, testimony obviously of the as mischaracterizations Standards, 3-5.8(a) (“It highly improper. supra, ABA is See § * * * intentionally unprofessional prosecutor conduct for may draw.”), mislead as to the inferences it to (“It 3-5.8(b) prosecutor unprofessional conduct for is § personal opinion his or belief as to the truth or express her * * * defendant.”). any falsity testimony Neverthe less, testimony preclude did the inference that defendant’s not benefit, pro indirectly, he could at least from insurance balance, although prosecutor’s On statements ex ceeds. permissible argument, we ceeded bounds of are satisfied any significantly-prejudicial impact from these remarks was ameliorated the trial court’s curative instruction. Calling His Castigating 5. Sons as Wit- Defendant nesses

Among prosecutor’s inflammatory portions of the the most following summation to the fact that defen- was the reference three dant’s sons each testified as defense witnesses: bring he has And his three That’s obscene. testify. audacity boys thing. being And I’m not I do the same them, critical because would probably To his on that witness stand is and for there's a boys obscene, put place anything hell for him. He use and he will do will he will anybody, say get anything, including his own out from under. And that’s Robert family, mistake Marshall. Make no about it. Oakley mistrial, The trial for a court denied defendant’s motion based part court portion on this of the summation. The neverthe- 160 prosecutor’s

less characterized the comments as “inflammato- ry,” “beyond type “an emotional statement” and the bounds jury The to propriety.” court instructed the that the reference disregarded, place “a in hell” for defendant should be and further instructed the as follows: regarding And there was comment the the finally, Prosecutor fact sons of defendant defendant —that testified as the defense part right bring case. A defendant in a criminal case has a or witnesses any bring in other his and witnesses on subpoena any any testify behalf, way against no adverse inferences should be drawn the defendant because merely his testified as sons witnesses on his behalf. Defendant contends that the trial court’s instruction was “woe- inadequate,” fully prosecutor’s and that the comment could be to suggest understood that defendant should be sentenced he death because called his sons as witnesses. prosecutor’s The challenged thrust of is remarks Arguably, testimony self-evident. defendant’s sons’ concerned only peripheral aspects except for that of Robbie case— Marshall who stated that at defendant was home noon on 6, September 1984, time, McKinnon, according to that he Thus, met Parkway. defendant Garden State it was not prosecutor implied unreasonable to have that defen dant’s sons had been called as witnesses not so much for the testimony presence substance their their mere but because father, suggest support as witnesses would support for their that would have partici been unwarranted if had defendant Thus, pated in the murder their mother. in emotional and inflammatory terms, prosecutor expressed his revulsion at perceived what he “using” as defendant’s his sons in order gain acquittal. an observation,

We are reminded of Justice Clifford’s dissenting DiPaglia, State v. N.J. A .2d385 (1974): charged proceedings. trials Criminal are A not emotionally is prosecutor to conduct himself in expected a manner to a lecture hall. He is appropriate graphic jury, long entitled to be forceful and in his summation to the so he as

confines himself to fair comments on evidence presented. comments, however, merely were not “force- prosecutor’s emotional, inflammatory highly they were graphic,” ful and anger jury and and arouse the capacity the to possessing a responsibility to render thereby from their solemn divert them Although prosecutor’s re- the on the evidence. verdict based forceful permissibly of beyond the boundaries marks went distinctly on a collateral their focus was advocacy, we note that of trial, issue fact. not on a critical and contested aspect of the could acknowledge the trial court’s curative instruction that We it forceful, that but are satisfied more we have been significant prejudice defendant. any to adequate to ameliorate Focusing on in Vic- 6. Remarks Summation Prosecutor’s tim

(a) Guilt Phase summation, prosecutor his the concluded guilt-phase In his following comments: argument with the her I and know that she loved I know but know Marshall, you didn’t Maria eight her For months know that she loved husband. I know and boys. you in arms of another woman. his afternoons were the that knew that spent lady she continued she continued to clean his clothes, continued to cook him, She love she loved him, she to make because the house continued clean, to keep give him chance. She to a second him. wanted to start all over. wanted She grow, right to to her in watch her continue full, had to live life to boys She a graduate get their married and have families of from school, watch them greed. And his and his it all because of desperation but he tossed own, away is Marshall. that Robert Oakley us, improperly remarks defendant contends that these Before qualities of the victim and jury’s attention on the focused the of a fair trial. deprived defendant Williams, 113 supra, in v. N.J. We addressed this issue State adducing 446-54, 1172, prosecutor, after 550 2d where the at A. plans qualities the and future concerning personal evidence victim, the of the victim homicide on virtues the elaborated during arguments guilt phase opening closing and in both the sentencing phase of the case. We observed: and and evidence trial will involve Any necessarily testimony physical capital though pertaining in a cannot be used evidence, admissible, victim. This that it manner to so confuse or inappropriately calculated impassion intertwines irrelevant emotional considerations with relevant evidence. There relating are when to the occasions evidence victim’s character and personality e.g., be of critical defendant’s may aspects trial, assertion probative or in self-defense as before provocation. Where, however, matter us, bearing guilt no victim’s character has on the substantive issue to be not imposed, prosecution comment the evidence in penalty may highlight manner that serves victim’s virtues order to inflame the only jury- tedly Maryland, supra, result matory commentary. ^[440] * * * [Id. impose emotion-charged proceedings creates the at 448 ^[********] is the It is 113 N.J. arbitrary constitutionally required [(1987)]. penalty 482 U.S. 451-52, without Failure to capricious ^[496] 453-54, inordinate purge at imposition 501, successfully exposure juries A.2d 1172.] S.Ct. unacceptable of the death capital such comments ^[2529] unduly trials reach a at risk prejudicial, penalty. from'admit- 96 L.Ed.2d what Booth v. verdict inflam- will Similarly, Pennington, State v. 119 N.J. 575 A .2d816 (1990), we prosecutor “consistently observed empha victim, sized the background character and as well as the impact 566-67, of her on family.” death her at Id. .2dA 816. We prosecutor’s opening statement, concluded that the as guilt- summations, well as penalty-phase his and reflected an intention “to divert the from the material facts to the victim,” using worthiness of the “the family character and of 571, the victim to jury.” excite the Id. at 575 A .2d 816. perceive significant We prose distinction between the cutor’s comments about the vietim in this case and the offend ing comments and Pennington. Williams The statements about Maria during period Marshall’s conduct of defen infidelity supported dant’s were evidence the record and theory were consistent with the of the State’s case—that defen arranged dant for the of primarily murder his wife to collect proceeds pay her insurance and off his debts. There was no demonstrating evidence that the signifi victim had shown cant antagonism during toward defendant his relationship with Kraushaar, Sarann tape and defendant’s to his brother-in-law stated that the victim continued to him love and to wanted Thus, “start prosecutor’s over.” merely comments do not her characterize rela sympathetically, but the victim describe to as in a manner relevant “critical tionship defendant Williams, supra, 550 A. 2d N.J. trial,” pects of the proofs concerning defen support the State’s and tend to for the homicide. dant’s motive end with However, prosecutor’s comments did not give to defen willingness victim’s about the his observations an concluding His statement was second chance.” dant “a sympathy the victim: appeal for toward obvious grow, right her to to her to watch continue full, had a live life boys She get graduate married have families their from school, watch them * * *. own in the bearing any no on issue That had substantive comment category inappropriate prosecutorial falls within the case and Pennington. The and in Williams argument criticized in we however, victim, much were references to prosecutor’s in either less emotional than those more circumscribed and far prosecu- Pennington. Based our review the Williams summation, those we are satisfied that guilt-phase tor’s entire any substantive to the victim that were unrelated references inflammatory, we find nor neither extensive issues were beyond doubt. harmless a reasonable them

(b) Sentencing Phase argument, sentencing-phase which prosecutor’s brief, to the reference extremely contained this abbreviated victim: anything to, heinous in our than you I cannot think of more society really in this member; kill let alone a else, family hire

know, somebody somebody case, wife. your ^[********] civic-mind- Maria Marshall was Marshall had no criminal history. Maria prior give did her the of thirty years. and this defendant not

ed, option prior criminal his lack of a defendant had offered Because factors, prosecu- mitigating as record his activities and civic did not argue qualitative value properly could that their tor Although aggravating weight of factor. overcome 164

prosecutor depreciate significance was free to of defen- mitigating evidence, argument dant’s that the victim could qualities claim the same on by diversionary, relied is defendant away focusing attention from the mitigating evidence em- and phasizing the of justification lack for the homicide. We find argument inappropriate, but no have doubt that this isolat- prosecutor’s ed statement in the closing argument brief not did capacity have the to affect the jury’s process. deliberative B. Ineffective of Assistance Counsel Defendant contends that the performance ineffective trial guilt sentencing phases counsel at both the deprived him of right his constitutional to effective assistance counsel and to fair trial. Fritz, 42, In (1987), State v. 105 N.J. 519 A. 2d 336 this Court adopted, slight modification, the standard for ineffective assistance counsel Supreme established Court in 668, Strickland v. Washington, 2052, 466 U.S. 104 80 S.Ct. (1984), 674 L.Ed.2d Cronic, 648, and United States v. 466 U.S. (1984). S.Ct. L.Ed.2d 657 This Court held that “a criminal defendant is entitled to reasonably the assistance of competent counsel, and performance that if counsel’s has been so deficient as to create a probability reasonable that these materially deficiencies conviction, contributed to defendant’s right the constitutional will have been violated.” State v. Fritz, supra, 105 N.J. at 519 A. 2d 336. This standard applies capital Davis, 341, 356, cases. State v. 116 N.J. (1989). 2dA. 1082

The contention that defendant was denied effective guilt assistance counsel in the phase is utterly without merit. counsel, Defense a certified criminal trial attorney, see Rule 1:39, provided a zealous and conscientious defense of his client throughout protracted this trial. Counsel obviously well- prepared, thoroughly record, familiar with the and persistently forcefully advocated his client’s throughout interests

165 examples of deficiencies re proceedings. The the guilt-phase the no more than a fraction of by represent defendant lied on was in the counsel confronted strategic decisions which With lengthy sharply-contested proceeding. this course of and strategies suggest trial hindsight, it is not difficult to different might the is settled that pursued, but law that counsel have performance, ‘strate assessing adequacy the of counsel’s “[i]n investigation and facts gic thorough made after of law choices ” virtually unchallengeable.’ plausible options to are relevant 776, 819, 3114, 3139, 97 Kemp, 483 Burger v. U.S. S.Ct. (1987) J., 638, (Powell, (quoting dissenting) Strick L.Ed.2d land, at at supra, 466 U.S. at 107 S.Ct. 80 L.Ed.2d 695). fairly the counsel’s be quality Nor can of effectiveness issues, focusing ignoring of by on a handful while assessed performance in the of the State’s totality of counsel’s context guilt. our close compelling evidence defendant’s Based on record, reject contention scrutiny of the entire we defendant’s performance was deficient under the Strick that counsel’s standard. land/Fritz phase, focuses respect penalty to the defendant

With present alleged mitigating failure to evi on defense counsel’s of the role advocate” his dence and counsel’s “abdication rejected closing argument jury. We have heretofore mitigating contention evidence defendant’s absence sentencing proceeding prevented jury from dis appropri charging duty its whether death determine noting punishment, defense counsel relied on evidence ate factors, guilt phase prove mitigating that the existence State, mitigating stipulated by and that one factor was mitigating found both factors relied on defendant. 140-141, 586 We that several Supra at A.2d at 157. also note reputa good defense witnesses trial testified defendant’s extensively in the defendant community, tion testified education, life, concerning background, civic family his Although mitigat argues that additional activities. defendant available, unpersuaded in the ing evidence was we are mitigat- context this record the failure to adduce additional of ing sentencing proceeding evidence in the constituted ineffec- tive assistance of counsel. It is self-evident that in view convicted, of of was of the crime which defendant the selection mitigating rely on to of evidence which was matter some delicacy, requiring carefully prospect consider counsel to the of arguments, evidence jury's rebuttal and rebuttal as well as the anticipated any mitigation to reaction evidence that was of- unwilling second-guess strategic fered. are We counsel’s issue, particularly jury’s decision this in view the determi- mitigating nation that both factors offered had been estab- lished. closing argument

Defense counsel’s is faulted for its emotion, brevity, its lack of and its concession that “whatever do, you just thing it,” the feel is we live can with a remark “relieving jurors characterized defendant any legal as the responsibility they may moral felt his have client.” Defendant affirmatively contends that counsel’s “failure to request sentence,” a life performance with his combined overall penalty phase, was “so unreasonable and unsound as to be constitutionally defective.” acknowledge closing

We that argument of defense coun- brief, sel in sentencing proceeding quite although longer prosecutor’s somewhat than the closing argument that followed. explained Defense counsel the two miti- gating relied, factors on which defendant noted that one was stipulated, and cited evidence in the supported record that factor, other and then argument concluded his follow- ing statement: thing One I have to tell this, about which I think an you makes it individual decision for each one of and that is you, that that only the death way agree be is if can all penalty twelve to do it imposed you So unanimously. in have a you, essence, hands I power your that, quite candidly, would never generally have hands, as a don’t my because, we lawyer, serve as

jurors. knowing I have So no way what it must be like. consider the death All I can is I when this, individually say hope you did in own each able to reach whatever opinion you your you’re penalty, thing just we can live with it. that whatever feel is the to do, heart, you closing argument constituted assessing In whether counsel’s sentencing phase, of counsel in the we ineffective assistance brief, closing argument, although prosecutor’s that the note addressing mitigating factors relied on response included a both Hence, to assume that by defendant. it is reasonable argument closing was formulated content of defendant’s McCotter, response. Martin v. anticipation of the State’s Cf. (5th Cir.1986)(“[C]ounsel did not want to 796 F.2d 821 n. prosecution, enabling prosecution act as a ‘foil’ for the ”). ‘reply all the harder.’ strategic closing argument a

We also infer from counsel’s appeal jury, to the in favor of a any decision to avoid emotional or death deci- low-key emphasized that that the life statement juror. In the responsibility the of each individual sion was grave offense of which defendant context of this record and the convicted, argument juror’s that each closing a focused was responsibility for defendant’s life attention on his or her moral easily death cannot be discredited. comparison closing argument the simply by way We note of 884 F.2d capital Lynaugh, in the case of Romero v. delivered (5th Cir.1989), lawyer by experienced an Texas trial whose killing participated rape in the and of a client had brutal within fifteen-year-old girl, had assaulted two other women crime, laughed presence jury in and the of the weeks presented. of the details of the crime was when evidence guilt in Although argued extensively counsel had the defense sentencing as phase, closing argument phase his in the follows: deliberating thought and the this.

I the time took into you put appreciate you going being brief. I’m to be brief. I have a for not extremely reputation stand Jesse? Jesse, up.

The Defendant: Sir?

Defense Counsel: Stand up. jury. got intelligent You are an You’ve that man’s life in extremely your it or

hands. You can take not. That’s all I have to say. at [Id. 875.] rejecting closing argu-

In contention that defendant’s counsel’s representation, ment constituted Fifth ineffective the Circuit observed: engaged There is no that Wood in substantial trial. for question preparation

He obtained access file, to even the state’s prosecutor’s report investigator, and each of the three observed trials Romero’s confederates. jury. He knew the knew the He As the events of there is community. trial, nothing suggest mitigating jury. facts not were before the any Given his difficult we are not to fault Wood’s situation, effort prepared highlight jury burdening not them with the heavy responsibility by losing avoiding arguing obvious risk of them the absurd. do so To insisting argument jury on comes close forma in case. Had the pro every strategy might returned a life sentence the have well been seen as a brilliant range move. That it did not does mean it not was outside the reasonable assistance. professional

[Id. 877.] reasoning

We are accord with the of the Fifth Romero, supra. Circuit in What constitutes an clos effective ing argument capital crime, depends case evidence, short, record, the circumstances—in the entire general there is no requiring rule counsel such cases to appeal specifically to spare the defendant’s life. argument may another, succeed in case one can fail in responsibility and our competent capital is to insure that coun sel, having an “expertise regarding special considerations present cases,” capital Davis, 356, in supra, v. State 116 atN.J. 1082, 561 A.2d strategic made a reasonable choice on based adequate investigation. unpersuaded We are that defendant’s highly-experienced qualified and unreasonably counsel acted in formulating closing his argument jury. any event, to the In we have no doubt even closing argument that if counsel’s were deficient, deemed to be there was no probability reasonable that deficiency materially contributed to defendant’s death sen Fritz, tence. 58, See State supra, v. 105 atN.J. 519 A. 2d 336. Constitutionality Capital of Punishment Act C. Jersey’s Capital Punishment contends that New

Defendant amendment, eighth reject- that we Act the contention violates 185-90, Ramseur, 188. supra, in at 524 A.2d We ed N.J. issue. prior rulings on this adhere our Error D. Cumulative if to have that even errors found oc

Defendant contends sentencing proceedings guilt in and are deemed to curred harmless, requires effect all errors have been cumulative and sentence. Defen reversal of defendant’s conviction death Orecchio, 2d 106 A. 541 dant v. N.J. relies State ** * (1954), legal “the in recognition for that where errors its unfair, aggregate the trial our fundamental their have rendered concepts granting a new trial constitutional dictate the jury.” an 541. Justice impartial before Id. 106 A.2d Jacobs, Orecchio, in also ob writing for a unanimous Court served: justice in The administration of criminal our democracy requires sound just. how abhorrent accused,

both the and the means be no matter end guilt, seemingly charged to a fair trial offense nor how evident is entitled safeguards have for substantive which stood surrounded and procedural English speaking This, countries. course, centuries as bulwarks liberty legal trial not which into the but do errors, does mean that the incidental creep prejudice rights proceedings be unfair, not of the accused or make may conviction; invoked to an otherwise valid under these circumstances it upset * * grossly unjust grant a new trial *. would be to the and its people State [Ibid.] proceeding, every as in acknowledge capital that in this We reversed, capital has errors other case that this Court were capital course of trial. The fact that cases are committed contested, protracted, consistently implicate sub- vigorously legal virtually the course tle and difficult issues assures apparent. imperfections be of each trial some errors and will rulings judges, appellate judges, in the Trial unlike make their review, trial, opportunity heat of without deliberative experienced not most and conscientious trial even the judges perfect. can be

170 capital cases,

But even in general we adhere to the principle that defendant is entitled to a fair trial but not a “[a] perfect States, 604, 619, one.” Lutwak v. United 344 U.S. 481, 490, (1953). S.Ct. 97 L.Ed. Our “meticulous and comprehensive procedure reviewing capital cases” stems from our conviction that such cases “subject we must record scrutiny,” recognizing to intense that a very defendant’s 1, 112 45, 92-93, life is at stake. Bey State v. N.J. 548 A .2d846 (1988). determining In whether errors that occur in the course capital proceeding require of a reversal of either the verdict or sentence, we make determination in the qualitative considers, context of the entire case, affecting whether the error was either clearly capable verdict or the sentence. at 94-95, 548 A.2d

[Id. 846.] standard, We continue to believe that which we have assiduously applied record, to this is able to “accommodate our heightened responsibilities concerns and in reviewing death-pen alty prosecutions.” Id. at 548 A .2d 846.

In the standard, context of that carefully we have reviewed each of the errors identified in the opinion. course of this review, Based on that recognizing and the evidence of guilt defendant’s overwhelming, fully we are satisfied that individually considered aggregate, and in the the errors commit- ted at trial clearly were not capable affecting either the verdict or the sentence.

E. Proportionality Review As authorized the Capital Act, Punishment N.J.S.A. 2C:ll-3e, defendant specifically has requested that this Court determine whether defendant’s disproportionate “sentence is penalty imposed cases, in similar considering both the crime defendant,” and the deferring its determination until a full record can be made argument had thereon. We acknowl- edge request defendant’s for proportionality review. That re- view shall be pursuant undertaken briefing to a argument by schedule to be the Clerk of the Court after established counsel. consultation with

VII. Hearing Alleged Brady Remand to Consider Violation

Introduction 1985, trial, January approximately year In one before defense court, counsel filed an motion with the included omnibus which pretrial discovery defendant’s demands. One of those demands following: that the disclose defense counsel the was State given all considerations or consideration to or behalf Any promises of the witnesses or or the witnesses. “considera- expected hoped by By anything, bargained not, defendant refers to whether for or tion”, absolutely arguably which could be of value or use to a witness or to of concern to persons * * * including criminal, but not limited to civil or tax witness, immunity grants; anything arguably else could reveal an motive or interest, which against bias in the witness in favor of the the defense or act as an plaintiff inducement or color testify testimony. 29, 1989, years On March three after the trial’s —some in York conclusion—an article the New Times disclosed the promise existence of two documents that discussed a that had County been made former Prosecutor Edward Turn Ocean prosecute bach in the fall of 1984 not to Sarann Kraushaar cooperation investigation return for her truthful in the prosecution’s defendant. The file also contained two other promise. Asserting documents related to none of defense, those documents was disclosed to the defendant moved hearing before this Court for a to determine whether a violation 1194, Brady Maryland, supra, v. 10 U.S. S.Ct. motion, granted L.Ed.2d had occurred. defendant’s We limiting the issue for decision on remand to “whether corre spondence respect grant immunity of a for Sarann defense; not, Kraushaar was disclosed to if it was was non-disclosure willful and improperly information with- held from the defense.”3 hearing, parties stipulated

At the outset of the that the prior documents had not disclosed to the defense been to or during pendency during trial. State conceded hearing that all or some of the documents were discover- improperly they able and had been withheld because were possession Thus, of the State and had not been disclosed. only question hearing be determined at the was whether the nondisclosure was willful. Our review of the trial court’s findings will include our determination of whether the nondis- closure was “material” to the defense in that it capacity had the to affect the outcome of the trial.

The court proof determined that the burden of was on the prove State to “to the satisfaction of the court” that the failure to disclose the documents had not been willful. The State offered the testimony investigators of the prosecutors and who presented defendant, had assembled and against the case in- cluding former County Turnbach, Ocean Prosecutor Edward former Assistant Prosecutor Kelly, Supervisor Kevin of Investi- gations Churchill, James A. Sergeant Mahoney Daniel and Lieutenant Edward Murphy Major of the Crimes Unit of the County Office, Ocean Sterling Prosecutor’s and Jones of the Through State Police. testimony, their sought the State prosecutor demonstrate that the investigators and the who had contact immunity with the correspondence had not been in- production volved in the of discovery Moreover, the case. sought the State to establish that the Kraushaar documents had inadvertently been misfiled and misfiling was parenthetically Brady 3We note irrespective that a violation can be found of good However, prosecution. faith or bad pursuant request faith of the to a defense, acquiesced, scope to which the State hearing of the remand occurred, and, was Brady limited to a determination of whether a violation had so, prosecutor's Nevertheless, if whether the actions were willful. we reach and Brady determine the ultimate issue under the withheld evidence —'whether guilt punishment. is material either to responsible for the State’s failure to have the corre- included spondence other with materials disclosed to the defense. credibility

The defense attacked the of the version State’s of through the facts cross-examination of the State’s witnesses through Sheehan, testimony of Patrick assist- another prosecutor County ant in the Ocean Prosecutor’s In Office. particular, sought defendant to establish of that because importance State, Sarann testimony of Kraushaar’s it prosecutors was inconceivable that the and investigators would among not knowledge promises have shared their themselves In attempt expose made to her. an knowledge, such shared suggest conduct, and thereby ques- willful defense counsel tioned the witnesses about their contacts and conversations with each at the Sep- other time of Kraushaar’s on interview 27th periods during tember time before and the trial. days testimony, After three court rendered the follow- ing findings: by representatives The initial interview Serann Kraushaar [sic] County place September 7, Ocean Prosecutor’s Office took within hours

after the murder Maria Marshall. Kraushaar was at the Prosecutor’s Office accompanied by Liston, attorneys, and was two Daniel Carluccio and Edward experienced acquainting both of whom were in criminal matters. them- After situation, they investigators selves with the to the indicated that Kraushaar speak departed, attorneys would with them and the after which the interview being regarded merely It conducted. is clear that Kraushaar was as person knowledge During of relevant facts. this interview Kraushaar regarding Marshall, furnished information the details of her affair with Robert plan respective spouses, the their to leave the financial difficulties that Marshall having, was the fact that insurance on Maria’s life would these difficul- solve ties, killed, the fact that Marshall had desire inferred a to have his wife as well as other matters. 27, 1984, September County On then Ocean Prosecutor was Turnbach called by telephone attorney Pellettieri, on the of Richard Altman the firm of Rabstein Altman, represented and of Trenton. Altman now Kraushaar and stated that she had additional information that she wished to disclose to the Prosecutor. immunity prosecution Altman the also raised matter of from of Kraushaar. stated, essence, feeling grant immunity The Prosecutor in his that a of was inappropriate suspected any since Kraushaar was not of criminal conduct. Altman, nevertheless, writing signed by was insistent that the some be Prosecu- assuring prosecuted tor that Kraushaar be would not if the she disclosed information. The Prosecutor reiterated that his office had no evidence of he had in order to the attorney prepared criminal conduct but her, placate by (S-l). The letter was read to in dated the letter September question him. On the same day, Altman over the and the content by telephone approved Sterling investigator Jones and State Police detective Daniel Mahoney county Pettito of the interview. John H. to Altman’s office to conduct Attorney went Pettito asked for the letter that Altman’s office was with Kraushaar. present and did not have it the Jones However, Mahoney had been read over telephone. Accordingly, Pettito had on his firm’s letterhead with them. prepared (S-2) stating, in had in that the letter been essence, prepared document question signed Prosecutor. Since the document was for and the prepared County signatures the and called the read Jones, Prosecutor, the of Mahoney Mahoney sign the same. and document to him and secured his Mahoney approval signed the document and the interview of Kraushaar was conducted. Jones him a of the returned to the Prosecutor’s office and delivered to copy Mahoney again. the The Prosecutor realized document. never saw document Mahoney He had them in the the discoverable nature of both S-l S-2. placed concerned in his office Marshall file assumed all and, thereafter, persons gave thought know of them. He no further them. would at the files and time, In the Ocean Prosecutor’s office correspondence County investigation pertaining files to a case were maintained person separately. on a in in the office filed at the time S-l S-2 pin who correspondence placed This understandable since S-l is a of a file. would be copy correspondence letterhead. letter and while S-2 is not a it is letter, attorney’s prepared Among manager Investigator his duties was The case was Edward Murphy. preparing of for to defense For that delivery attorneys. discovery packets investigation he maintain of files on his desk and he did would purpose portions Although in this he had the file for a so case. have may correspondence period in at some file was in a file room time, point correspondence placed accordance of the office. When dis- procedures Murphy prepared go through he did not files of cases and did not do so covery correspondence in this case. The and other items that police reports, laboratory reports n investigation section of the file. were obtained from the comprised discovery in S-l and as well as other were not included Therefore, S-2, correspondence The Prosecutor himself was not at all involved in the discovery packet. knowledge had no as to whether and, therefore, discovery process any particu- lar items were included or not. assigned Then Assistant Prosecutor Kevin was the Marshall case Kelly try stage proceedings. at an of the due to other trial commitments However, early and his time he did not take actual control of the file for a part status, period time. He Kraushaar trial. reference interviewed for No preparation grant made in such interview to the documents in or to any question any during from at no time immunity prosecution. Kelly pendency proceedings through went never saw the documents in correspondence files, and was not informed of their existence His trial question by anyone. prepara- insofar as it related to the file on the was limited to the trial or tion, case, investigation thoroughly preparing of the file. While an portion attorney might go through trial well it would file, every piece correspondence might also be understandable that a not do that unless he were person searching for a item. particular Then Assistant Prosecutor Patrick Sheehan assisted at the trial. Prior Kelly During to trial he had for and handled a prepared motion. discovery proceedings of the he never saw at least had no pendency recollection of ever having seen S-2. He did at see sometime, however, S-l the correspondence Although file. his recollection is not clear as to the I am completely matter, satisfied he that saw it at some time after the Marshall trial had been concluded. It is inferrable from the fairly [sic] evidence that he did not thoroughly review the file in for the correspondence preparation discovery motion. acknowledged prosecutor’s The court might office negligently filing Nonetheless, have handled the of the letters. emphasized the court that the nondisclosure was unintentional: filing I am satisfied that from an unnamed apart person only persons the Prosecutor’s office who were aware of the existence of the documents in Investigator were the Prosecutor and question any way County Mahoney. Neither of these individuals was familiar with what was personally actually sent in In fact, the evidence demonstrates discovery. that each assumed that the items would be included in the discovery packet. addition, In the court “presence observed that the or absence upon of motive bears whether an wrong intentional would be committed.” In regard, any court found that motive “substantially nondisclosure was outweighed by the motive to disclose.” That conclusion was based on the court’s assess- ment materiality of the of the letters to defendant’s case: Prosecutor [T]he would have been aware that he could demonstrate that a substantial of Kraushaar’s was told on portion story September 7,1984, twenty discussion of days prior He was aware of any what the immunity. testimony together McKinnon would the fact Billy Wayne be, that it would not have been for McKinnon to have been involved in the plausible murder either as (as alleged State) (as alleged an accomplice or as the shooter by at trial by Thompson) instigation co-defendant at the of Marshall. He was aware except

that he could demonstrate false and inconsistent statements made Marshall following the murder. result, As a the court concluded “that the State has shown that the failure to disclose question the documents in was not willful.” challenges Defendant ruling grounds related both to the hearing conduct of the sufficiency and to the evidence. We address those contentions in turn. Disqualification Hearing

A. from of Prosecutor’s Office hearing, Prior to the the trial court denied defendant’s motion County the disqualify Ocean Prosecutor and direct the office Attorney the to represent of General the The court State. disqualify refused to the Prosecutor’s office rea- several First, by the order not require sons. issued this Court did that represent Attorney hearing. the General the State at the Sec- ond, Attorney the the General’s office certified to court it requested “specifically County the Ocean handle Prosecutor to Moreover, the County the matter.” court noted that the Ocean trial, the prosecutor Prosecutor at time and the assistant case, longer tried defendant’s no who were members of that The court office. concluded that defendant had not met proving burden Prosecutor’s office dis- should be qualified: * * * just garden hearing [This is] variety determine whether [the

withholding of the was done the failure willful. documents] wilfully [sic], ’te*»)'#}!'### hearings These are held of the is types routinely State representation handling had Prosecutor not a routinely by the matter. It’s situation that seems to call for a of the Prosecutor. It’s not a situation in disqualification

which the Prosecutor has this of nefarious interest such as type personal, something financial stake in the outcome of case of that nature. personal argue I in a sense could has an suppose you Prosecutor interest always the outcome of but this is any case, not that of situation in which the type Prosecutor has of interest. type This arguably is of whether simply question two three doc- documents, uments should have been turned over to the defense. all That’s it is. challenges Defendant ruling, claiming court’s that the County Ocean Prosecutor had a conflict of interest at the time hearing. 1.7(b). remand See Specifically, RPC defen- dant justice contends that the compro- interests of would be mised vindicating Prosecutor’s interest in manage- its ment of discovery file in the Marshall case. Defendant argues that the court’s failure disqualify the Prosecutor’s hearing office resulted in an unfair and constituted an abuse discretion. Legislature Attorney conferred on the General the re- * * *

sponsibility general supervision to “maintain a over coun- ty prosecutors obtaining with a view to effective and uniform throughout of the criminal laws the State.” N.J. enforcement 52.T7B-103. In supervisory power, S.A. addition to that broad Legislature envisioned several circumstances which the Attorney particular General could aid in a prosecution. criminal proceedings Criminal in counties county prosecutor without a prosecuted by Attorney are the General. 52:17B-104. N.J.S.A. Attorney respond The General request can to a written for by assistance the county prosecutor. N.J.S.A. 52:17B-105. Legislature requires Attorney also the super- General to county prosecutor request sede the on by written the Governor. Supersession N.J.S.A. 52:17B-106. is discretionary “whenever requested in writing by grand jury or the board of chosen county assignment freeholders of a judge Superior the of the * * county Court for the Finally, *.” Ibid. county prose- superseded “[wjhenever cutor can opinion be in the Attorney General the by interests of the State will furthered be * * doing so *.” 52:17B-107a. N.J.S.A. argues

Defendant Attorney General’s decision not to intervene in the matter gross “constituted a of abuse discretion and in hearing resulted an unfair with unreliable Attorney results.” It is clear that the General was under no statutory obligation represent the State at the remand hear ing. See grand jury, N.J.S.A. 52:17B-106. Neither the freeholders, assignment judge, board chosen nor the County Ocean requested Attorney Prosecutor’s office Gen fact, eral’s Attorney assistance. In General’s office indi cated preferred that it that the represent Prosecutor’s office the State at hearing. decision, We will not disturb that particularly light separation-of-powers implications. of its Yaccarino, 342, 353, (1985) In re N.J. A. 2d 3 Cf. (decision by Attorney present judicial General’s office not to proceeding grand jury discretionary removal involved deter- branch). Moreover, by ordering mination executive re- hearing requesting found no mand we basis that the Attor- ney Accordingly, General intervene. we find no abuse of permit discretion in the trial court's decision to the Ocean County represent office Prosecutor’s the State at the remand Therefore, hearing. arguments we consider defendant’s other testimony hearing. the context adduced at the Discovery B. Limitation of discovery The court limited hearing the remand to doc- closely scope uments related to the of this Court’s remand argues order. Defendant by limiting the court erred discovery urges parte this Court “to issue an ex order directing the seizure of the entire Marshall file disinterested Shortly being designated officials.” after represent defen- dant at the hearing, remand defense counsel wrote to the Ocean County request Prosecutor to and all discovery any documents, or other reports, notes, memoranda, writings of as well as other any kind, information that be any available and may bearing which would be to the helpful defense, this any aspect inquiry. anything This but is not limited request specifically includes, relevant as to to, 1) those who had information about the existence of oral and/or written 2) channeling to Ms.

promises the Kraushaar; for it to persons responsible (both defense); 3) within appropriate office and to the parties the manner your in which the information was and/or maintained within actually processed your 4) and office; for the State’s failure to explanation it to the defense. supply The State informed the court at the hearing remand discovery provided had been at the time of defendant’s trial. specifically, More the State indicated that the “immunity doc- uments” had been counsel, forwarded to defense that’s “[a]nd it. Those are the documents. I don't anything. have I don’t know what he’s looking for. got He’s the discovery in this matter. He has the discovery.” later, full days Five defense filed a motion discovery, seeking an order that would provide County defendant with to Prosecutor’s Office the Ocean ] directf memoranda, writings documents, notes, reports, other any copies of and all may kind, which any be available and any information that as well as other defense, bearing any aspect in issue helpful of the matters to the

would be Jersey Supreme by hearing ordered the New that has been at the remand Court. motion, to the notice of attached attorney In certification an discovery neces- why was explained broader counsel defense sary: required be to rest on what counsel should not is clear that defense

[I]t trial, very given discovery the fact that provided as of the date of the as hearing apparent and non-disclosure of relevant is the for the remand reason Certainly, that time. that occurred at information and documents discoverable circumstances, highly appropriate appear for the court to be it would under the any prosecutor’s files for other made of the further search be to order that a defense, may helpful documents, any which not to the other information and for * * *. been disclosed have required latitude was further that wide counsel stated Defense the mental hearing pertained to the issues because murder prosecution in the of those involved processes trial. dis- argued that broader hearing, defense counsel

At the hearing than was in the remand permitted covery should be original trial: permitted * * * discovery that the kind of position that this isn’t seems to be State’s] [The get you’re They say product. entitled to you get. all what This is work dealing simply your very not say that we’re Honor included and I to this isn’t ordinary here. criminal trial with an guilt The issue or innocence. are not the Defendant’s The issues here product way they The work you this file. in fact the worked have to resolve is they dealing acted in with whether here. We’re is what we have to deal with knowing inquiry way engage good in that without no or bad faith. There’s get way they to be assured that we’ll There’s no have in that file. what complete picture. defendant, involving potential misconduct According cases discovery. possible require the broadest prosecutor’s office prosecu- result, requested that the entire defense counsel As a to the file on the Marshall case be turned over tor’s office defense: hide, solution, nothing they simply proper let only if have

I think the there, go through nothing I that’s fine. want If there’s them show us. page. page if I want to see note in that the court can file, file by every anything germane can that will to so I out be this case and if it, permit pull give anything I should let them it see, that not to look at they say you you in camera. responded were The State that there no more documents in promise nonprosecution their related to the offices Sarann Kraushaar: * * * since there was a or document two documents counsel] says [Defense together related that to this matter were not turned over the time of [at original there must be more. There aren’t more. He trial], any says showing a there must be how these documents were found. report prepared is There’s not a There no such Counsel doesn’t like the fact report. report that a was not made. I that. can’t There is no document help physical report just that I turn over to It doesn’t have to him. exist. argument

Defense counsel then focused his for additional discovery narrowly: more again In terms of I note that the first Prosecutor is discovery, specifically ignoring things for such as trial notes and request Kelly’s preparation saying saying gave is notes. don’t exist. He Nobody me they keeps they gave everything. everything He me his I of, narrow definition as under- give stand he has I of what me. understand the it, Prosecutor’s representa- missing

tion on the record that don’t have a on the items or how they report I came not to be understand they disclosed, but there must be all kinds of which memos, notes, documents, that file to these issues. He's pertain not denying. saying skirting He’s I’m not entitled it and he’s around it. requested Defense counsel court order the State to represent notes, whether there per- were documents or other sonal pertain memoranda of the witnesses that would to the grant immunity. ruling discovery motion,

Before on the the court acknowl- edged might appropriate that there be cases where it was turn State to over an file in entire matter. criminal court determined that this not such a case: arguably This is of whether two question three doc- simply documents,

uments have should been turned over to the defense. That’s all it is. ^****#*#

What turned shall be over is any notes, reports, correspondence, memoranda, relating alleged granted other statements or documents to the immunity generated Sarann whether Kraushaar, to the prior conviction this matter or pertaining to the conviction or subsequent interviews any statements of her taken be taken or to which have not been previously supplied. During hearing, request defense counsel renewed his for discovery. Narrowing request, sought produc- additional his he correspondence tion file which the Kraushaar letters had been misfiled: * * * the nature of the we have we are all entitled and [G]iven testimony heard, misplacing, the court should see what context was for the if I call it may describing as the State seems to be and the location that, it, of these eventually documents. I think we have —what else is in what this file looks it there, like, things go it is It is work is and that in and unlikely product. correspondence trying judge come out from the but while we are office, certainly preparing likelihood of for the Louisiana case Mr. Churchill, Churchill, Captain through talking would have looked the file and not found when we are about it, the likelihood that Prosecutor Turnbach would never have realized where it was * * * investigators that other located, wouldn’t have known about I think we it, it was and need know where what it was surrounded and how by plausible * * exchange is *. motion, again opposed

The State suggesting defendant’s just opportunity “counsel wants an to obtain that entire file and * * leafing through start it The court ordered correspondence produced inspection file be for the court. reviewing day,

After the file the next the court heard further argument concerning ought whether defense counsel to be permitted argued against to see it. The disclosing State the file “in product. because it was the nature of certainly work It’s rejected not discoverable material.” The argument court permitted and correspondence defendant to examine the file. file, Defense correspondence counsel reviewed the found might what have been additional Brady Specifically, material. defense counsel County discovered letters from the Ocean requesting Prosecutor’s Office to the State Police reimburse- expenses housing Billy ment for related to Wayne and food for family during McKinnon’s defendant’s trial. Based on that revelation, request defense counsel his for renewed the broad- i.e., possible discovery, est disclosure of the entire file in State the Marshall matter: through everything

The State went told us we have we need in this files, * ’ hearing case *. We’re of remand on the basis of process exculpatory evidence withheld. We want see the entire file. We’re not sure there’s nothing else we need to know. If lost letters for the they before, purposes hearing, gone through everything. brought this this forward. they’ve Nobody The Prosecutor’s role, Ocean office the disinterested which is their County has never told us about this. claim,

[********] For I those have several is reasons, your Honor, first applications. * * * their file. access to entire And the is third, your Honor, certainly anything ought in here I think that’s we have a recess of these copies proceedings go through go for a sufficient time to allow us to over and their all of them. I would be boxes, it can done under say, your Honor, appropriate can circumstances. The court direct that the Sheriff Officer or else anybody us. It can done in the Mr. be Millard or accompany certainly presence else from the Prosecutor’s but at this there’s no anybody office, we point, way everything ought can be assured that have we we to have on behalf of the Defendant and I think that if it’s not considered within the this remand scope going Court, there’s no that by Supreme question to have to somebody’s answer some for the that fact this information was not point disclosed. again opposed The State produce the motion to the entire file. acknowledged The court possibility discovery that the of the might justify disclosing McKinnon letters the entire file aat date, disrupt later but declined to hearing the remand for the purpose of permitting discovery. further

Subsequent Investigator cross-examination of Murphy re- vealed that office regularly engaged Prosecutor’s in the practice maintaining separate “discovery According file.” to Murphy, file photocopies that consisted of of discoverable police reports other copies and documents. The were made originals before the were filed and by were accumulated agent case in a separate folder in expedite delivery order to of appropriate materials to Murphy’s the defense. revelation of the existence of provided such a file an occasion for renewed requests defense expanded for an discovery. order of According counsel, to defense discovery contents of the prove file could determinative the issue of willfulness: Their whole withholding defense in affect claim of willful [sic] documents is that the could be located only place they is the correspondence again. there mistake clip[,] looked put ever there nobody If [the Kraushaar letters in the immunity are] discovery file, then obviously argument doesn’t wash. granted The Court defendant’s motion and ordered that produce State the discovery file. discovery day the next that the informed the court

The State empty: file was now go or directed that I here had last, when we were Honor, you requested Your file that he and look for the file room with Lt. discovery

back to the Murphy night. regard and we did that last had in that prepared a locked room to the file room. There’s left we went back here, When we in there. the file is We went where kept. anything, looking through didn’t find a the various boxes searched We file. discovery building and office and —which is in another went back to his Lt. Murphy this folder and the folder he found in his office when he was back there, private folder. can see what it it’s an old is, expandable you has — versus Marshall, on the “discovery copies, It has written top; “copies” —State was in it in his office was some personal of two” written there and what two Louisiana trial. items of that sort from the correspondence court and file and I submit to the present There was no discovery to the court’s attention. information court’s rul argues that the trial appeal, On defendant entire file access to the State’s ings denying defense counsel 3:13-3(a) provides criminal defendants with error. Rule were possession. That Rule access to documents the State’s broad obligation prosecution’s operates independently of the absolute material, otherwise, documentary or exculpatory to reveal supra, 373 U.S. S.Ct. Brady, the defense. See Rules, 215; Pressler, Com Current N.J. Court L.Ed. see also (discoverability exculpa of p. ment R. 3:13-3 569] [Comment Rules because intentionally left out of Court tory materials obligation an “irrespective prosecutor of rule the has absolute court”). and the to the defendant to reveal such material both discovery in the crim evaluating motions for When by determinations of setting, guided courts should be inal trial sought to the materiality of the materials relevance and the hearing, In the context of the limited remand presented. issues of the the nondisclosure only disputed the issue was whether willful, i.e., knowing and immunity Kraushaar documents proving to the court’s had the burden of intentional. State willful. the nondisclosure had not been satisfaction that sought theory The defense to undermine the State’s that an filing by innocent error had caused the nondisclosure demon- prosecutors strating among investiga- the interactions and naturally inevitably tors would and have led those who were immunity knowledge aware the of documents to disclose who, actively managing prosecution, duty those had the turn such documents to the defense. The defense over elicited testimony practices from the State’s witnesses about and procedures of pertaining the Prosecutor’s Office to the conduct investigations, files, produc- the maintenance of case and the discovery. tion of strategy, Consistent with that the defense sought correspondence of the discovery disclosure file and the file.

We believe that were inquiry both files relevant to the investigators into the state mind prosecutors working they on case provided because a context for evaluating relating the circumstances misplacement to the By examining Kraushaar documents. format those files, they contained, as well as the documents the trial court was better able the testimony to evaluate of witnesses. Inves tigator Mahoney, example, indicated that he had done case, work yet extensive on the had never encountered the correspondence Kraushaar documents in the clip. The trial discovery requiring court’s orders produce State to correspondence discovery clearly appropriate. files were require produce

Defendant’s motion to the State to the entire file in this case altogether footing stands on an different than correspondence motion to have the discovery file or file produced. According defendant, the revelation of additional Brady correspondence file, material in the as Kelly’s well as participation prosecution another where the conviction was challenged Brady grounds, pattern indicate a of prosecutori- al require misconduct sufficient to produce State to its entire file for examination defendant’s counsel. We dis- agree. discovery consider the of additional letters in the corre

We may from spondence improperly file that have been withheld separate an issue from the nondisclosure the defense to be of immunity, Kraushaar’s and we discuss it elsewhere in this 205-207, opinion. at 2d See 586 A. 195-196. Prosecutor infra years prior Kelly’s involvement another case to defendant’s trial, successfully challenged in which the conviction was Brady grounds, evidentially is irrelevant and inadmissible. See 186-188, Moreover, 2d 184-185. A. defendant’s infra allegation pattern County that the of bias assumes Ocean willfully office it Prosecutor’s acted when failed to disclose the immunity Kraushaar documents. The determination of willful very subject hearing, ness is the of the remand and the trial court, State, although placed proof it on the burden properly willfully: declined to assume that the State had acted anything, beg I am as I about to assume make not, say, any questions, any dealing I’m I with the situation which have to make assumptions. simply findings assuming wrongdoing certain of fact. That I’m not is all. or no

wrongdoing on the part anybody. On the basis of the evidence adduced at the remand hearing, discretionary ruling not we will disturb the the trial denying request court defendant’s entire file State’s be turned A over for examination. turnover order as broad as defendant, sought by required which would have an inter ruption hearing permit pro examination of the files duced, contemplated by granting was neither this Court’s order justified by a limited remand nor the record before trial court. Regarding

C. Limitation of Cross-Examination Willfulness argues improperly precluded Defendant that the court full exploration by limiting of the issue of willfulness cross-exami- nation of the State’s witnesses. He enumerates fifteen exam- ples allegedly improper limitation of cross-examination. De- emphasizes, however, “egregious rulings,” fendant two and we begin by examining of our consideration this issue rul- those ings. by

1. Prior Conduct the Assistant Prosecutor prosecutor trial, Kelly, Kevin the lead at defendant’s testified hearing direct examination at the had that he never seen the or heard Kraushaar letters of them until 1989. He testified letters, further that had he known of the of existence those he brought would have them to the of attention the court. On cross-examination, attempted defense counsel Kelly confront of the facts another case in which he had been the with prosecutor. In exculpatory that case had materials been wrongfully withheld from the objected, defense. The State indicating inappropriate impeach credibility that it was of by a witness to specific prior reference acts. See Evidence argued similar, Rule 55. Defense counsel that the facts of a prior incident were relevant and they admissible because tended part to show an “absence of mistake” on the of the actor. Ibid. proffer The defense made a that it would show Kelly that had been involved in a prosecution County homicide in in Essex 1976; that sometime it thereafter had come to the attention defense counsel that case exculpatory that materials had defense; been withheld from the in a subsequent habeas corpus proceeding, the federal District Court found that excul- patory willfully materials had indeed been withheld from the defense; and that granted the court had a writ habeas corpus in that case.

Defense counsel maintained that by both trials were marked similar claims of part prosecutor: mistake on the As information is here, which not what we call but by itself, exculpatory information that would assist of a state witness. The impeachment key give made, were didn’t

requests it. when the Kelly Later, defense found out judge judge, about it, before the Kelly’s it was a position was, mistake, I would have I told but didn’t them, know. again objected State admission the evidence: Assuming what is of evidence you say accurate, isn’t admissible to type just general something. to do It prove propensity is pursuit specific or motive. plan rele again responded that the material was counsel Defense accident, to show prove of mistake or not vant absence one general analogized the situation to the propensity. He (1979): Atkins, presented in v. 78 N.J. 396 A .2d State * * * being charged burglary. And In the Atkins case defendant was that he wandered into this house mistake and Supreme his position it was admissible he had committed other of New ruled that Jersey Court burglaries nine to show that it wasn’t a mistake. before years saying here all a know about it, Mr. is that this was he didn’t mistake, Kelly a that we be able to that used that kind of and I to should he has you prove say * * *. claim before however, disagreed, distinguished and defendant’s The court the Atkins from trial: case big we

I see a difference and the other. The case “mistake,” can between goes talking burglary, into a he some are a house and does about, person going I into and he made a mistake, affirmative act the house I says, oh, thought going to I into house and want show that he committed was they my burglaries. A vast difference between that situation and this situation. asserting in his is not that he did some affirmative act Mr. Kelly testimony asserting saying a not He’s I that he thinks that was mistake. He’s that at all. anything know it. didn’t about argued subsequently prior Defense counsel that incident [Kelly] is underlying relevant to “counter the notion that act, incapable is of this kind of who an individual who would * * argued this kind of that never do act State thing single discussing general said is has [defense counsel] every propensity. saying alleges that there incident where he that Mr. was a Kelly [H]e’s prior was aware of some information that wasn’t disclosed to the defense general he has a to do that and should be therefore therefore [he] propensity get allowed to into this. The court concluded evidence was under that the inadmissible any defendant’s of theories: in order to admit evidence under this the trier of fact must Well, rule, coming

ascertain and determine first and foremost that evidence is actually legitimate guise in for some the rule and not some reason under under merely getting jury, or it before a the trier of fact some other or before in this for case, reason. Stepping taking objectively, considering back and a look at it the factual of this case at it is clear if this time, to me that complexion present anyway coming comes in, of evidence it is for one two only type purpose perhaps evidence of but it can’t in as evidence of character, come purposes. Perhaps * * can evidence or lack it, character it be of character of *, only veracity

but event can’t it of evidence conduct. any you prove specific of I it is, think of instances of his [Rule Evidence] 22[d] specific [“]evidence tending be relevant as to shall inadmissi- conduct!,] only character!,] prove ble!”] Under Rule character it is that evidence, provided [of Evidence] [”S]pecific subject of not of be instances conduct a conviction of crime shall inadmissi so It >s n°t admissible under those rules. ble!,”] looking really is 4iS to Rule it obvious me at the situation all it that happening attempt prove is is it is an this witness has type propensity allegedly before, to commit this an act. He did it of similar, something again. 1 should he it did it therefore infer Basically is that simple. is So I conclude it under the rules of prohibited Court, rules expressly objection. I cited. will sustain the (Emphasis added.) independent Our review this issue leads us to conclude that the trial court ruled correctly when it refused to prior allow evidence incident to be introduced at the hearing. remand We only believe that the relevance testimony general propensity part was to show on the Kelly willfully exculpatory to withhold matter from the de specific prior fense. Evidence of acts is not admissible show general propensity wrong. 22(d). to do Evid.R. We therefore conclude that the trial court did not err in ruling pertaining Kelly’s that the evidence to in prior conduct involving case issue a similar was inadmissible. Payment

2. The McKinnon Letters argues Defendant next it was error for the trial court to prohibit interrogation defense counsel’s of Prosecutor Sheehan relating to the letters correspondence discovered file detailing expenses by incurred the State of Billy behalf Wayne McKinnon.

The letters were discovered defense counsel when correspondence the entire inspection file was turned over for pursuant discovery to a It alleged order. by defense additional, counsel that the letters an constituted Brady blatant 181-182, at 181-182. 586 A.2d supra at See violation. might significant but question be agreed that the court trial was a that it me. I not before on another day. Certainly to be determined

matter perhaps proceedings, nor occasion disqualify these see no occasion disrupt just anything. with the reason to do Quite frankly, proceed Prosecutor. No hearing. Sheehan, an Thereafter, Patrick called as a witness the defense office, County Prosecutor’s prosecutor at the Ocean assistant charges against co-de- prosecute the assigned to had been who trial, for that By way preparation Cumber. fendant Robert trial. Kelly at the defendant’s had assisted Prosecutor Sheehan discovery at defendant’s argued a motion regard, he had In that hearing, had “told the discovery-motion Sheehan At that trial. discovery had turned relevant been times that all judge several trial, probably Later, preparing for the Cumber while over.” came across S-l Sheehan March and June between at the remand file. defense counsel correspondence When he had also hearing sought question Sheehan about whether file, the correspondence letters the McKinnon discovered questions were outside objected, arguing that such State argued that the remand. Defense counsel scope of the limited would the McKinnon letters nondisclosure of possible willful mind. state of reflect on Sheehan’s issue of willful- violation went to the this additional blatant discovery Clearly, the Prosecutor’s office. clear of conduct by ness and showed a pattern objection questions about court sustained the The trial letters, inappropriate to emphasizing that it would be McKinnon into the inquiry to include an scope of the remand expand the doc- of other surrounding the nondisclosure circumstances agree. We uments. letters, of the McKinnon also note that the nondisclosure

We file, is consistent correspondence in the which had been filed surrounding non- circumstances version of the with the State’s file disclosure, i.e., correspondence in the placed that documents discovery produced in the course of because had not been investigative file and on the prosecutor’s staff had focused correspondence ignored responding discovery file in We conclude that the of demands. revelation the McKinnon compelling not of documents was evidence willful nondisclosure discovery presumption justify of material sufficient to of a Thus, pattern of misconduct the Prosecutor’s Office. we ruling precluding questions pertaining find that the trial court's a proper to McKinnon letters was exercise of the court’s scope discretion consistent with the limited of remand hearing. opinion question We address elsewhere this of the nondisclosure of the McKinnon letters. See at 205- infra A .2d 195-196.

3. Rulings on “Discovery” Examination State Witness- of

es argues Defendant that on six different occasions the court improperly prohibited exploring defense counsel from the state of of mind State who had responsible witnesses been handling disseminating discovery. We find that of these challenges, completely six three are without merit. We offer following regarding observations remaining three alle- gations of error.

Defendant contends that the improperly court limited Captain cross-examination of Churchill. Defense counsel asked Churchill promise whether he was nonprosecu aware that tion would weaken the value of testimony Kraushaar’s to the State because it would impeachment material for the “furnish[ ] defense will attorney cross-examining who be her down the objected road.” The State and the objec court sustained the tion: asking give is him to [The question] his as to whether this would opinion weaken her value a as witness at the trial. That’s really beyond scope might might his on experience, the entire trial expertise, depend evidence, might things. her

depend it upon lots It’s testimony, depend not a It question appropriate him. is put beyond his direct scope examination also. the trial court’s appropriate it an exercise of We believe was on questioning limit of Churchill to matters which discretion to impressions his were relevant. of next instance concerns cross-examination Ser

The sought to establish that geant Mahoney. Defense counsel Mahoney investigation the the initial that a knew at time of might credibility her prosecute Kraushaar affect promise not to following posed trial. He the when she later testified at question: recognized at that there would

You the time based your experience certainly good being might that an furnished with this document be a chance attorney might as it her Sarann Kraushaar affect when credibility want cross-examine she later testified at trial? objection the be- objected The and the court sustained State it the to “forecast what would be the cause asked witness attorney particular case strategy particular defense a * * rephrased question the and asked: Defense counsel ’ * * through go thought down road At the time did the mind that your might might this, be confronted with a defense attorney Sarann Kraushaar cross-examine her with this? question. Requiring defense counsel The witness answered the unduly not rephrase question appropriate and did mind of ability explore limit the state of counsel’s ruling. the trial court’s witness. We therefore sustain argument pertains to the Defendant’s final this area witness Patrick Sheehan. direct examination defense De categorize fense asked the whether he would counsel witness “Brady as materials.” immunity the Kraushaar documents question required the witness to objected The State because the nature the materials. The give legal conclusion about the being whether he objection no to the witness’s asked State had hearing After ex materials discoverable. believed the were issue, argument tended on the the court ruled: questioning. just The doesn’t an route of Well, me it seem appropriate questioning is whether he —when included these route you say appropriate If if he knew about he knew about documents. documents, documents, include doc- he know about it wouldn’t documents, obviously didn’t uments. saying. I’m not sure what is whether quite you’re he knew question recognized about whether documents, he he did know about them, —if recognized or not whether he were discoverable the time. they rephrased After question defense counsel in terms of immunity whether the witness believed that documents them, were discoverable when he saw the witness answered the question. uphold ruling. We the trial court’s Rulings

4. on cross-examination Prosecutors Turnback of Kelly

and Defendant contends that on three occasions in the hearing course of the improperly remand the court limited exploration defense counsel’s into the state person of mind and bias al of Prosecutor Turnbach and Kelly. trial Prosecutor We find these to contentions be without merit. We note that two the transcript citations por offered defendant refer to tions of the remand hearing objection no was made. which We offer the following on remaining allega observations tion of error.

Defendant prohibit contends that questions it was error to about unwillingness Prosecutor Turnbach’s to talk to defense counsel hearing began. before the remand objected State to that line questioning basis of its irrelevance to purpose limited hearing. the remand The court sustained objection: [I]f witness, a witness declines to talk an proposed be attorney interviewed, I’ve seen it come before and I ruled that and way before, the mere refusal to talk to someone about case is not evidence of bias. agree Because we with the trial court’s assessment of the defense counsel’s line of questioning, we find that it was not prohibit error to defense exploring counsel from the witness’s wanting reasons for not to talk to him outside of court. 5. Rulings pertaining inquiry practice into the and

procedure County Ocean Prosecutor’s Office. argues Defendant that on four additional occasions counsel improperly barred from inquiring general into the course procedures in effect in the discovery regarding of conduct defendant’s at the time of County Prosecutor’s office Ocean meritless, wholly find contentions be trial. We rulings of the trial court. sustain the Finding of D. Nonwillfulness findings court’s argues that the trial

Defendant In hearing clearly erroneous. were remand conclusions questions the court’s assessments particular, defendant that the credibility witnesses. Defendant claims of the State’s hearing Assistant at the was former only witness credible defendant, ex According to the State’s Prosecutor Sheehan. was “ludicrous” because planation for the nondisclosure “[t]he testimony was never strength of Kraushaar’s assertion that is meetings this notorious case daily about discussed at * * Thus, the record defendant maintains ridiculous Office had County Prosecutor’s that the Ocean demonstrates correspondence immunity willfully the Kraushaar withheld the from defense. Investigator Murphy and testimony of examine the

We first Turnbach, of whom County Prosecutor both former Ocean immunity correspon- of the Kraushaar knew of the existence testimony of that trial. Our review dence before defendant’s consistently prosecutor’s maintained office reveals that correspondence in the immunity letters placement of the file, inadvertent. file, investigation in had been instead to interview Sarann Investigator Mahoney, who was sent 27th, not September knew that she was at Kraushaar County Prosecutor’s Office primary target Ocean time interview, he investigation. he arrived to conduct the When attorney, to see by Kraushaar’s who demanded confronted was assurance that memorializing Prosecutor Turnbach’s a letter prosecuted. Mahoney had no such his client would not be one, prior attorney prepared relying on the letter. Kraushaar’s sign Mahoney declined to with Turnbach. conversation got permission from letter until he Turnbach. He called Turn- the letter to him telephone. bach and read over the Turnbach sign letter, Mahoney assuring then instructed to him that Kraushaar, problem. no interviewing there would be After an Mahoney prepared summarizing internal memorandum interview, omitting any prepared by mention of the letter attorney. independent Kraushaar’s Our Mahoney’s review of testimony Mahoney demonstrates that relied on Turnbach's understanding legal significance of the letter. That supports Mahoney’s testimony gave reliance that he the letter possible thought its effect no further after he had delivered Accordingly, it to Turnbach. we find no reason to disturb findings concerning trial court’s of fact Mahoney’s testimony. We also believe that Turnbach testified a credible manner filing about the of S-l and S-2. Turnbach knew that S-l and discoverable, S-2 placed were so he the letters the Marshall file and assumed that disclosing those connected with discover- able materials would file accordingly: the documents right. All Q. Sir, understood, least as have told you us, earlier that you agreements, something these these

certainly two different documents would be go that Mr. if he Marshall, were ever to would trial, be entitled to receive; correct? A. Yes. What did Q. do, make sure that you sir, information would be

available if defense at the trial of either Marshall or of his necessary any alleged other co-conspirators? A. Sent them to the file. What Q. did use? procedures you A. Told it see to it that my secretary placed the Marshall file. no There is in the indication record that intentionally Turnbach directed misfiled, that the documents be or that he was later aware that Indeed, these letters had not been disclosed. Turn- acknowledged bach that the letters should have been furnished in the discovery, course of and described his reaction when he found out that it had not been sent out:

When all of this started at the Law Journal and the local and when I papers reading saying, agree- was it and Kevin said that there was never Kelly any nothing anything ment or or to do Kraushaar, with it that’s when struck me and did this wasn’t he know about this how happen, why doesn’t God, that, my this in discovery. refer- Nevertheless, any that denied the absence Turnbach concern- Mahoney’s internal memorandum letter in ence to the an omission that ing Kraushaar constituted his interview with gone something had put notice that should have Turnbach on wrong: again having admit to it, it and heard me read would looked at Sir, you Q. agreements, and S-2, omission of the two written S-l me that from the apart arrangements that were made between account of the this is a detailed fairly Saraan Kraushaar? to set this interview of [sic] and Altman's office up

you In involvement in this. other is a account of Mahoney’s A. This detailed what he did. what he aware and words, was agree- signed an fact that he immunity he was aware of the Certainly Q. agreement at Altman’s office after to be an ment or what seems immunity though; talking not in isn’t that true? there, That’s you telephone. right. that’s Yes, A. these didn’t that, desk, you when saw when crossed your And Q. you something missing is here? wait a there minute, realize, reading saying and I never remembered this A. No. can I say, honestly missing something here. there is agree realized, me if had certainly proper Would with that you you Q. together, documents make have these Mahoney put would been say step agree given here, is so a fair is would you sure this accurate picture report with that? Knowing have, should let’s I I would tell him you A. what know now, surely get together make it doesn’t lost. it all sure put Moreover, testimony denying in his Turnbach steadfast up in course of subject had ever come that the of the letters responsible for the strategy with those discussions trial prosecution: day-to-day management of the asking Didn’t have to discuss you I’m what talked to about. Kelly Q. you as a under those circumstances —for with matter course naturally Kelly about or we have the business him, with him without well, example, have discussed; debts. That would been insurance and his Marshall’s debts, right? A. Yes, probably. McKinnon, we You would have with McKinnon without discussed, Q. his killed, is left alive and wife was have the circumstances Marshall slash to the tire another circumstance? Bight. A. not been obviously And would have context, naturally Q. you girlfriend discussing girlfriend, we the fact that there is have Kelly talking getting who is was to that he about of his prepared testify wife, rid asking talking who could do it. He was about how it would solve somebody talking his financial was He about how the problems. insurance would help and he had these debts and so on. She’s to he was nervous or prepared say shaken when the detectives came to house on 21st. We all have September the ease. Wasn’t that with discussed Kelly? IA. don’t to be honest it, with recolIect[] you. agree subject me Would with it is the natural Q. you for discussion in

that context when have to decide what to McKinnon for his you pay testimony, agreement what to make with McKinnon for his testimony? I A. had decide, yes. And in that is Q. context, there reasonable could have any way you discussed with Kevin Saraan Kraushaar’s and the Kelly value [sic] testimony discussing arrangements

it without the fact that she had which included written grant documents which seemed to her a she will not be promise prosecuted, be that she will immunized? A. There was never such discussion.

Murphy he agent” testified that was the “case in defendant’s According trial. regular practice of the Prosecutor’s Office, secretary he or his three-part established file for each case, facts, correspondence, with sections for pleadings. In defendant’s case the “facts” section of the file empty- reports. because there were so many Murphy’s regular prac- tice would have copy reports been and other discoverable they materials as crossed his desk and set them aside in a separate designated Thereafter, file “discovery.” he either reports filed file, himself in the “facts” section of the or case passed on reports any such correspondence be filed Murphy secretaries. testified that he had no specific recollec- tion of the immunity Kraushaar letters. He testified that he had been Louisiana Captain during Churchill period immunity written, of time when the letters had been and that he finding had no recollection of those letters on his desk when he returned. He indicated that secretaries would have filed S-l Moreover, and S-2 in his absence. Murphy’s testimony reveals that he did not discussing recall Sarann credibility Kraushaar’s as a any witness with investigator prosecutor involved in the during case before or trial. He testified that he did not attend days testified, trial that Kraushaar had but recalled He testified further of the trial. her in the course having seen Turnbach daily contact with Prosecutor not maintain that he did was no Finally, Murphy stated that there trial. during the correspondence file determine him to examine the reason for placed have the investi- any should been documents whether gation file. immunity he saw the document. that never

Kelly testified trial, before the interview questioned he Kraushaar Although trial, not for to discuss the prepare Kraushaar was intended addition, Kelly’s preparation In trial did immunity. grant of correspondence the file. We are satis- not include review finding the court’s that amply supports trial fied that the record correspondence existed Kelly that the Kraushaar did not know other grant immunity he did not discuss that County Prosecutor’s Office. of the Ocean members Sheehan, assisted Prosecutor who Finally, former Assistant trial, pretrial-discovery Kelly that he had handled a at testified having He no of ever motion had recollection State. correspon- S-2; however, he noticed that S-l was seen recognized first it. not when he dence file but could recall when see S-l and S-2? Now, did Q. you A. I saw in the I can tell very recently newspaper. S-2 you that time saw it? you Is first Q. ago. A. it to me several weeks No. Lieutenant Churchill showed it? first time saw you Was Q.

A. That was the first time. the last few last weeks, couple never saw until within Q. S-2 you months? A. Correct. How about S-l? Q. I I saw A. I saw conversation with last week. believe you S-l after my for the Cumber case. However,

this after the Marshall trial in preparation I I seen it earlier than that. I cannot be a hundred certain. have may percent it to the trial or to the motion to suppress, have seen Marshall prior may prior argued 9th of 1985. which I believe was September just to me what think saw And indicated Q. you basically you you you correct? time, at a [S-l] prior just I A. I I saw it time. know know don’t when. prior exactly Your is that cannot whether it’s before the Marshall Q. you say testimony trial if I trial, or after Marshall but before the Cumber certainly trial, understand you correctly? A. correct. That’s what did do that, when saw with it?

Q. Now, you you anything A. 1 read it and I didn’t do further with it. Can to us sir? Q. you explain why, thought A. I cannot what at the time process was because explain you my I I don’t recall. believe it was before the I Cumber case because independently

did not intend to call as a I and, therefore, Saraan Kraushaar witness [sic] significance didn’t that much attach it. The Court concluded “that saw it at some time after [Sheehan] trial fairly Marshall had been concluded. It is inferrable from the that he not thoroughly evidence did review [sic] correspondence preparation discovery file in for the motion.” There is clear no indication the record that Sheehan saw result, documents completed. before the trial had been As a findings defer to the concerning we court’s of fact Sheehan. view, testimony In our Murphy, Kelly, the of and Sheehan theme, presented diligence demonstrating a common in the investigation of the murder and lack of willful conduct regard to the of nondisclosure the Kraushaar find letters. We testimony credible their effect that the nondisclosure was by filing caused the inadvertent rarely-used of the letters in the correspondence investigation Therefore, section file. we explanation find the State’s of the nondisclosure to be credible. Ordinarily, we fact-finding accord deference of a trial judge opportunity because “his to hear and see witnesses case, have the ‘feel’ of the reviewing which a court cannot enjoy.” Johnson, 146, State v. 42 N.J. 2d 161, 199 A. (1964). record, 809 carefully reviewing After we find no reason to disturb the court’s assessments of the credibility the State’s witnesses. We are finding satisfied that the court’s “could reasonably have been reached on sufficient credible present 162, evidence in the record.” Id. at 199 A.2d 809. conclude, Accordingly, did, we as the trial court that the nondis-

199 not correspondence was immunity Kraushaar of the closure willful. Materiality of Nondisclosure

E. the nondisclosure next consider whether

We principle established correspondence violated Kraushaar 1194, 83, 10 83 supra, 373 S.Ct. U.S. Brady Maryland, v. Brady held Supreme The Court 215. L.Ed.2d to an accused of evidence favorable upon prosecution [t]he suppression guilt or to is material either to where the evidence due violates process request good faith of the or bad prosecution. irrespective punishment, at at 10 L.Ed.2d 1196, 218.] at 83 S.Ct. 87, [Id. is discovered where information rule is invoked Brady The prosecution but known to the had been after trial “which Carter, 91 at supra, N.J. defense.” State v. unknown to the 427 Agurs, v. U.S. 111, (quoting States 449 1280 United A.2d 342, (1976)). The 2392, 2397, 349 103, 49 L.Ed.2d 97, 96 S.Ct. credibility of a affecting the evidence of material nondisclosure Brady. Giglio v. United falls within government witness (1972); 763, 104 150, 31 L.Ed.2d States, 92 S.Ct. 405 U.S. 1173, 1217 264, Illinois, 3 L.Ed.2d 360 79 S.Ct. Napue v. U.S. (1976); 420, Carter, .2d627 State (1959); 354 A v. N.J. State (1976). concedes 231, State 353 A .2d97 Spano, 69 N.J. v. disclosed correspondence was not Kraushaar-immunity that the Thus, remaining issue is whether only to the defense. punish guilt or were “material those letters [defendant’s] at supra, 373 U.S. S.Ct. Brady, ment.” 218. L.Ed.2d at to the is “material” whether evidence

To determine nondis which the defense, circumstances under examine the we specific Where, here, made a defendant has as closure arose. information, mate the standard of request for the nondisclosed might affected have suppressed “the evidence riality is whether 104, 96 427 at Agurs, supra, U.S. of the trial.” the outcome Carter, supra, 91 2398, In at 350. State v. at 49 L.Ed.2d S.Ct. 1280, a conviction would 86, emphasized that 449 .2d we N.J. A 200 speculation the

not based on sheer about effect of be reversed the nondisclosed information: ‘might of the trial’ The have affected the outcome test is not translatable into might information have

the mere that the undisclosed the helped possibility call the for automatic There must be Otherwise, defense. test would reversal. would have result. a real the evidence affected the possibility (footnote omitted).] 449 113, at A.2d 1280 [Id. essence, “might requires In the have affected the outcome” test 114, application analysis. of a error at harmless Id. 449 2:10-2; Macon, 325, 340, 1280; see v. A.2d R. State 57 273 N.J. (1971). accept suggestion A.2d 1 We decline State’s materiality adopt we a standard of enunciated United States 667, 3375, (1985). Bagley, v. 473 105 87 481 U.S. S.Ct. L.Ed.2d Bagley “only The standard considers evidence to material if be that, probability there is a reasonable had evidence been defense, disclosed to the the result of proceeding would probability’ probability have been different. A ‘reasonable is a 682, sufficient to undermine confidence the outcome.” Id. at 3383, 105 at 87 at 494. S.Ct. L.Ed.2d significance of a nondisclosure the context of the entire record determines whether omission 112, supra, harmless error. See Agurs, 427 96 at U.S. S.Ct. 2401, (footnote omitted). 49 L.Ed. 2d at 355 differently, Stated analysis depends primarily importance of the wit testimony strength ness’s against case State’s 1299, defendant as a whole. See Carter v. 826 F. 2d Rafferty, (3rd Cir.1987); United ex rel. v. Gengler, States Marzano (3rd Cir.1978). Where, here, 574 F. 2d the Brady as allegedly violation credibility affects testimony, trial its significance is diminished if provided the witness had essential ly the same statements to authorities before after reaching agreement the undisclosed State. See United States Ramirez, (9th v. Cir.1979)(to 608 F.2d 1261 trial, warrant new agreement prior must be testimony); reached to witness’s cf. Cady, (E.D.Wis.1982), Ruiz v. 548 F.Supp. aff'd, 710 (7th Cir.1983)(finding F.2d 1214 no Brady violations where “no substantial testimony inconsistencies” between before and after agreement prosecutor to recommend noncustodial sen- tence). context, helpful compare In it is the statements 7, 1984, given by September post-immu- Kraushaar on with her 27, 1984, nity September testimony statement of and her trial. 7th, September Investigator Mahoney

On and Detective Pet- County racca interviewed Kraushaar at the Ocean Prosecutor’s interview, in Mahoney’s report Office. As detailed of that investigators Kraushaar told the that she had known defendant approximately years begun fifteen and that she had an relationship intimate with him in June 1983. She stated that suspicious Maria Marshall had become of defendant because telephone place defendant had made calls to Kraushaar’s employment. Kraushaar also recalled a conversation with de- place fendant that had taken before Christmas in which defendant, difficulties, discussing while his financial had told Kraushaar that “the insurance on Maria would take care of his (Maria) I you debt. wish she wasn’t around. Do know of addition, anyone who could take care of it?” In Kraushaar was mortgage aware that defendant had taken out a second on his $100,000. Further, plan home for she revealed their to live together spouses Day and leave their after Labor 1984. Finally, Kraushaar stated that defendant had called her at work murder, day begun cry, after the had and had told her that “it’s I it terrible. didn’t want to be like this.” given by

The statement September Kraushaar on 27th re- transpired counted the September events that had since 7th. Kraushaar stated that defendant had visited her at her home on September 23rd. telephone One of defendant’s sons had left a message apartment. for defendant at Kraushaar’s The mes- sage telephone stated that defendant had received a call from hearing message, Louisiana. On Kraushaar described de- “visibly “pale.” fendant as shaken” and She asked about the nature of the call. Defendant told her that it related to a wager placed game. he had According basketball

Kraushaar, night “unusual, behavior had defendant’s been very nervous.” observations, again

In addition to Kraushaar described those had had with he had the conversation she defendant which suspected that an having revealed his wife he had been affair. time, investigators told This Kraushaar that defendant had thought way getting her “I swear if I told there was rid of somebody I would. you her Do know of who would do it?” testimony Kraushaar’s trial similar to contained recollections prior but more detailed than her statements. She testified at length length relationship about the nature and her defendant, including custody the issue of over each other’s children, spouses. if they were to leave their Kraushaar also quit job revealed that she had had she held at the time of murder procure and that she had found difficult it similar employment practically every elsewhere. In way, her trial testimony September her Sep- mirrored statements of 7th and testimony tember 27th. The her pre-Christmas about example consistency: conversation with defendant is an of that I Now, would like to call Q. attention sometime before Christmas of your 1983. Would tell me whether or not had a with Mr. you you discussion Marshall about that the debts he had? A. We had discussions about that debts he had. many Can tell us whether or not there Q. you was discussion about his debts any relation insurance on his life? wife’s proceeds ^[********] And when was that Q. discussion, that discussion? Do particular you

recall? knowledge A. To the best of it in November, was sometime my December, that time January, period. '83 into ’84? Q. Yes. A. saying regard? Would tell Q. what recall him you us, please, in that you A. there I Well, was one conversation recall that which there was a

discussion about the extent and the insurance statement to the effect that insurance was extensive and would take care if it were ever of, paid, take would care of the I debts. don’t remember whether it was in the same conversation or one that [a] he had reference to the if subsequent fact she had if she been, were not the insurance around, would take money definitely care of the debts. During might during that same of time or it Q. have been period same regarding can conversation, tell us whether or not he you made statements any the fact of whether his wife was around or not his in that position respect?

[********] A. There was a conversation in which he was at his home very upset situation, frustrated. very

******** being Did he tell what the Q. of his you cause was? upset things going A. Yes. He described various that were on at home. Like what? Q. pulling A. to use range. Well, his she was in the expression, She was hovering over him. She was aware that there was some between problem and she them, was that there was a suspicious between us. She relationship bombarding was him with these to the that he suspicions point very upset something with her and in the conversation with me said “I swear if like, there get were a that I could either do rid way I would.” away her, What else did Q. he in that same conversation? say A. thing. He asked if I knew that would do such a anyone What did ma’am? Q. you say, A. I didn’t think that he was and I serious, told him that there was one only other dealings who I even person knew who had kind of with the and any law, doing he thing wouldn’t even consider such a and that the idea was absurd and nothing out of the and I could question have to do with him if he even pursuing considered it. ******** After Maria’s death did Q. ever him on you notice that had told put you all about his

police conversation with back sometime before you Christmas of '83 where he said, words to the effect —I shouldn’t quote, end say, quote get “I wish there was some I quote; could rid of her. Do way know you anybody?” Did ever tell him told the you that? you police A. Yes. What did he Q. say? A. He was disturbed that and wanted to by know I could have told why them that. was it I Why And necessary? that, the circumstances explained were that I had been home the picked up after Maria was my way day killed brought questioning. nothing and in for Since I had to hide and didn’t think he anything had everything I told hide, I simply knew. illustrates, As that testimony Kraushaar’s statements at trial provided significant, no incriminating evidence that she had not

204 already given agreement prosecutor’s prose- before the not to statements, cute. In all three Kraushaar discussed defendant’s problems, defendant, financial and relationship marital her during relationship and that on one occasion their defendant spoke “getting about rid” of his wife. fact that her testimony non-prosecution agreement after the largely September significant consistent with her statement of 7th is a materiality analysis. factor our strength Another consideration is the of the State’s case against defendant. This is not a case in which Kraushaar’s provided testimony primary link Camp to the crime. See Reed, (4th Cir.1979) bell v. 594 4 (reversing F. 2d conviction pre-agreement where State failed to disclose of co-defendant only fact, burglary). who was witness to In none of her testimony directly implicated defendant in conspir a homicide acy. testify hiring Kraushaar did not about defendant’s McKinnon, meetings City, their in Atlantic payments and the made defendant to McKinnon. It is evident that the most damaging against evidence defendant came from McKinnon’s testimony brother-in-law, tape defendant’s to his in which paying he admitted money night to McKinnon the of the mur Although der. testify she did that defendant had received phone Louisiana, call from testimony Kraushaar’s in that re gard other, simply detailed, corroborated more testimony about Moreover, the various toll records. defense counsel cross-ex amined vigorously Kraushaar thoroughly. See United Roberts, (8th Cir.), States v. denied, A.2d 906 cert. 488 U.S. (1988) S.Ct. L.Ed.2d 340 (unavailability of report containing exculpatory false grounds statement not reversal thorough cross-examination, because of and availabili ty report would not materially have added to effectiveness of cross-examination).

We are overwhelming satisfied that the evidence of defen- guilt, coupled dant’s consistency with the of Kraushaar’s testi- mony before and after the non-prosecution agreement, State’s compels the conclusion that the non-prose- nondisclosure of the agreement guilt cution was not “material” to defendant’s punishment. Even if the defense have could weakened Kraush by confronting credibility agreement, aar’s her the redirect testimony of Kraushaar would have demonstrated that her police statements to the were the same before and after the Hence, agreement. we doubt that the nondisclosure of the agreement could have possibility created “real that the evi Carter, dence would have affected the results.” supra, 91 N.J .2d 1280. A We find defendant’s claims regard purely speculative. to be Accordingly, we conclude that the nondisclosure was harmless and that defendant was not ground. denied a fair trial F. McKinnon Letters

Although they not scope are within the remand hearing, we arguments nevertheless address raised defen during dant hearing relating other to the undisclosed doc earlier, 181-182, uments. As indicated supra at 586 A .2d at 181-182, required produce correspon court State to dence file in placed. which Kraushaar letters had been Defense counsel’s review of that file revealed that addition two al letters had not been disclosed to the defense. Those letters concerned expenses incurred on Billy behalf of State’s witness Wayne letters, McKinnon. In the County the Ocean Chief of requested Detectives reimbursement from Jersey the New State Police for monies to house and otherwise McKin assist family during non’s defendant’s trial.

According counsel, letters, to defense produced, if could impeach have been used to credibility McKinnon's and therefore conceivably could have affected the outcome of the trial. De- argues fendant that produced failure have the McKinnon letters should result in a reversal of his conviction.

The State acknowledges that question, the letters in which been had correspondence inserted along file with the letters, Kraushaar provided were never to defense counsel. 206 “vigorous argues attack on

The State that because trial, credibility” “exhaustively explored McKinnon’s which plea arrangement parameters the full of his with the [sic] State,” the nondisclosure of the reimbursement letters “made absolutely jury’s no in the assessment of McKinnon’s difference Thus, argues credibility.” the State that the failure to have produced beyond the letters harmless doubt. was reasonable Supreme of Florida confronted a similar situation Court State, (1986). jury in 15 After a Groover v. So.2d had murder, light came to convicted defendant evidence indicat ing prosecutor paid had sums of cash to that several State expenses. witnesses for food and travel The defendant claimed “payments that those should have been made known to the expose defense in order to witnesses’ interests in testi [those] fying against rejected Id. at 17. The court [the defendant].” alleged Brady required defendant’s claim that the violation conviction, observing reversal of the that trial “[defendant’s] fully counsel cross-examined her in about interest [the witness] testifying, informing received [the witness] in charges first-degree accessory reduction from murder to exchange after the testimony against fact for her [the Ibid. The court concluded that the witness’s defendant].” testifying exposed “interest in payment question and the jury’s here could have made no difference assessment of her credibility.” Ibid.

“Nondisclosure of evidence favorable to the accused violates right process only the constitutional of due ‘where the evidence ” guilt punishment.’ Carter, is material to supra, State v. 112, 91 N.J. at 449 A.2d 1280. In order for evidence to be material, possibility must be a real that the evidence “[t]here would have affected the result.” Id. at 449 A.2d 1280. simply, Stated possibility must be a real “[t]here defendant was denied a fair trial.” Id. at 1280. A.2d merely “Evidence that is cumulative does not create a reason- possibility able the verdict would have been affected.” Ibid. here, presented

On the facts possibility there is no reasonable impeachment that the further by of McKinnon reference to the support financial family his received from the State would have affected the verdict. McKinnon’s fundamental in interest testi fying was to charges obtain a reduction of against him from capital conspiracy, thereby murder to reducing his maximum possible punishment from a death sentence to five-year prison parole disqualifier. term with no clearly Those facts were conveyed to the during defense counsel’s cross-examina tion of Any possible McKinnon. incremental effect on McKin credibility non’s from the additional revelation that financial accommodations support were made to family his would have merely been cumulative. We note parenthetically that in the argument course of oral relating pretrial motion, to a discovery counsel, seeking defense disclosure of paid benefits to McKin family, non’s indicated that he had assumed payments such would be made plea bargain State. McKinnon’s included undertaking by an prosecutor to recommend McKinnon’s acceptance in the Federal Witness program, Protection see 18 -28, U.S. C.A. 3521 to specifically which pay authorizes the §§ ment of living expenses basic for an family immediate member protected of a witness. 3521(b)(1)(D). 18 U.S.C.A. We con § clude that there was possibility no reasonable that a different verdict would have arisen had the letters been disclosed. We reject therefore defendant’s claim that the State’s failure to have disclosed the McKinnon requires letters reversal of defen Carter, dant’s conviction. supra, 114-15, See 91 N.J. at A .2d 1280.

Conclusion To ensure completeness record, we note that this Court granted defendant’s motion that it judicial por- take notice of tions of briefs filed other Jersey capital appeals. New arguments advanced in each of the briefs have been addressed in the course of opinion. the Court’s conspiracy affirm defendant’s for murder and

We convictions to commit murder. We affirm his sentence of death. also

O’HERN, J., concurring part dissenting part. reservations, entirely certain I concur With but almost unsettling profoundly Justice Handler’s dissent insofar as it applies in this sentence of death case. continue, however, prosecutors

I that conscientious believe capable fairly try capital courts and can counsel cases. (1984)(O'Hern, J., McCrary, 97 478 2d 339 State v. N.J. A. Hence, Handler, dissenting). my unlike I not Justice do base unconstitutionality decision on the of the Act rather on the but jurisdiction capital necessary appellate exercise of our cases. Supreme When the United States Court the constitu restored tionality imposed of the death it penalty, a concomitant obli gation provide safeguard meaning on states to “the further of appellate ful every Gregg review” of death sentence. v. Geor 153, 195, 2909, 2935, 859, gia, 428 U.S. 96 49 L.Ed.2d 886 S.Ct. (1976). twenty-five capital or so cases that we have reviewed and comprise capital

decided thus far of a class cases tried before interpretative 13, our decisions in State v. 106 Biegenwald, N.J. (1987); Ramseur, 123, 524 130 A.2d 524 State v. 106 A.2d N.J. (1987); 123, (1988) 188 Bey, State v. 112 N.J. 548 (Bey A.2d 887 II); Gerald, 40, (1988). v. State 113 N.J. 549 A.2d 792 We capital have had reverse often cases for reasons with which Legislature See, itself has concurred. e.g., Biegen v. State wald, 13, supra, (burden 106 N.J. 524 A. 2d 130 on is State to prove beyond a aggravating reasonable doubt that factors outweigh mitigating factors may before sentence of death be imposed); 1985, 178, (to effect); and see L. 2 c. the same § 45, 112 Bey, (1988) I) (sentence State v. N.J. 548 A. 2d 846 (Bey may death not imposed juvenile offender); be and see L. 1985, 478, (to effect). c. 1 the same §

209 Nonetheless, public perceives those decisions and the application principles of other capital law to cases as under- mining the penalty State’s death statute. It calls for an execu- tion to demonstrate the efficacy. when, Act’s But as Justice it, puts Handler die, bell tolls for one people who must Jersey of the State of New would undoubtedly expect that the condemned has received a fair trial history consistent with our and tradition.

By account, the Court’s own happen that did not here. This case contains admitted 169-207, constitutional error. Ante at 174-196; 586 A.2d at 83, see Brady Maryland, v. 373 83 U.S. 1194, (1963). S.Ct. 10 L.Ed.2d 215 undisputed It is in this case promise given to a critical State witness and that promise immunity was not disclosed to the By defense. failing to disclose that defense, information to the the State violated the Brady rule of Maryland, supra, 83, v. 373 U.S. 83 1194, S.Ct. 10 L.Ed.2d 215. may Evidence that be used to impeach a witness’ credibility is favorable to an accused under Brady. Giglio States, v. United 405 U.S. S. Ct. (1972). L.Ed. 2d 104 promise A immunity may used to be impeach the credibility 154-55, of a witness. Id. at S. Ct. 766, 31 L.Ed. 2d at 109. It is of no moment whether the promise of immunity was enforceable or not. Even if the unintentional, non-disclosure were we must still if decide here promise of immunity is, whether, was material —that if disclosed, it could have had an effect on the outcome of the trial.

In United Bagley, 667, 3375, States v. 473 105 U.S. S.Ct. 87 (1985), L.Ed.2d 481 the Court purposes held that for the of a Brady inquiry, prosecution if the failed to disclose either excul- patory impeachment or evidence, material, and if the evidence is reversal is warranted. A majority agreed of the Court evidence is “only material if there is a reasonable probability that, had the evidence been defense, disclosed to the the result of the proceeding would have 682, been different.” Id. at 105 3383, S.Ct. at 87 L.Ed.2d at 494. Justices Blackmun and 210 equate “probability that standard with a sufficient to

O’Connor confidence the outcome.” Ibid. Our has undermine Court standard, slightly possibility” the “real adopted a different 113, Carter, 86, v. 449 A .2d 1280 standard State N.J. (1982), 200, at 586 A .2d at 192. ante majority approached in this case has the non-disclosure overwhelming guilt, by pointing issue to the con evidence cluding capable producing contrary error not that the was Brady merely result. But the rule of does not extend to the guilt process requires question of or innocence. Due disclosure defendant, by prosecution, on motion of the evidence that guilt would be favorable to the accused and that is material to punishment. Brady Maryland, supra, v. at U.S. 10 L.Ed. 2d at 218. S.Ct. agree guilt phase

I can that confidence in the of this trial is sufficiently prom- not undermined the non-disclosure of the immunity ise of to Sarann Kraushaar warrant reversal of the However, I say conviction. cannot understand how one can possibility promise there is no real that had the been defense, proceeding disclosed to the the result of the would have been sentencing phase. different Kraushaar was a against critical witness Robert Marshall. Defense counsel Billy Wayne testimony suspect notes that McKinnon’s was so jury entirely acquitted Larry that the Thompson co-defendant Kraushaar, testimony. face of McKinnon’s Sarann on the hand, presented other was to the as one “inher- who was ently virtually unimpeachable.” believable and Defense coun- points sel also bring out that had the defense been able out being swept extent of Kraushaar’s fear of into this murder prosecution, attorney the conditions that she her attached cooperation, to her “immunity” and the fact that her from prosecution premised cooperation, on her continued jury would have been in testifying able consider her motives as she testimony accordingly. did and evaluate her It is not enough say that her statement on the second occasion (September 27) paralleled her statement on the first occasion 27, 7). (September September On she furnished the State with concerning subsequent her otherwise-unavailable evidence all of Marshall, including contacts with the statement she which ” visibly ‘pale’ said that Marshall shaken and turned “became hearing message after he had received a from Louisiana and the statement in which she detailed Marshall’s account of having engaged person Louisiana, Shreveport, from in a wager playoff games. on the NBA

If aware of prosecutors, Kraushaar’s deal with the the de- might explored fense have at trial the State’s failure to investi- gate original her further. In police, her statement to the her, Kraushaar stated that defendant once said to “I she wish around,” her, you anyone wasn’t and asked know [Maria] “[d]o supplied who could take care of it?” then him She with a name: Joey Harrison. Defendant testified that it was Kraushaar who said, great had “wouldn’t it if Stanley be Maria and [Kraush- picture?” aar’s were out Kraushaar also husband] inquired investigators if it were true that Mrs. Marshall’s pocketbook was found near the exit that she herself used when she Regional traveled to Pinelands School. very

It is speculate experienced difficult to now on what trial counsel could or would do such with information. We do know that other areas of cross-examination of this witness that sought pursue Carter, defense were limited. In State v. 139, 1280, supra, 91 explained N.J. 449 A.2d Justice Clifford dissent, in a adopted by later Third Circuit Carter v. Rafferty, (1987), denied, 826 2dF. 1299 cert. 484 U.S. (1988), experienced

S.Ct. 98 L.Ed.2d 661 what defense counsel can do credibility evidence. only case,

Were this the constitutional error in this I too might agree be able to possibility that there is not a real proceeding the result of the would have been different. But the Court’s own account there are ten other errors this case. Among are, important course, the most infringe- them ment on right defendant’s constitutional to counsel. As the notes, 124, 148,

majority prosecutor’s ante at 586 A. 2d at “a suggesting statement that retention of is counsel inconsistent impermissibly infringes with innocence on defendant’s consti a McDonald, right tutional to counsel.” See United States v. 559, (5th Cir.1980)(“It impermissible 620 F. 2d 564 is attempt to prove guilt by pointing ominously to a defendant’s to the fact sought counsel.”). he has the may that assistance of The State suggest not right a defendant’s exercise of the to counsel probative guilt. case, of In present prosecutor’s is the questions designed Marshall, plainly suggest were to if innocent, would not have retained counsel. The comment was questions error. The did co-defendant’s counsel not undo the by prosecutor’s harm attempt penalize created to Marshall’s right Lawyers exercise of his to counsel. in criminal are cases “necessities, luxuries,” not Wainwright, Gideon v. 372 U.S. 335, 344, 792, 796, 799, (1963), 83 S.Ct. 9 L.Ed.2d 805 and “even the most innocent individuals do well to retain counsel.” Bru Rushen, 1193, (9th Cir.1983), v. 721 no F.2d 1194 cert. denied Bruno, McCarthy sub nom. v. 469 U.S. S. Ct. (1984). Although L.Ed.2d 236 guilt, the forbidden inference is implication is something that there is squalid hiring about lawyer. addition,

In as points out, Justice Handler nothing ex- can cuse, justify, or attempt undo the State’s disparage to Mar- right shall’s exercise of behalf, his to on call witnesses his guaranteed by the sixth amendment In Constitution. summation, prosecutor stated: bring And he has the in his three audacity That’s obscene. boys testify. being And I’m thing. not critical them because I would do the probably same

To his on that witness stand put is and for that boys obscene, there’s a place hell for anything him. He will use he will will do anybody, say he anything, including get his own out from family, under, that’s Robert Marshall. Make Oakley no mistake about it. When did it become “obscene” for a man presumed to be system innocent under our call law to witnesses his own behalf? dry curative given by instructions the trial court hardly dispel

sufficed to image visual place in hell for prosecutor defendant planted in jurors’ minds. Those remarks were neither accidental nor the result of the passion of a heated They planned. trial. were Contemporary prosecution statements press to the set forth in the record demonstrate that. I cannot conclude that those instanc- prosecutorial misconduct, es of weighed cumulatively with the other instances of trial error and with the constitutional error promise of non-disclosure of the of immunity made to Sarann Kraushaar special expenses paid and the by the State for the support of the family, McKinnon present could not at least a “real possibility” that there would have been a sentence other than death. That “real possibility” magnified is in this case because, as points out, Justice Handler guilt penalty and phases effectively were telescoped into proceeding. one Death- eligibility and death-worthiness became as but one. The taint in one proceeding could not have but tainted the other. majority (harmless believes that those errors in its view and in guilt mine in phase) cannot have influenced the penalty phase. processes But the of guilt decision on and punishment entirely are different. The guilt verdict of is the product end step-by-step construction logical of a and essentially chain incontrovertible of evidence inescapably link- ing Marshall to the Nothing Louisiana killers. can be real- istically controverted. money Marshall sent the to Louisiana cover; under a he met McKinnon Jersey; New his car tire feign was slashed to a Parkway; breakdown he had clearly-established motives to kill. The guilt decision on is logical, progressive, overwhelming. deciding But whether a man shall live or die is not the

. product building blocks of evidence. capital “Jurors [in sentencing] finders, are not mere fact but the ultimate deter miners of whether the II, defendant shall Bey live or die.” supra, 162-63, 112 N.J. 548 A .2d today’s 887. Even under structure the jury’s function surely remains what Chief Justice

214 upon judgment as “a moral Weintraub considera described 123, 147, 58 N.J. Conyers, tion of the evidence.” State v. (1971). A .2d 721 structure,

Despite attempt give every it constitutional capital sentencing ineluctably Why is one individualistic. defen a killer wife and dant who has hired to murder his burn her body, Engel, (1985), .2d see 99 N.J. A State v. another, spared penalty, should be death such as Marshall, should sentenced to death remains forever be entrust juries. Obviously, aggravating (the ed to factor our itself gun) bespeak employment punishment of a hired does not know, because, jury of death as we did not Engel sentence the defendant to death. There are undefinable and unidentifia quality in jury’s judgment ble senses of moral such acts. The quality of the moral of the acts in case undeniably this was tainted trial principle constitutional error. I know no logic by Court is which the able to conclude that there is no possibility jury fairly in a case that a tried could not have returned a life sentence. place

Whether there be “a will hell” this defendant judge greater any remains for a than us. What we must imposed decide is whether the sentence of death accord- ance imposed A sentence of law. death is not in accord- ance with by repeated law when has influenced been instances of governmental constitutional error and misconduct.

HANDLER, J., dissenting.

Finally, the tolls. This bell Court for first time affirms both the murder conviction and death sentence of a defendant prosecuted capital murder. The Court’s decision and judg- ment confirm only serve the intractable constitutional infirm- ities of capital-murder jurisprudence, our its unfathomable inco- unmanageable herence and contradictions.

Significant shortcomings prosecution, surround this resulting in a death sentence that under our Constitution can be viewed a is arbitrary capricious, death sentence only as and and fundamental fairness de process the due unmarked causes, a capital death sentence that constitutes in manded punishment. previously The con unusual Court has cruel and are many resolved of the constitutional issues that and sidered Ramseur, implicated in State v. 106 N.J. directly this case. See (1987); Biegenwald, .2d188 v. 106 N.J. 524 A State (1987). evolving capital-murder Given the nature of A .2d 130 subject to recon imperatively such issues remain jurisprudence, ripe apparent It that no and for redetermination. is sideration definitively principle legal should be considered as guiding controlling penalty. it comes to death when settled forcefully sentence draw capital conviction and death This support on of the constitutional attention to weakness The penalty. the Court has rested the death bifurcated- which capital the death- prosecutions, with its use of trial scheme genuine impartiality, fails and fact qualified jury, to secure case, is promote opposite. In this the unfairness may an peculiarly accentuated: it confronts defendant with guilt a fair or a dilemma—the choice between trial insoluble Further, punishment, identical statu- fair trial on not both. but guilt and determinations of tory definitions simultaneous unacceptable capital prose- risk punishment and create the factors, together with the cutions are overinclusive. These inefficacy penalty proceeding, grossly of the which undermines reliability of the that the defendant deserves determination die, exemplify arbitrary capricious imposition and defects, major with other trial- death sentence. Constitutional deficiencies, de- impugn prosecution this and level errors mand reversals the conviction and sentence. augments concerning the

This case formidable doubts justice system. feasibility penalty of the death within criminal being extraordinary The enormous resources and costs now capital-murder prosecutions sap strength poured into our justice. law other areas of enforcement criminal jurisprudence capital punishment begun to distinctive has 216 legal principles

exert an influence on the and doctrines that absorption, govern justice. growing criminal Our if not obses- sion, penalty, generated has an the death institutional compulsion penalty any price. to make death “work” at dissonant, tolling sharply disturbingly

The bell is and given grave arising instances of reversible this error from prosecution, capital- the serious constitutional infirmities of our laws, genuine policy militating murder and considerations against penalty. though the death Even it is the defendant penalty, penal- who suffers the extreme constitutional failures everyone. compromised A guilty ize constitution to convict the gives no to the comfort innocent.

I. engendered The profound imposition most concern by death sentence this is that ease defendant was sentenced by jury to die qualified that was not to render that awesome judgment. Astonishingly, goes virtually by this fact unnoted and, sadly, Court appears the Court untroubled it.

It is capital-murder only well-settled that in duly-qual trials jury may impanelled ified guilt be to determine a defendant’s and, capital-murder if guilty, whether the defendant deserves Indeed, capital-murder prosecution die. in a the jury be must specially qualified in high degree objec order to assure that tivity, fairness, sensitivity, impartiality and essential to deter guilt mine appropriate criminal and sentence. Ross v. Okla homa, 81, 108 (1988); 487 U.S. 101 80 S.Ct. L.Ed.2d State Bey, 151-54, (1988) II); v. 112 N.J. 2dA. (Bey Ramseur, supra, 248-54, 188; State v. 106 N.J. A. 2d State Williams, 39, 61-62, v. (1983) (Williams 93 N.J. 459 A. 2d 641 I). jury’s heavy special responsibilities capital- in a unique. murder case prosecution are In a in which a defendant death, can be sentenced to is a vital “link between contemporary community penal system values link—a without which punishment the determination of hardly could

217 evolving decency reflect ‘the standards of that mark the ” Illinois, progress maturing society.’ Witherspoon of a v. 391 510, 1770, 15, 15, 776, 519 n. 88 S.Ct. 1775 n. 20 L.Ed.2d U.S. (1968) 86, 100, (quoting Trap Dulles, 783 n. 15 356 78 v. U.S. 590, 597, (1958) 630, 2 (plurality opinion)). S.Ct. L.Ed.2d 642 extraordinary pains capital-murder We thus take in cases to impanelling jury special qualifications. insure the of a All potential jurors “thorough searching must submit and in quiry by the trial court each individual’s attitude concern intp 393, ing penalty.” Williams, 413, the death State v. 113 N.J. (1988) (Williams II). person 550 1172 A.2d We insist that no may jury capital concerning serve on a in a case whose views penalty ‘prevent substantially impair the death “would performance juror of his duties as a in accordance with his ” 415, (quoting instructions and his oath.’ Id. at 550 1172 A.2d Texas, 38, 45, 2521, 2526, Adams v. 448 U.S. 100 65 S.Ct. (1980)). L.Ed.2d 589

We have posed by wrestled with the dilemma the use of a death-qualified jury: jury qualified whether such a with the capacity to sentence a fairly, defendant to death can also and objectively guilt. determine the defendant’s criminal v. State Ramseur, 248-54, 188; supra, 106 atN.J. 524 A. 2d see v. State Rose, 454, 476-77, (1988). 112 N.J. 548 2d 1058 The A. Court has resolved that dilemma. jury It has decided that such a can functions, adequately perform rejecting both the notion that death-qualification imperils jury’s ability guilt. to determine Ibid.; Ramseur, supra, 188; 106 N.J. at 524 A. 2d but see Ramseur, 428-35, supra, (Handler, J., atN.J. 524 A.2d 188 (the dissenting) guilt capital issue of defendants should not 335-41, be determined death-qualified jury); id. (O’Hern, J., (death 2d concurring) A. 188 qualification may af jury’s ability guilt). fect to determine According criminal to the Court, a may fairly guilt defendant tried for be both jury proceeding. sentence before the same same premise underlying reasoning Court’s The is that basic jury qualification indispensable securing death itself is put can relied on to decide whether a defendant should be be II, supra, death for his crimes. See Williams 113 N.J. at 413-27, Further, qualification 550 A. 2d 1172. death does not ordinary juror qualification undermine that suffices to jury only guilt. enable a determine Court thus believes effect, qualification, superimposed can be that death qualification. Accordingly, conventional such a —conven qualified death-qualified tionally determine both crim —can guilt punishment. Therefore, capital-murder inal and in a case guilt punishment both the of defendant can—and by jury. should—be tried such a case, however, jury death-qualified. In this was not jury began, Before the selection defense counsel that stated he preferred qualification questions death omit all from the jury-selection process questions because he that believed such conviction-prone jury. led to a obviously Counsel reached this position reluctantly. pro Counsel contended that to exclude spective jurors opposed penalty guilt to the death from' phase right impartial jury. urged violated defendant’s to an He jurors ordinarily through that those excludable cause death qualification qualified guilt phase nevertheless be for the of Further, proposed trial. penalty phase counsel that if a should necessary be jurors replaced by separate death-quali those be jurors, fied also guilt phase, selected before the who would sit during guilt phase. as alternates Defense counsel asserted proposed that way this method was try capital the fairest (See, e.g., Ramseur, 339, case. supra, State v. 106 N.J. at 524 (O’Hern, J., concurring); II, A.2d 188 Bey supra, v. 112 State J., (Handler, N.J. at dissenting)). A.2d 887 The trial court denied the motion. selection,

After one full day of defense counsel reit- qualification erated his view jurors that death violated his right impartial client’s to an jury. To reduce the asserted prejudicial impact, qualification counsel moved to limit death counsel, with the Specifically, defendant’s potential jurors. sought Thompson, co-defendant of counsel for concurrence qualification prospective to the court limit death the trial have had been distributed questionnaire to the jurors’ answers object, The did not questioning.1 State the individual before Accordingly, during request. this approved court trial dire, the trial court conducted additional balance of the voir potential juror’s questionnaire if a qualification only death impair penalty might views on the death revealed It no ability to instructions. asked juror’s follow court’s simple “yes” or “no” an- jurors whose questions further suggestion. no such questionnaire contained swers to extraordinary nothing finds in that untoward Court merely qualification, explaining repre that it handling of death defense counsel. Ante at by decision sented a tactical trial cases, strate Except 131. the most extreme 586 A. 2d at grounds present gic made defense counsel will not decisions Ramseur, supra, 281-82, 106 N.J. appeal. on for reversal proper on the administration 524 A. 2d 188. Our views voir death-penalty proce dire views other process, like our dures, to defense degree of deference are seasoned with Hunt, State v. N.J. Thus, strategic counsel’s decisions. 330, 354, (1989), 2d diluted its commitment 558 A. 1259 the Court questions during death- indispensability open-ended dire, noting qualification voir defense counsel had “de that questioning request further and did opportunity clined the to counsel stated: 1Defense page questions questionnaire, appearing On on the last are three the capital pertaining juror’s punishment. prospective to a views on In the least, past prospective juror even if answered in a fashion at the which being qualified jury, your serve on this Honor would be consistent with My request explored has extent views in this area. is still some their regard panelists, questions that least with to further if the answers to the answers, they qualified by I are such that would be virtue their ask that inquire your any capital punishment views Honor not further into their on only highlight as I feel serves to further the area that I had inasmuch it objected very beginning qualification. to in the that deals with death 220 case, qualifications.” however, In object jurors’

not to the beyond acceptance simple went voir dire examination questions, to written and the Court that al answers found though death-qualification “may examination not have been perfect respects, in all it was sufficient to enable and counsel jurors’ the court to evaluate fitness to serve.” Ibid. We in Rose trial courts “take account observed could into defendant’s concerns about the collateral effects of the death qualification process” and address these concerns in the course 477, of the voir dire. 112 N.J. at 548 A.2d 1058. We never intimated, however, capital-murder the trial of a case involving guilt punishment both should be undertaken duly death-qualifying jury. without Although defense counsel’s views of extent and duration specific may questioning scope influence the of the examina potential jurors, tion of not prerogative counsel does have the dispense qualification. process death of death qualification way is only and the State defendant are jury predetermined preconceived assured that the harbors no can apply determining biases and follow and the law whether the defendant is to live or die. The failure to conduct an extensive, qualification death inquiry, individualized if even strategic counsel, result of a and informed decision defense negates that It inescapably assurance. constitutes irremediable II, supra, 413, error. See Williams 113 atN.J. 550 A.2d 1172. us, facts On the before grant trial court’s decision to request defense counsel’s qualification only to limit death questions printed questionnaire those was error sufficiently “egregious mortally as to cut into [defendant’s] rights____” Ramseur, substantive supra, 106 N.J. at 524 (citation omitted) A.2d (quoting 188 Harper, v. 128 State N.J. 270, 277, Super. denied, (App.Div.), 771 A.2d 65 N.J. certif. (1974)). A. 2d adequate qualification Because juror is an imperative condi- capital-murder tion for a valid prosecution, extraordinary impor- tance death-qualification attaches to the dire process. voir

221 152, 887. In II, supra, 112 at 548 A.2d State Bey N.J. v. State 130, 29, 2d we under supra, 106 N.J. at 524 A. Biegenwald, v. “searching interro voir dire indispensability scored earlier stressed in obtaining impartial jury, fair and a gation” Hunt, 39, I, In v. 459 A.2d 641. State supra, 93 N.J. Williams 1259, “An 348, impartial stated: at 558 A. 2d we supra, 115 N.J. trial, and a is, course, necessary condition to a fair is essential designed expose potential bias dire voir impartial jury.” ensure an clearly dispenses the need for a majority tacitly but exposes, if it does not

fully death-qualified jury. Its decision create, jury’s responsibilities to conflict between the distinctive punishment. The decision be- guilt and Court’s determine assumptions required the use of us to revisit the hooves prose- for the death-qualified juries a bifurcated-trial scheme original again should ask the capital cution of causes. We guilt of a constitutionally permissible try question: is it death-qualified jury? capital defendant with 248-54, Ramseur, 2d supra, 106 at 524 A. This Court in N.J. majority in 188, reasoning, chose to follow the without extended 162, 1758, McCree, 90 476 106 L.Ed.2d Lockhart v. U.S. S.Ct. case, however, (1986). Marshall dissent 137 In that Justice qualifica persuasively very process that “the of death showed penalty death tion—which focuses attention on the .before jurors begun predispose found to trial has even been —has guilty.” at that the defendant is Id. that survive it to believe (citations omitted). 188, 1772, A at 90 L.Ed.2d at 157 106 S.Ct. simply rejected argument in a majority justices of five n. 90 at footnote. Id. at 170 n. 106 S.Ct. at 1763 L.Ed.2d acceptance of the disagreed 146 n. 7. I then with our Court’s matter, Ramseur, Supreme on this 106 at Court’s view N.J. 428-35, (Handler, J., dissenting), and have contin 524 A.2d 188 See, II, disagree e.g., Bey supra, v. ued to with it. State 191-98, (Handler, J., dissenting). In both at 548 A. 2d 887 N.J. 431-32, (Handler, J., Ramseur, supra, 106 at 524 A.2d 188 N.J. II, 191-92, dissenting) 548 A.2d Bey supra, N.J. 222

(Handler, J., dissenting), I the cited valid studies and author- support ongoing itative social science research that demon- qualification propensity strate the effect of death on the II, to In I jurors Bey convict. wrote: makes the death issue of process [of paramount the qualification] imposi- suggesting guilt tion death thus itself, the the defendant penalty foregone conclusion. See ais “On the Selection of Juries: The Haney, Capital Biasing Law Hum. Effects of Death 8 Behav. Process,” 121 Qualification (1984). death-qualifying voir One cannot read the of a dire without a transcript impending v. See State 106 N.J. sense of doom. Ramseur, 341 331, [524 (O’Hern, (citations omitted). concurring) J., A.2d 188] 112 N.J. at [Id. 548 A .2d 192, 887.] Knowledgeable attorneys in capital recognize, defense causes attorney as did Marshall’s and the attorney, co-defendant’s qualification jurors predisposes death to a guilty return verdict. capital prosecutions, In attorneys “defense are forced to consid er questioning whether it is better to minimize prospective jurors in efforts limit by qualification.” biases created death Hans, by Jury,” Capital “Death in Challenging Punishment 149, (K. Inciardi, eds., (hereafter 1988) “Hans”). 158 & J. Haas empirical case support This adds qualifi view death engender cation can levels intolerable of bias of a trial capital respect case with guilt. to the determination criminal knowledgeable If experienced persons, and well-prepared, skilled, highly qualified extremely vigorous as in attorneys, case, 165, 169, 171, 174, this ante at 586 A .2d at understand death-qualified that a jury predisposed is believing toward a charged capital-murder then, defendant guilty, is how this good Court in conscience reject can continue to that under standing mystery. is a

I remain convinced that trial methodology, bifurcated death-qualified juries, with its use of fundamentally is flawed. My strengthened conviction is this case. The Court has consistently rejected argument process that the of death qualification jurors conditions the to assume the defendant’s guilt, violating thus right defendant’s an impartial jury. See, e.g., Rose, supra, State v. N.J. at 548 A .2d1058. here, acknowledges validity of yet implicitly And the Court position professed reject. It thus characterizes it has qualification “a request counsel’s to limit death as defense exposure strategic attempt juror to limit well-considered concerning capital punishment.” Ante at questions acknowledge is fails to that its A. 2d at 131. What Court decision, effect, capital-murder give our statute to construes options: death-qualified a defendant choice two a between guilt jury non-death-qualified to determine to deter try death-qualified jury a with mine sentence. To defendant a jury guilt. try a a try predisposed is to him toward To with death-qualified try is to him jury defendant with a that is not jury may death. predisposed a that be toward Neither constitutionally choice is tolerable. Ramseur, ways

There are out of this dilemma. In v. State capital supra, O’Hern contended that a defendant Justice by jury from the jury should be sentenced a different wrote, guilt. question by this: is a found his He “The is trial prone good truly is a cause for a jury that not more to convict I think is. It is hard to state trial? that it a better bifurcated J., 339, (O’Hern, concurring). at 188 cause.” 106 N.J. 524 A.2d agree repeat I that “I continue ... with Justice O’Hern here providing the in for a ... inconvenience entailed non-death- qualified jury impartial fair and the trial of is —one —in high price pay not a guilt is too vindicate constitutional 198, II, supra, 112 N.J. at 548 2d 887 Bey interests.” A. (Handler, J., dissenting). community.

A death must sentence reflect values Illinois, 519, 88 Witherspoon supra, v. 391 at U.S. S.Ct. 1775, Society L. 783. has 20 Ed. 2d at a critical stake integrity death-penalty prosecution. of Es a See v. Barefoot 880, 913, 3383, 3405, 1090, telle, 463 103 77 L.Ed.2d U.S. S.Ct. (1983)(Marshall, J., dissenting). public’s in a 1117 interest a must fair and reliable determination that defendant die over any separate or even shadows interest of State up defendant. It is not to the defendant to decide whether or 224 capital

how he or she tried for will be murder sentenced to See, Koedatich, 225, 329-32, e.g., death. State v. 112 N.J. 548 (1988), denied, A.2d 939 cert. U.S. S.Ct. (1989). A capital L.Ed.2d 803 defendant cannot be tried exposed penalty any murder or be to the death manner that departs from minimal constitutional governing standards capital-murder prosecutions, which assure that the ultimate capricious, sentence of death is one that is not discriminatory or arbitrary, perceived accepted that can be as reliable and as an expression of the community. capital-mur conscience A proceeding der that fails to reach such standards is unac ceptable a society. civilized my

It remains view that it is unconstitutional to determine guilt a capital death-qualified defendant jury. with a But infinitely greater constitutional offense is if a death sen- imposed tence is capital by defendant a jury that is not death-qualified. The former conviction; risks an unfair an latter risks unfair sentence death. Neither a defendant nor prerogative defense counsel have the to decide whether or death-qualify not to capital contrary cases. The imposed result —a death sentence unqualified jury an —can regarded only be arbitrary, as unprincipled, expedient. Nevertheless, precisely that is the result by endorsed the Court. The failure to death-qualify capital-murder jury this cannot be salvaged.

II. The subjected defendant was to determinations of criminal guilt and, ultimately, the by death sentence jury a that real- may istically well have believed that it could reach those simply decisions if it found that the defense witnesses were not telling credible and were not the truth. That serious misdirec- tion jury’s proper of the responsibility deliberative resulted not merely from incorrect instructions of the trial court ad- that jury vised the it that could resolve guilt ultimate issues of

225 truth; telling the but also from deciding who was sentence bearing on critical evidence provide failure of the State witness. Those circum- credibility key prosecution of a jury’s ultimate palpable danger that the present the stances believed, not on jury based on whom were determinations guilt jury of defendant’s convinced the the evidence whether beyond a reasonable doubt.

A. jury explained to the Concededly, fully trial court however, instructions, the trial proof. In its burden of State’s explanation by advising that the also undermined court of the jury’s determination constitute verdict should truth.” your verdict declare the “truth”: “So let not denied “defendant was simply concludes The Court beyond proof a right only convicted his constitutional to be Viewed 155. doubt.” Ante at A.2d reasonable however, the trial court’s instruction perspective, a from wider only on would be based guarantee not that a conviction did beyond a reasonable doubt. proof case, (1979), bribery Pine, 609 A. 2d In United States v. Circuit considered the the Third Appeals the Court likely jury from to result such and misdirection confusion Pine, in In the trial court’s charge concerning the “truth.” following passage: jury to the included the structions do, case, Fundamentally, question of fact. most eases involves this as telling the question are truth Government’s witnesses The basic is whether the telling the Your basic witnesses are truth. or whether the defendants and their task is to evolve the truth. closing was: court’s admonition 2The said, many gentlemen, correctly, been Ladies and it has Latin, of the words in that we from the and one words that use are derived category is derived from Latin is the word verdict. word verdict veredictum, your So let verdict declare and it means a true declaration. the truth. 135, 154.] at A.2d at [Ante 586 [Id. 107-08.]

Observing that such an instruction thereby tends “to dilute and impair requirement beyond proof the constitutional a reason- doubt,” Appeals able the Court of directed all trial courts using Third Circuit to desist from such instructions. Id. at 108. Nevertheless, examining objectionable instruction in the jury charge, context of the entire the court held that the trial court’s instructions did not rights violate the constitutional the defendant. Id. at 109. single

Of course a instruction to jury should not be as “in sessed artificial Cupp Naughten, isolation.” v. 414 U.S. 141, 146-47, 396, 400-01, (1973); S.Ct. 38 L.Ed.2d Hunt, supra, v. State 115 N.J. at 558 A. 2d 1259. To determine whether the instruction violated defendant’s constitu rights, tional the Court should consider the instructions both in complete the context jury charge the wider perspective of prosecution.

Here, prosecution, from the outset of parties initiated telling battle over which side was prosecutor truth. The insinuated in his opening statement that Marshall was a liar credibility and that the of his testimony was a central issue in opening the case. The statement sug- Marshall’s counsel gested Billy Wayne McKinnon was a liar. Marshall’s attorney jury, you told the “I ask to closely listen to [McKin- non], closely demeanor, scrutinize his you’re going because have your to decide in you mind whether can believe that man beyond a reasonable doubt.” That battle intensified during the phase evidentiary of the trial. McKinnon and Marshall were critical defense, witnesses for the State and respectively. import could not person’s believe the of either testimo- ny and story. also believe the other’s The defense cross-exam- length ined McKinnon at and vigorously credibility attacked the testimony; of his subjected the State to similar Marshall treat- ment. McKinnon’s and Marshall’s veracity challenged through other as witnesses well. McKinnon or sharpened the issue whether

The summations relationship, their the telling the truth about Marshall was murder, happened and what at the leading up the events opened his remarks Oyster prosecutor Picnic Area. Creek are jury the case turned “what witnesses by telling the that He contin- are not believable.” and what witnesses believable in diametrically opposed this case testimony is so ued: “[T]he there has a conscious question can be no been that there He you. Make no mistake about that.” told effort to deceive you have not found the truth that have jury, the would “[Y]ou during if not course of this trial” McKinnon had seen unfold the He agreement repeatedly and assert- signed plea testified. the witnesses, all the jury have find State’s ed that the would together, in find the defen- to be liars order to separately and attorney’s closing argument also guilty. dant Marshall’s not jury determining matter of presented the case to the as a you can believe and jury truth. He told the to consider “[w]ho believe, in here with a you’re going not and who comes who to tell the truth.” motive to lie and who comes in here Thus, charge, attorneys’ and prior jury to the statements jury present the case to the as a evidence combined conspiracy murder —the question of which of the and version question This was inter- State’s or the defense’s—was true. credibility twined of the of the witnesses’ testi- issue augment- mony. Against background jury instructions credibility. importance jury ed the The court stated that the determining all “in testimony should consider what is the truth;” and, again, anything the jury should “consider everything determining (Empha- ... in what is the truth.” added.) Finally, any sis the search for distinction between “truth” and the standard confused reasonable-doubt became jury when trial that it could consider court told credibili- ty deciding of proof whether the State had carried its burden beyond Hence, jury a reasonable doubt. the references this charge duty only could to a to find truth obfuscate proof impair require- standard of the constitutional correct proof beyond ment of a reasonable doubt. United States v. Pine, supra, 2d 609 F. at 108. emphasis throughout

The cumulative on “truth” the entire guilt phase very danger of this trial created real that the guilt legal did not render its proper verdict on the standard. this, case, especially capital any legitimate Most question- error, ing implicating of such right defendant’s constitutional to capital only proof beyond be convicted of murder on a reason- able doubt should be resolved in defendant’s favor. This is particularly extraordinarily critical important because evidence bearing directly credibility key on prosecution the of a witness defense, and, was withheld from the ultimately, jury. the

B. The Court concludes no reversible error inhered in the State’s failure to disclose vital bearing directly information on the credibility key prosecution witness, of a Sarann Kraushaar. 204, Ante at disagree 586 A .2d at 194. I with the Court’s disposition issue, particularly light this of the trial court’s strong direction the that it guilt must determine based telling on who was the “truth.” The State dispute prosecutor did not that had not dis- closed evidencing defense the grant documents immunity to that Additionally, witness. the State conceded that the material was improperly discoverable and had been withheld. The lower court concluded that the failure to disclose pertaining promise documents to the of immunity for Kraushaar had not been willful. seriously

The lower court importance understates of this being merely person witness “as with-knowledge of relevant added.) (Emphasis facts.” The acknowledged court Kraushaar had important furnished information. This included “the details of her Marshall, affair with plan Robert leave their respective spouses, the financial difficulties that having, Marshall was the fact that insurance on Maria’s life difficulties, had fact that Marshall these would solve [and] This evidence was desire to have his wife killed.” inferred a relevant, extremely probative of only but also defendant’s not motives. Septem- obtaining some of this information initially

After 7, acquire sought reconfirm and addition- the State ber scheduled another interview for Accordingly, information. it al attorney, At had an September 1984. that time Kraushaar grant immunity prosecution. from The insisted on a who granting request prepared a letter acceded to that State attorney to the over the tele- immunity, which was read such Then, a similar letter phone the interview occurred. before actually investigating prepared signed officers transpired only attorney’s office. The second interview immunity had secured. after the been court, simply “placed prosecutor, according to the lower thereafter, and, file assumed that in the Marshall [the letters] them____ persons all concerned in his office would know gave thought to them.” The lower court then no further [and] by theorized non-disclosure the State had been inadvertent. that willful, the concluding In that the State’s action had not been gave significant weight to a not to withhold this court “motive” however, “motive,” hypothesis, pure con- information. That is prosecution’s of putative strength structed the the ease.3 purpose a 3The that the State did not have or lower court’s determination conjectural, motive to is withhold information viz: supported by the was willful is conclusion that non-disclosure not question of motive. Presence or absence of motive examination wrong upon bears whether an intentional would be committed. There the documents in to would have existed motive to conceal the order prevent being credibility the the their utilized to affect of witness. How- ever, aware could the Prosecutor would have been that he demonstrate 7, September portion story that a told on substantial of Kraushaar's was 1984, twenty days prior any immunity. of He was to discussion aware of be, together testimony Billy Wayne what the the of McKinnon would plausible not to fact that it would have been for McKinnon have been (as State) accomplice alleged by murder an the or involved in the either as 230 ordinarily fact-finding

This defer the Court must of judge, opportunity who had trial has the first-hand to assess Johnson, 146, credibility 42 of the witnesses. State v. N.J. 161, (1964). Nevertheless, 199 809 no were A.2d facts adduced support the conclusion that case State believed its against strong defendant was so it that had no reason of grant immunity. withhold disclosure Kraushaar’s To theory credit impute that one would also have to to the a State belief that the information it from obtained Kraushaar from the really unnecessary wholly second interview superflu testimony inconsequential ous and that her trial was either or impregnable. clearly suggest The record does not that prosecution position entertained that acted In on it. view determining, the trial reliance on court’s the State’s motive in adequate support, nonwillful, without that nondisclosure was its conclusion not should be credited.

Moreover, determining prosecutorial whether nondisclo “[i]n process, good sure violates due faith or faith bad prosecution Carter, 86, is 112, irrelevant.” State v. 91 449 N.J. (1982) .2d (citing 87, A 1280 Brady 83, v. Maryland, 373 U.S. 1194, 1196, (1963)). S.Ct. 10 L.Ed.2d In the context of non-capital recognized “[wjhere crime we have the defen request dant has made specific for information and the prosecution has requested information, failed reveal the materiality standard of is suppressed whether ‘the evidence ” might have affected the (quoting outcome the trial.’ Ibid. 97, 104, Agurs, 2392, 2398, United States v. 427 U.S. 96 S.Ct. (1976))., 49 L.Ed.2d That “is test not into translatable possibility mere might the undisclosed information (as alleged by as Thompson) except shooter at trial co-defendant at the instigation of Marshall. He was aware he could demonstrate false and inconsistent following statements made Marshall the murder. He compelling guilt. Being aware of the circumstantial evidence things, any aware of all these on balance motive for nondisclosure and its accompanying being risks —the documents also in Altman's sub- file —was stantially outweighed by the motive to disclose.

231 defense____ helped possibility have There must be a real result.” that the evidence would have affected the Id. at case, capital 96 at 2402. Because this is a we should S.Ct. adopt protective under our State Constitution a more standard. See, 667, 682, e.g., Bagley, v. United States U.S. S. Ct. 3375, 3383, (1985) (If 87 L.Ed.2d absence of undis closed evidence is “sufficient to undermine confidence in the outcome,” material). nondisclosure is importance credibility unquestionable. is Kraushaar’s relating grant immunity The undisclosed information to her surely provided impeach would have a means to her. On points, including particularly testimony several her about Mar- wife, status, getting shall rid of his his financial and his anticipation proceeds, testimony of insurance her and the defen- sharp Credibility dant’s were in conflict. as between those two conflicting extraordinarily important. witnesses was Knowl- edge immunity prosecution of Kraushaar’s from could have provided jury exaggerating a basis for the to infer that she was her version of the events. In view of the extensive and vigorous sharp credibility cross-examination and attacks on the witnesses, McKinnon, key prosecution of other it like cannot be effectively assumed that defense counsel could not have weak- testimony they grant ened Kraushaar’s had known of her itself, immunity. prose- Because the trial court as well as the" cutor, issue, put credibility might the result of the trial have impeach been affected had the defense her been able credibil- ity. Although testimony directly placed none of Kraushaar’s conspiracy implicated Marshall in him in the murder at Area, Oyster clearly Creek Picnic it furnished evidence of a strong strenuously to kill his motive wife. Defendant chal- lenged just this evidence and was denied without cause opportunity challenge credibility of its author.

C. sum, In directing the trial court’s instructions credibility focus witness and to reach a verdict that reflected

232 part enabled in or in on the “truth” convict whole weight credibility, cogency aside and of of the from all authority simply legal evidence. There is no that a criminal special mirror “truth.” That takes verdict must error on a light effect in of the fact that defendant was denied the challenge opportunity fully credibility key of a prosecu- Particularly, capital-murder in a tion witness. the context of prosecution, passed such errors cannot be off as innocuous or harmless.

III. rampant throughout Prosecutorial misconduct was the trial. The finds justification Court no of reversal defendant’s grounds. disagree. conviction or death sentence on those I A capital case solemnities prosecutorial and enhances the responsibility every legitimate “to use bring means about Ramseur, 320, just supra, State v. 106 N.J. at 524 [result].” (citations omitted). A. 2d 188 super It also elevates the court’s visory duty to prosecutor’s “particular assure adherence to the stringent ly obligations capital ethical cases.” Id. at 524 188; II, supra, A.2d see Williams A.2d N.J. 1172.

The pattern reveals part .record of calculation on the prosecutor that underscores the offensiveness his conduct. prosecutor constantly needling made obviously remarks designed only aspersions defendant, to cast defense witness- es, and gibes, individually togeth- defense counsel. These and er, but, reversal, do not warrant with other tactics prosecutor, they injected opprobrium a tone denigration place addition, that had no In this trial. prosecutor brought to the jury, against attention court instructions a manner prejudice defendant, calculated to assorted inflammatory irrelevant and prose- tidbits of information. The noted, cutor for example, that Sarann Kraushaar’s father had died of a murder, heart attack fewa weeks after the implying connec- horror at Kraushaar’s to the man’s that it was related response pointed In murder. and the tions to defendant prom- court, prosecutor several times from the admonitions speaking from about some he would refrain the court that ised topic that subsequently broach topic, but would objectionable Additionally, many of respond. could defense counsel before strongly that defense questions insinuated his comments and investigator, had counsel, and the defense as defendant as well Although investigation Louisiana. conspired to obstruct the remarks, objectionable he made often withdrew prosecutor damage cannot dis- frequency that their be them with such short, prosecutor simply say In to was counted. away by the emotional trying the case or was carried spiritedly improprieties Most of those were pitch of the trial is naive. calculated. background, prosecu- instances of the

Against that certain starkly. example, For improper tor’s conduct stand out testify only investigator Mahoney could trial court ruled that terminat- September 21 interview with defendant “was ed,” that he had been advised by to avoid disclosure defendant officials by say anything counsel not to to law enforcement Yet, presence of counsel. about the case outside the in the persistently placed jury, albeit prosecutor before witness, questions the fact that defendant had form of to the effect, guilt. attorney, betraying retained an his own evidence of his The Court stresses that defendant introduced 122-123, 586 A.2d at 147-148. retention of counsel. Ante at Nevertheless, excuse, justify, prose not or undo the that does right attempt penalize defendant’s of his to cutor’s exercise guilt. by improperly suggesting defendant’s “Even the counsel do well to retain counsel.” Bruno v. most innocent individuals Rushen, 1193, (9th Cir.1983), 721 1194-95 cert. denied sub F.2d 302, Bruno, 920, 469 105 83 McCarthy nom v. U.S. S.Ct. “ omitted). (1984)(citations ‘[Ljawyers in L.Ed. 2d 236 criminal ” Wainwright, courts are necessities not luxuries.’ Gideon v. 335, 344, 792, 796, 799, (1963) 372 9 805 U.S. 83 S.Ct. L.Ed.2d 234 omitted).

(citations impugning Prosecutorial conduct the reten by equates a defendant tion counsel serious trial error. Rushen, supra, (prosecutor’s Bruno v. 721 “insid F. 2d 1195 right ious” attacks defendant’s exercise of his counsel integrity on the of defense counsel were errors of constitutional dimension); McDonald, 559, (5th Cir.1980) v. 620 F. 2d 564 State (“It prove impermissible attempt is guilt defendant’s ominously pointing sought to the fact he has the assistance counsel”); United ex Yeager, States rel. Macon v. 476 F. 2d (3d Cir.1973) (prosecutor’s penalized 613 comment defendant exercising right his to counsel and was thus constitutional error), denied, 154, 414 94 cert. U.S. S.Ct. 104 L.Ed.2d (1974); Daoud, (1st see United States v. 2dF. Cir.1984) (trial request court’s refusal of defendant’s cura instruction, prosecutor tive “needlessly” where twice elicited testimony requested that defendant had counsel after issuance error). warnings, of Miranda Although the attempts bury Court this error in other evidence, 126, 149, at ante 586 A. 2d error at the cannot be made to disappear. brevity The of the comment the context lengthy of this trial not does render it The harmless. fact the reference to defendant’s retention of counsel was in the question of a form rather than a statement does not lessen its prejudicial impact. agreed ques The trial itself court that the argumentative, tion was jury the intended effect on the dependent was not question on whether the was answered. importantly, Most prosecutor’s the insinuation was calculated and struck the Rushen, at core of the defense. Bruno v. supra, 721 2d attempt F. at 1195. The prove defendant's guilt by pointing to defendant’s retention of counsel can be McDonald, per harmful se. v. supra, State 620 F. 2d at 564. species This prosecutorial misconduct is reversible error. prosecution The implied also referring phantom facts witnesses who were not testify. example, called to For the financial condition of the family defendant’s at the the time of major a murder was issue. The success either the State’s theory significantly depended case or the defense jury what the believed about defendant’s financial status and asserted, planning. prosecutor twice, The not once but that the figures prepared had he were correct and based on sources if industry, challenged the financial and that the defendant prosecutor’s figures, prosecutor bring then would in wit- wrong. nesses to show that defendant was Rose, 518-19, 1058, In supra, v. State N.J. at A. 2d prosecutor’s this found “the improper Court he statement that produced experts testify could [concerning have ‘ten’ defen differently dant’s mental experts.” from defense condition] prosecutor’s The improper assertions here were less no than the Rose, given importance statements in fi defendant’s prosecutor jury concerning nances. The misled the infer ences it improperly pitted could draw. He also his own credibil ity against 1058; defendant’s. Id. 548 A .2d ABA see 3-5.8(a) (b). Standards Criminal Justice trial § for sustaining objections court’s hardly could made have jurors infer, they clear to the what could not nor have could it implications caused them to erase their from minds. Furthermore, prosecutor made remarks of a testimonial unsubstantiated, character that namely, were that defendant already had received six hundred thousand dollars and that in of acquittal, the event “the checks will the mail be within misrepresentation week.” improper. Such blatant of fact is Rose, 1058; supra, 112 N.J. at 548 A .2d ABA Standards Justice, 3-5.8(a) (“It unprofessional Criminal is conduct § for prosecutor intentionally to misstate the evidence or mislead the may draw”); as to the it inferences New (“A Jersey Rules lawyer Conduct 3.4 shall not of Professional (e) trial, any ... allude to matter ... will not be supported by evidence”). admissible Such references divert the jury’s attention from the fact misrepre issues the case. The Indeed, sentations were prosecutor emphat not accidental. the ically misrepresentations. attested to truth the of his

236 personal knowledge “[I]mproper apt assertions are ... against carry weight they the when much accused should 78, States, properly carry Berger 295 none.” v. United U.S. 88, 629, 633, 1314, (1935); 55 79 1321 S.Ct. L.Ed. see also Ramseur, 321, (well-established .2d188 supra, 106N.J. at 524 A may express prosecutor personal rule that not belief in defen guilt jury’s it dant’s because diverts attention from evidence 380, 398, trial); Thornton, adduced at v. 38 N.J. 185 .2d State A (1962) (prosecutor expressing personal 9 must refrain from danger may belief that his or her official because of status 816, improperly jury), denied, 374 influence cert. U.S. 83 S.Ct. (1963). 10 1039 L.Ed.2d Moreover, improperly jury those comments instructed the on consequences acquittal, implying that a conviction was against the only precaution receipt of defendant’s insurance proceeds. prosecutor argument “The should refrain from jury duty which would divert from its to decide the case evidence, injecting by guilt issues than or broader law, innocence controlling of the accused under the making predictions consequences jury’s of the of the verdict.” 3-5.8(d). ABA Standards Criminal Justice Darden § Cf. 168, 179-80, 2464, 2470-71, v. Wainwright, U.S. S.Ct. (1986) 91 L.Ed.2d (improper imply only guaran 156-57 against tee future similar death penalty); criminal act is State Koedatich, 323-24, (state v. supra, N.J. at 548 A .2d 939 arrested, ment that had defendant not been “he would have given misconduct). been to kill” deny license constitutes In ing defendant’s motions for a based mistrial on those com ments, gave instruction, only very trial court brief squarely which did prosecutor’s not refute avowal that defendant, if acquitted, quickly money. would receive insurance addition,

In prosecutor improper made references his experience, attempting to jury’s perception influence the of the evidence. He his own testimony added to the evidence concern- ing shape supposed size and mail depository, a disputed trial, factual throughout issue that was the resolu-

237 tion of the., which influenced the many determination of evidentiary Ramseur, issues and inferences. supra, 106 N.J. 321, at prosecutor’s 524 A. 2d 188. The experi reference to his ence in the middle of might summation impermissibly well have placed prosecutor’s authority argu behind his summation concerning many ments evidentiary 320, other disputes. Id. at 524 A. 2d 188. may statements weight add the “[S]uch prosecutor’s personal official and knowledge influence and probative adduced, force of the evidence creating thus possibility jurors that the consciously unconsciously might adopt prosecutor’s view applying without their own inde pendent judgment to the Thornton, evidence.” supra, State v. 398, 38 N.J. at .2dA 9.

Further, cross-examination, counsel for both Marshall and Thompson plea agreement combed McKinnon’s statement, attempting question to call into both McKinnon’s motives be- agreement hind his and the substance of his version of the conspiracy and prosecutor murder. The legit- countered that imate defense tactic in closing argument his by vouching for the truth of testimony McKinnon’s representing to the facts—the truth of which cannot be known—about the de- fense’s nothing cross-examination that had to do with the evidence in the case. He also insinuated that defense counsel acting improperly in challenging the plea-agreement and the reliability of testimony, McKinnon’s observing, again on his experience, that the defense was a sham.

The Court treats these several dismissively, circumstances 153-155; 156-159, ante at 165-166; 166-168, 586 A.2d at yet diverting jury’s attention from the facts of the case is clearly improper. Ramseur, supra, N.J. 524 A .2d 188; Thornton, supra, 9; 38 N.J. at 185 A .2d ABA 3-5.8(a). Standards Criminal prosecutor Justice A can § not allude to supported matters not by evidence admitted at trial. Jersey See New Rules Conduct 3.4. of Professional

Further, prosecutor stated in summation: bring And he has the in his three That’s obscene. audacity boys testify. being thing.

And I’m not critical of because I them, would do the same probably To his on that witness stand is and for that put obscene, there’s boys place anything hell for him. He use will he will and he do will anybody, say anything, including get his own out from under. And that’s Kobert family, Marshall. Make no mistake about it. Oakley summation, After the defendant moved for a mistrial based those remarks. simply The trial court instructed the jury that right bring defendant any “has witnesses testify ... on his behalf and that no adverse inferences should be drawn against merely the defendant because his sons testified as witnesses on hardly palliated his behalf.” Those instructions “obscenity” prosecutor that the ascribed to defendant. The prosecutor’s studied, comments coldly were calculated remarks designed prejudice defendant. Such forceful and vivid re marks overwhelming carried an capacity to jury’s divert the proper See, attention from the fact issues in the e.g., case. Ramseur, 322, supra, 106 at N.J. 524 A. 2d 188.

Additionally, in sentencing-phase his statement to jury, prosecutor expressed personal his view that nothing there is “more heinous in our society than to somebody ... hire to kill else,” somebody particularly family “a “your member” such as victim, wife.” He added prior that the “had no criminal histo- ry” and was “civic-minded” but that give “defendant did not option her the thirty years.” Those clearly improper. comments were prosecu- What the tor thinks is the most heinous crime in our society is not relevant to properly the issues jury before the sentencing; at it has the indirectly adding effect of to the penalty trial an factor, aggravating c(4)(c),that was not jury, before the and in phraseology expressly disapproved by this Court. See Rams- eur, supra, 321, 188; Thornton, N.J. at 524 A.2d supra, 38 Further, N.J. 185A.2d 9. the victim’s lack of a criminal record and civic-mindedness were not relevant to defendant’s effect, sentence. In prosecutor rated the victim under the mitigating sought by defendant, factors subtly impermissi- but bly diverting jury’s consideration of mitigating these factors from defendant’s character to the character of defen- encouraged dant’s wife. It to find if his wife was law-abiding, mitigating civic-mindedand factor not would be defendant, leaving available to him unworthy of a life sentence. remarks, unusual, These insidious in the highly context of the sentencing phase proceedings, abbreviated denied defendant protections required penalty in a fair proceeding. question remains whether that stream of misconduct respectively warrants reversals of the murder conviction and the death sentence. “The prosecutor determination that the guilty of misconduct does not end inquiry.” Rams [the] eur, supra, 106 N.J. at .2dA 188. None of the instances of trial, misconduct that occurred in guilt as here, detailed can arguably be slip tongue, described as a of the consequence an charged unavoidable atmosphere of a trial, criminal good a mistake committed faith. To the contrary, those clearly instances were attempts deliberate place matters pertinent not guilt defendant’s or innocence jury. before the The and meager attempts by few somewhat the court and damage counsel to correct wrought by the these acts of inadequate, misconduct were and some of that miscon duct, certainly effect, and its cumulative was incurable.

The greatly misperceives Court impact the of this miscon duct. Ante at 586 A .2dat 174. Prosecutorial misconduct guilt phase at the requires reversal of the capital- conviction of prejudice murder. The resulting from that misconduct was by prejudice escalated the prosecutor’s arose from the improper remarks, penalty-phase warranting reversal of defen dant’s death sentence.

IV. This case can, do, underscores the deficiencies that and often imposition surround the of the death by invoking sentence the bifurcated trial methodology, which entails the continuous but ostensibly separate guilt punishment. trials of and The use in

240 proceedings jury continuity. both of the same achieves The application procedural of different substantive standards and proceeding separateness. “[Djeath-quali rules in each achieves discrete, fication and death-selection are successive determina tions, by appropriate each to be made the under stan Ramseur, 392-93, dards.” at supra, N.J. 524 A .2d 188 J., (Handler, dissenting). guilt Continuity between the and only penalty pur trials serves The administrative convenience. pose separateness penalty hearing the assure is to penalty independent determination is objective, and truly focused on the ultimate issue death-worthiness of case, aspect In penalty-phase defendant. this fundamentally wholly trial unfair it because failed separate jury’s responsibilities guilt respect with punishment.

A. solely aggra Defendant’s death sentence was one based factor, c(4)(e), vating duplicated which an element of crime for which he charged was convicted. Defendant was capital consisting murder of a murder contract. N.J.S.A. 2C:ll-3. statutory Defendant claims this structure which crime, capital crime, death-eligible is coextensive with a death-worthy crime is unconstitutional because it fails to nar row the class of eligible murderers penalty. death today rejects Court strength that contention on the of Rams eur, supra, 137-138, N.J. at A. 2d 188. Ante 586 disagree A. 2d 156. I continue to with the Court’s position grounds. on constitutional a matter of its basic “[A]s definition of murder effectively telescopes the statute the defi narrowing nitional death-eligible of the class of murderers with jury’s finding the aggravating of sentencing.” factors at Ramseur, supra, 403, (Handler, J., 106 N.J. at 524 A.2d 188 dissenting).

241 shortcoming in failing the statute sufficient narrow ly capital-murder eligible the class of defendants receive the particular death sentence the trial penalty commences is before ly significant in jury this case. The here to deter was asked guilt mine in the trial guilty whether defendant was through payment murder wife of his the of consideration person. payment another That of element—the consideration— aggravating was the sole factor that the on in State relied seeking penalty. the death In wake of the multitudinous issues, and the circumstances resolution numerous factual as guilt, phase well as guilt the ultimate determination at the trial, penalty phase this genuinely require did not or allow jury additional, significantly to render an different decision concerning phase penalty defendant’s death-worthiness. The simply jury already asked reconsider the evidence it had guilt phase. 61, assessed at the ante at 586 A .2dat 114. See To think jury sufficiently that the objective could be its second assessment of such is evidence unrealistic and naive. It begin phase has been that “[cjapital jurors penalty observed story developed during guilt phase____ [Ojnce with a story developed, jurors likely has are been to resist reconstruc Hans, tion supra, of it.” recognized at 162. We have other asking contexts perils jury entailed in a to redetermine already evidence considered and resolved. If a make jury must second, independent guilt, may simply determination it not considered, reconsider previously evidence weighed re reaching previous solved in understanding without verdict fully that its reconsideration of such evidence must be fresh and independent. 204, Ingenito, State v. A .2d912 N.J. (1981). therefore, essential, “It becomes in that the be structed in no uncertain terms to consider evidence anew the previously disregard prior admitted but to completely its ver dict.” Ragland, v. State 105 N.J. A .2d 1361 (1986). When the is imposi redetermination the basis for the tion of penalty, reasonably the death may efficacy we doubt simple, pro jury merely instructions that allow forma previously digested

churn evidence. case, In this there is little assurance that the instructions of guilt the trial court were at all effective. The penalty collapsed determinations were in effect into each other because statutory the identical element defined both the crime and the Also, noted, punishment. as the critical evidence that convert- capital ed this crime into murder only— was the identical—and justify evidence that could the death sentence. equally

Other serious deficiencies occurred in imposition of the death sentence. The punishment fusion of crime and penalty was intensified because the per- determination was so functory as to be indistinct jury’s guilt from the determination. overlooking problems Even inherent in the trial bifurcated system, not, been, this trial was as it should have truly bifurcat- ed.

A sentencing not, short phase itself, will necessarily im pugn the sentencing determination, ultimate but here neither the State nor developed defendant any independent evidentiary record in the penalty phase. only evidence available and penalty phase used in the to seek the death sentence was the probative evidence that was on the guilt. issue of Defense counsel solely relied presented evidence in defense of the charged. crime There is no suppose reason to that the evidence by offered guilt defendant at the way trial of a defense to charges be more than marginally helpful respect could to whether he only imprisonment. deserved life During the trial, defense guilt case the defense witnesses had particular testified in no particular order and with no focus on defendant’s death-worthiness. Such an unstructured and loose approach mitigating to the factors is unacceptable given the decision, “ultimate” see Biegenwald, State v. supra, 106 N.J. at 524 A. 2d for which proceeding designed is provide guidance.

Further, and, problem of the scant at the time of the compounded sentencing phase, mitigating distant evidence was timing sentencing phase. sentencing by the The entire phase place day jury guilt the returned took same its verdict, guilt with the of its determination still vivid. awareness Indeed, sentencing began phase only a few hours after the completed. sentencing guilt phase had been The record of the including closing phase opening the court’s remarks to its requires only pages transcript. instructions seventeen This conveys thoroughness superficial only record no sense of and gravity. sense argued capital right

It has been that a defendant’s to a guilt sentencing phases continuance between the and is of Note, magnitude. Capital constitutional “A Defendant’s See Right to a Continuance Between the Two Phases of a Death Trial,” (1989). Penalty A N.Y.U.L.Rev. 579 continuance is defendant, partly jury, advisable because the and defense emotionally capital counsel need time to recover from the sentencing. conviction and to focus on the issue of at 582. Id. This is guilty observation not an idle one. On return of the trial, collapsed, verdict at this defendant was taken from the stretcher, transported hospital. court on a and then to a Less later, than two and a half hours defendant returned to begin sentencing phase, approximate- court to which lasted ly twenty deliberating minutes. After for about an hour and a half, returned a sentence of death. level,

It has been further noted that on a substantive defense attorneys capable adequately preparing are not for the two guilt Ibid.; sentencing simultaneously. Goodpast- and trials — — er, Adversary System, Advocacy, “The and Effective Assist- Cases,” ance of Counsel in Criminal 14 N.Y.U.Rev.L. & Soc. 59, (1986) (“Penalties Change capital ultimately 83-85 cases mitigating ability will turn on on evidence and the advocate’s present marshal and As a evidence. matter of law and practice, opportunity present any arguably almost miti- gating crucially distinguishes evidence penalty death trials trials.”); also all other criminal see v. Wain

from Proffitt (11th Cir.1982) (Clark, J., concur 685 F. 2d wright, dissenting) (quoting Project and ring A.B.A. Standards Justice, Relating Func Standards to: Prosecution Criminal (1970): “The lawyer the Defense Function 277 ... has tion and very important perform raising role a substantial prosecutor initially factors to the to the mitigating both denied, sentencing.”), court at cert. 464 U.S. 104 S.Ct. (1983). 508, 78 L.Ed.2d 697 It is that some understandable holding sentencing hearing courts from imme states forbid diately Note, following return of “A guilty verdict. Continuance,” Right Capital supra, Defendant’s to a N. 64 Y. U .L.Rev. 623-24.

Newly mitigating might firmly introduced evidence have refo jury’s the and closely jury cused attention attuned the to the meaning Instead, and mitigating function the factors. the evidence, coupled of such the celerity brevity absence with and sentencing trial, open possibility jury of the left the did that the fully properly impressions not and set aside its fixed and the impact guilt truly separate of its deliberations. A distinct and penalty theoretically infusing trial in guilt-phase succeeds evi through dence a different hue because is it filtered prism special protective govern impo that standards integrity sition the death The process sentence. that is dubious, See, even under the best e.g., circumstances. State v. Harvey, 407, 449, (1991) 121 (Handler, J., 581 483 N.J. A. 2d dissenting concurring) (other-crimes and marginally evidence guilt in phase may extremely prejudicial penal admissible be in ty phase; hence, imperative potential preju “it is for such dice of in the penalty-phase evidence trial be considered in determining admissibility trial court its in guilt-phase trial.”); 439, 525-17, (1990) State v. 119 Long, N.J. 575 A.2d 435 (Handler, J., dissenting (same); and concurring) v. State Pen 607-08, 547, 119 nington, (1990)(Handler, J., N.J. 816 575 A.2d dissenting concurring) (prior and murder conviction admitted in guilt phase gains only affect credibility prejudicial added weight aggravating when used a second as an factor in time Hans, penalty phase); supra, sentencing at 162. The truncated case, however, in proceeding theory this defeats the it is guilt-phase fair to use evidence to determine whether defendant repeat deserves to die. I an observation made Ramseur: weighing aggravating mitigating This is not to circum deny stances the additional restraint on discretion that “provides petitioner v. (1983)] U.S. S.Ct. [Zant Stephens, 77 L.Ed.2d 235 2733, argued was The ... constitutional is not constitutionally necessary.” infirmity weighing weighing in a it inheres in the fact that does double process. Rather, factfinding It is used in the to determine whether a murder is duty. necessary proceeding in the same and deliberation that determines whether capital finding aggravating murderer should be executed. distinction between an Any weighing circumstance it when the tasks are in the same performed proceeding jury misguidance is at best, in my view, academic; potential great. and arbitrariness is too simply (Handler, 106 N.J. dissenting) [Ramseur, 524 A.2d 188 supra, 391-92, J., (footnote omitted).] Pertinent to this matter is the further observation that “the jury’s aggravating consideration of speci factors serves both to fy and, which defendants are in the class process, the same punishment____ to decide their per the defendant’s [FJrom spective, imposed the sentence is as and when the offense is (Handler, J., defined” and determined. Id. at 524 A. 2d 188 dissenting). guilt determination penalty overwhelmed the determina- A

tion. death sentence that does not entail a decision that is reliably qualitatively predicate guilt different from its verdict cannot be sustained.

B. addition, In the trial amplify meaning court’s failure to the and function of mitigating prejudice factors exacerbated the inherent in sentencing phase the abbreviated of this trial. The trial during sentencing court’s instructions the phase were they erroneous in that explain adequately signifi- did not Thus, cance and mitigating function of factors. its introduc- tory during sentencing remarks phase, the trial court in- jury prove

formed the that the defendant need not the existence but, rather, mitigating factors only need introduce evidence jury of them in order for the to consider them. The court simply mitigating sought named the two factors defendant jury them, and then told the it had to find history one of no not, activity. however, criminal The trial explain court did meaning mitigating of these Similarly, closing factors. in its sentencing phase instructions, the repeated trial court that the jury did not have to be convinced of the existence of the factors, mitigating if but that defendant any introduced evi- dence related to those though factors —even the court was aware that no such forthcoming evidence would be jury —the weigh had to consider the factors and against them any aggra- vating Again, factors. the court did meaning not discuss the the mitigating factors in the sentencing determination.

Thus, the only court’s reference to the function of mitigating indirect, factors was by-product explanation of its weighing process. At no sentencing phase time did the trial express expound court thought “mitigating factors are those which would tend toward the sentence of life imprisonment.” II, Bey supra, See at N.J. 548 A .2d brief, 887. charge mitigating factors was “[I]n essential ly a recitation of statutory language.” Id. 548 A .2d 887. clearly Court has emphatically imposed require

ment that mitigating fully explained factors be jury. to the II, Bey supra, 169-70, 112 N.J. at 548 A .2d887. The trial court here did jury inform the that it could consider evidence from guilt phase in determining sentence, but the court did not specifically say that the could consider mitigating evi dence guilt adduced at phase. The fact that defense counsel attempted explain to the jury the meaning function of one of the mitigating two factors does not redeem the inadequate instructions of Moreover, the trial court. as previously mentioned, the evidence that the jury considered was offered for a purpose different and in context, a different

247 Furthermore, significantly, guilt. most namely, as it bore evidence, jury already had considered and discounted determining obviously that it did not ameliorate defendant’s guilt. factors, finding mitigating that the cannot be confident

We circumstances, jury under- those demonstrates that under function, meaning or absent clarification stood their deficiency especially jury serious court. This is because factors, mitigating it must only not the existence of must find compare weight and further their to that of weigh them complex and aggravating factors. That delicate deliberative clear, accurate, compre- process cannot fulfilled without be explanation hensive instructions. The absence an sentencing meaning mitigating function and factors at the phase jury risk that the at a raises the substantive arrived capricious imper- in arbitrary sentence an therefore —and missible—manner.

C. significant in foregoing compound errors another error Ramseur, penalty In stated that determination. this Court capital sentencing paramount importance in that “the it is of aware, actions, jury simply consequences is not of its but 316, judgment.” responsibility of its total for the 106 N.J. “jury 524 A.2d 188. The stated further that instructions Court capital the sentencer to cases should never lead believe responsibility determining appropriateness of defen (citing death dant’s rests elsewhere.” Ibid. Caldwell v. Missis 2633, (1985)). sippi, 472 U.S. 105 S.Ct. 86 L.Ed.2d jury capital critically important Correct instructions are eases jury’s responsibility “because of the to decide whether a defen II, shall Bey supra, dant live or die.” N.J. at 548 A .2d charge sentencing phase 887. its to the of a “[I]n trial, capital jury’s a trial court must be careful not to dilute the determining responsibility appropriateness sense of the Ibid, (citations omitted). penalty.” death the introductory sentencing phase In its the concerning remarks sentence, jury’s determination of the trial court said: “You already you in beyond have returned a verdict which concluded guilty a reasonable doubt that the defendant is mur- the der____ presented is here will be concerned with [W]hat which, balance, you or not there are factors whether lead penalty.” conclude that the defendant should suffer the death aggravating The court then identified the mitigating and respect at and proof factors issue the burdens of to those Arguments jury factors. the before followed. began remark,

The final court its instructions with the you have to decide whether or not the defendant is “[N]ow Quite obviously, your be sentenced to death. ultimate decision regard extremely important, in that is perspec- both from the Jersey viewpoint tive of the from State New and the of the acknowledged difficulty defendant.” The court the task, jury’s expressed jury’s ability. but confidence then court stated: “The defendant must be sentenced to death you beyond if are satisfied aggra- reasonable an doubt that vating factor, factor exists and that such aggravating you as beyond doubt, find to exist a reasonable outweighs mitigat- all ing standard, reviewing factors.” After the reasonable-doubt the court explained finding aggravating that not factor prison would in a result sentence and that “the defendant will only be you sentenced death if are beyond convinced reasonable aggravating doubt that the factor exists and out- weighs factors, mitigating factors, and of mitigating all beyond a by calling reasonable doubt.” The court concluded jury’s special form, attention to the verdict which the court “self-explanatory.” described as The record discloses that the court trial twice indicated that the ultimate issue the jury before was whether defendant put should be to death. The recognized difficulty court also

249 deficient, however, are of that decision. Those instructions difficult, they largely issue in terms because cast ultimate point failed process. a mechanical The crucial that the court anywhere sentencing charge that to to communicate was at a verdict to make a “normative arrive death would be fitting punish judgment appropriate that death is ‘the and ” II, (quoting supra, ment.’ 112 at 548 A. 2d 887 Bey N.J. 188). Ramseur, at n. supra, N.J. A.2d Ramseur, disapproved In this Court of instructions that language “simply” to the effect that included fact-finding weighing “merely” applying the law. 106 315-16, Although 524 A. 2d 188. the trial court this N.J. “merely” in “simply” case did not use words such as or its instructions, charge the effect of the was no different from that II, sentencing impermissi Bey in Ramseur. In the instructions bly impression left the that “the mechanics of the statute the ” ‘law,’ imposi jury, “ultimately responsible not the was for the 164, penalty.” tion of the death 112 at 548 A.2d The N.J. 887. suggested part finding in in instructions that case that a mitigating in verdict form of “no factors” resulted a death 163-64, sentence. Id. at 548 A. 2d 887. The trial court here instruction, gave required no to find jury such because the was indicates, mitigating one of the two factors. As the record however, suggested findings by the instructions that certain jury irretrievably would lead to certain sentences. The have, instead, expressly jury court should instructed the that a finding aggravating outweighed beyond that the factor a rea mitigating jury sonable doubt all the factors meant that the fitting considered appropriate punishment death a and for the 164, charge defendant. See id. at 548 A.2d 887. “Such a would ‘suitably juror inappro have directed’ any belief of a about the priateness penalty mitigating of the death to one or more II, 164, Bey supra, (quoting factors.” 112 N.J. at 548 A.2d 887 153, 189, 2909, 2932, Gregg Georgia, v. 428 96 U.S. S.Ct. 49 859, (1976)). L.Ed.2d 883

250 case, jury

In “it is not clear that the that this understood it deciding impose bore the burden of whether the death statutory and sentence that it not relieved some scale as ultimate arbiter defendant’s life.” Ibid. The trial comment, you any aggravating find court’s “Should factor exists, beyond aggravating and reasonable doubt this outweighs factors, mitigating responsibil factor all then it’s the ity Judge impose case,” penalty death in this jury’s responsibility further its diluted the sense delibera coupled Particularly explain tions. when with a failure mitigating factors, “any instruction that to dilute the ‘tend[s] jury’s responsibility passing sense of on the issue life or prejudicial death’ is erroneous” constitutes error. Rams eur, 316, supra, (quoting 188 N.J. A .2d State v. Mount, (1959)). 30 N.J. 152 A.2d 343 Furthermore, convey the Court not sufficiently did to the possible acceptable verdict was a non-unani Ramseur, mous determination. See v. supra, State atN.J. 301, 524 A.2d Finally, 188. because the record and verdict in guilt phase phase, were determinative in penalty trial court’s jury clearly earlier failure to assure that proof understood the acquired State's correct burden of enor weight phase. mous additional penalty jury, as discussed, previously encouraged was authorized and to resolve guilt by deciding determining defendant's credibility, who was telling the truth. It cannot credibility be assumed then that —a concerning telling belief who was the truth —did not also influ jury ence the in determining punishment.

D. This again arbitrary case forces us to confront the results engendered by prosecutorial unbounded discretion. The Court has recognized See, this issue in its decisions. e.g., State v. Koedatich, supra, 250-58, 939; 112 N.J. at 548 A.2d State v. Ramseur, supra, 106 N.J. at 524 A .2d In 188. several power of “virtually unfettered I have condemned cases capital mur prosecuted for is to be prosecutors to select who (1990) 253, 303, 571 .2d914 Frisco, A 118 N.J. v. Di der.” State (quoting v. Matu J., concurring) State (Handler, dissenting and J., (1989) (Handler, 191, 207, 557 .2d 1001 lewicz, 115 A N.J. 483, 499, 2d Kiett, 121 582 A. N.J. concurring)); see also State v. J., concurring) (prosecutor’s (1990)(Handler, dissenting and imposition of death to seek to avoid to allow defendant decision murder, guilty capital though pled even defendant penalty, plea agree governing need for uniform standards underscores egregious example ments). particularly a presented Di Frisco guidance. In that contract- prosecutorial perils of lack triggerman case, prosecuted the defendant the State murder against seeking an indictment even capital murder without This case 571 A.2d 914. higher-up. 118 N.J. at in a contract-murder prosecution presents a different twist Here, penalty against both sought the death the State case. Thompson. The Larry alleged gunman, Marshall and pursued Marshall record, however, prosecutor indicates that fervor, exercising considerably more unrelenting while perhaps is of zeal Thompson. This imbalance restraint with closing argument. After prosecutor’s in the best dramatized (during he closing arguments which rebutting counsels’ defense Marshall and argued conviction of both admittedly for the argued case. He called prosecutor the State’s Thompson), the Marshall; once did he not strenuously for the conviction prosecutor informed tellingly, the Thompson. mention Most deserving of conviction: he felt was more who himself. Don’t He cries for no one but be fooled tears. Don’t by [Marshall’s] signs, no himself. I’ll sit because he loves one but be fooled his “I love you” because with Larry Thompson, across a table from Thompson any day, Larry bargain get. for. But this see is what see what What you you you you greedy, he’s he’s he’s he’s coward, self-centered, desperate, defendant is legend has the in his own mind. No one and he’s a liar. He is a materialistic, Marshall. Marshall as Robert Oakley Robert Oakley per audacity question outstanding dare to and no one would ever He is an citizen in the community, finger to Robert Marshall’s at him. And if it comes down Oakley point juror right against mind would no in their McKinnon, testimony Billy Wayne 252 outstanding of an McKinnon over such Billy Wayne

accept testimony sitting citizen. That is what is in that chair. Make no about it. And mistake wants that’s the that he to swallow. pill you Thompson acquitted charges. prosecu- of all Because the defendant, targeted tor as the more offensive Mar- Marshall shall’s particularly exemplify conviction and death sentence disproportionality resulting arbitrariness and from unbounded prosecutorial concerning discretion. Like the decision whom prosecute, prosecutor’s target may decision to Marshall be “conscientious, subjective highly but nonetheless ... and [is] speculative.” Matulewicz, 207-08, supra, 115 atN.J. 557 A.2d (Handler, J., 1001 concurring). cases,

As I have noted in other guidance of absence prosecutors closely importance thorough, relates to the man See, datory proportionality Kiett, e.g., supra, review. 121 N.J. (Handler, J., dissenting at 582 A.2d concurring); 630 and Frisco, supra, 302-05, J., (Handler, Di 118 N.J. at 571 A.2d 914 Matulewicz, dissenting concurring); and supra, 115 N.J. 206-09, (dissenting 557 A. 2d 1001 concurring); and v. State Gerald, 153-67, (1988) (Handler, J., N.J. A .2d792 dissenting concurring). The Court’s affirmance of this death sentence renders such review critical. IAs stated in Kiett, prosecution “there are indications that [death penalty] cases in arbitrary____ Certainly our State is there is no evidence on which to conclude with confidence that prosecution selection and penalty of death in this cases State is 511-12, consistent and uniform.” 121 N.J. at 582 A .2d 630 J., (Handler, dissenting concurring).

E. sum, In pervasive penalty phase flaws of the trial rob the death sentence of any vestige reliability. Because defining capital critical element murder was identical to the aggravating warranting sentence, factor the death the statute could not and did effectively separate not serve the determi- guilt nation of from the determination that death was the statutory compounded sentence. That defect was appropriate . No sentencing distinct trial. separate absence of and by the penalty proceeding; at the evidence was introduced additional prove guilt to obtain the evidence was used to and the same sentence; the attempt and the court did not to reorient death significance factors. explain fully mitigating the of jury and Further, imposition of fully did understand that the not simply weighing entail a mechanical the death sentence cannot this such suffer of evidence. We cannot under circumstances sentence. death

V. Overall, opinion acknowledges a dozen majority’s almost of Remarkably, course of it finds none errors in the this trial. errors, reversi separately cumulatively, conceded or to be appellate tactic: It follows what has become familiar ble. See, e.g., Hightower, and discount the errors. v. divide State 378, (1990); Koedatich, supra, 120 577 A .2d 99 State v. N.J. another, 225, more 112 548 A .2d 939. It also invokes N.J. rulings as it some trial subtle tactic: characterizes incorrect error, e.g., of “discretionary” rather than as the admission inflammatory post-murder prosecuto of conduct defendant and evidence, 127-128, on such ante at 586 A.2d rial comment impact prejudicial It thus of 150-151. avoids consideration strongly rulings singly cumulatively. either or I dis of such con agree approach particularly with its Court’s rulings cumulatively “improper” those errors clusion that and death did not taint conviction sentence. expressed appellate of of trial

The Court its standard review 45, capital Bey, cases in 112 548 A .2d846 errors State v. N.J. (1988) I): (Bey assessing guilt in either the of a of error Thus, phase impact penalty of a case, we shall continue to determine on the basis

capital reversibility in the entire considers, case, determination context of the qualitative affecting or the whether the error either the verdict clearly capable * * * sentence. The involves “constitutional violations exception [that] by only 254 their nature cast so much on the the trial very that, doubt fairness of as process can considered harmless.” Satterwhite v. a matter of never be Texas, law, they (1988). U.S. S.Ct. L.Ed.2d 284 1792, 112 N.J. at 94-95, 548 A.2d

[Id. 846.] clear determining It is that the Court’s standard reversi governing ble error is no different from that ordinary cases. However, Ibid. even under the Court’s conventional standard review, its conclusion that cumulative error in this is not case incomprehensible. example, reversible is For the Court finds prosecutor’s remarks constituted violations defendant’s privilege against but, self-incrimination “in the context guilt,” entire trial and the abundant evidence of the remarks beyond 121, were “harmless a reasonable doubt.” Ante at 586 A.2d at 147. Because of guilt “evidence defendant's was so persuasive,” “virtually the it impossible” Court believes is that prosecutor’s the counsel, references to defendant’s retention of reprehensible^] “however could have significantly contributed jury’s guilt.” 125, determination of at .2d Ante 586 A at 149. The “any Court claims significantly-prejudicial im pact” prosecutorial from remarks “improper” that were or “that permissible argument” exceeded the bounds of “ame was by liorated the trial court’s curative instructions.” Ante at 159, 586 A .2d at 168. Court, 169, 174,

The at ante 586 A.2d at notes the observa Orecchio, 125, tion in (1954): State v. 16 106 .2d N.J. A justice The sound of administration criminal in our democracy requires just. both the end and the means be The accused, no matter how abhorrent charged seemingly guilt, offense nor how evident is entitled to fair trial a safeguards surrounded the substantive and which have stood for procedural English speaking centuries as of bulwarks in countries. liberty This, course, legal does not mean that the incidental errors, which into the but trial do creep prejudice rights not proceedings of the or accused make the be unfair, may invoked to an otherwise valid upset under these conviction; circumstances it grossly unjust trial____ grant be would to the State its a new people “creep trial”; The errors here did not into they were repeatedly bootlegged into the trial. The errors were not errors,” legal “incidental but generate prose- were calculated to prejudice and enor- leverage, and created unremittent cutorial unfairness to defendant. mous does not suffice meet the

The Court’s standard review requirements process protec of due or high constitutional capital-murder prose attend fairness that tions fundamental rely cannot capital I am cases we cutions. convinced that determining Be tests for reversible error. the conventional crime, dealing capital are which more funda cause we with a through jury the conscience of the mentally addresses community, that is more strict appropriate it is to invoke test only error one whether an affected contribut than that asks verdict, produced “unjust an guilty or whether the error ed to should resort to an enhanced standard that result.” Court jury’s rather than on focuses attention on deliberations to the or the the error contributed verdict result whether II, supra, 113 unjust. N.J. reached Williams (Handler, J., concurring). 2d 1172 A. case,

Thus, prior as in my the Court in this differences with cases, employed has a more reflect the fact that the Court determining reversibility indulgent substantive standard capital-murder permitted appeal direct than should be capital cases but convictions. We should focus not on results produce procedures them. Result- integrity on the for a essentially as error” call oriented tests such “harmless evidence, weighing comparing proper and of quantification of a evidence, simply to determine improper with whether evidence explain jury’s for satisfactorily account and the the former can test, assumption The of the latter. determination without appeals, is well-grounded generality for the of criminal perhaps primarily can as jury’s guilt viewed that the determination be only tangen- and of evidence and the consideration assessment assumption tially the That must be as exercise conscience. only proceeding in capital-murder prosecution, the discarded facts no jury in the is not told that it should find the which thought punishment. ultimate the spongy result majority’s illustrates how and elastic the become, for harmless error can and easily

standard how courts succumb, capital cases, temptation pas- can in to the to defer sively judgments. to trial-level Even under the Court’s more review, required. relaxed standard reversal is It cannot be errors, beyond a concluded reasonable doubt that the each separately by majority, collectively discounted did not con- jury’s guilty tribute to the verdict of and its ultimate death sentence.

VII. outset, I exposes starkly As stated at the this case capital-mur- irredeemable and irremediable in deficiencies our jurisprudence. der by The result reached today Court —the affirmance this death sentence—is not defensible. It is explainable only unacknowledged on the thesis that standards governing capital-murder prosecutions practice in do not max- heighten imize or the protections of a defendant. The stan- dards, case, applied as in any this do not in way surpass those prosecution surround defendant ordinary of an give criminal case. We the lie to the axiom that “death is different.”

Although professes grant capital-murder Court defen- protections statute, dants enhanced under the Constitution and protection. it fails to deliver such Consider this case alone unqualified that an jury capital convicted defendant of murder death; and sentenced him to was allowed to find guilty deserving defendant and penalty by death consid- ering telling truth, whether the defense was while at the same time defendant was opportunity denied real to chal- lenge fully the key prosecution witness; truthfulness of a the entire trial by pervasive prosecutorial was distorted miscon- prosecution duct. The attended numerous conceded near-errors, errors and which in human reason common experience, aggregate surely would jury’s color the totally itself was Finally, the death sentence deliberations. and the capital-murder conviction sen- because the unreliable factors, essentially governed by identical based tence were evidence, virtually the same time. determined the same and Further, inadequate that penalty-phase instructions were so sufficiently meaning of miti- appreciate could not jury factors, and, tellingly, fully did not understand gating more imposition responsible alone be of jury that the would the death sentence. in systemic this flow from the deficiencies our

Errors of kind enacted, applied. capital-murder interpreted, law as and This in exemplifies conflicts inherent case the irreconcilable scheme, professes rely process on the which bifurcated-trial despite guilt; its and qualification prepotency toward death determine, consistency, jury which insists that the same criminality punishment. and objectivity, impartiality, and both capital-murder exposes This the incoherence of prosecution require a prosecutions, incomprehensibly which can be sentence; and, impose in the death qualified death order by jury concomitantly, imposed death to be allow a sentence death-qualified. The decision countenances that is not Court’s guilt effectively predeter- proceeding which the conviction Further, shows, as this case punishment. mines the ultimate mandates a defendant sentenced to although the statute amorphous appeal, nature right death have sentence appellate standard of review can sanction a death beginning end. trial errors from based on a riddled with up illusory hollow and the constitutional stan- points case how process due and the strictures of fundamental fairness dards of prosecutions. capital-murder can become deeper skepticism misgivings To must be added a about those capital In this time of punishment. the worth and wisdom rate, shrinkage, inadequate prose- rising crime crisis—economic resources, judiciary, an understaffed cutorial defense using penalty we rethink value of the death our should criminal-justice arsenal.

258 staggering maintaining capital-murder

The financial cost of a regime negates any practical death-penalty of our benefit stat implementing penalty potentially ute. The cost of the death is crippling justice See, system. e.g., state’s criminal Tabak Lane, Injustice,” Loyola and “The Execution of 23 L.A.L. of 59, (1989)(hereafter Lane”); Rev. 133-38 Spangen “Tabak and Walsh, berg “Capital Imprisonment? and Punishment or Life Considerations,” (1989); Cost Loyola Some 23 45 L.A.L.Rev. of Garey, of A Taking “Comment: The Cost Life: Dollars and of Penalty,” (1985) Sense the Death 18 U. Davis 1221 C. L.Rev. (hereafter Nakell, “Garey”); “The Penalty,” Cost of the Death (1978). 14 Capital Crim.L.Bull. 69 cases demand that courts process guarantees honor due punctiliously. Gardner v. Flor ida, 349, 1197, 430 (1977); U.S. 51 2d 393 S.Ct. L.Ed. v. State I, 61, supra, 93 at capital Williams N.J. 459 A. 2d 641. Because necessarily complex cases are cases, more non-capital they than motions, generate pre-trial more more extended and intense dire, longer trials, voir frequently and more repeated greater support personnel, collateral from court and increased use of investigators experts. singular The problems in a raised capital context, discouraging as well as the effect of the death plea arrangements, sentence on also add to the burden of the penalty death justice on the system. greater criminal necessary presentation hours capital for the trials translate higher court, into prosecution, and defense costs. The exhaus investigation tive research and required penalty phase add further costs. capital Defendants who are tried for murder acquitted but are or receive lesser sentences also invoke the labor-intensive, more expensive capital-prosecution machinery. result, As money less and time are available for crime prevention and the efficient functioning aspects of the other justice system, the criminal including prosecution of other prison criminal LeDuk, causes and “Tough maintenance. See Jails,” N.J. Laws Mean Jammed Philadelphia Inquirer, Dec. Al, (noting 1990 at col. prison effects severe overflow ain to corrections Jersey’s increasing allocations New shrinking budget). in New penalty death relating to the cost

Information enacted the available. When it Jersey to become has started statute, expense an of $16 estimated State capital-murder In penalty. per the death year administer million $100,000 budgeting more than Defender was Jersey Public New pending fifty-two alone for its per capital for trial costs case has supra, 1261. The Public Defender Garey, capital cases. 6,000 spent and exhausted man-hours acknowledged that it case, capital its v. $300,000to defend first State approximately Defender, Jones, Dale Assistant Public Remarks of Ramseur. Broadcast, (FOX Janu- After Murder” WNYW Television “Life “Jones”). 1987, 2, 1991) (hereafter Deputy In Public the ary per expenditure of million defendant $1 estimated an Defender Fight Glading, “Public Defenders Will defense costs. for 8, Times, 1987, A6 March at col. Penalty,” Trenton Death (hereafter “Glading”). partly policy, result of internal That is the Defender whereby adequate representation Public to ensure It attorneys capital to defendant. has been assigns two each $42,000 just for per capital it defendant costs estimated Lane, Currently, at supra, 137. expert witnesses. Tabak and prosecution case the trial level capital the of a the defense of $500,000, cases and the defense of two-dozen costs the State recently prosecuted by approximately $12 State costs most Jones, Office of per supra. Administrative year. million over penalty the death will cost the Courts has estimated that informa- year expenses. available per million in court Other $7 of death row and notes the cost of the maintenance tion Glading, required. supra (reporting supervision increased See $2,000 prisoner on death annually it to house costs more population). Final- general prison than house him in the row person sentencing has one death ly, it been estimated that Jersey million. Tabak $7.3 New would cost about See Lane, supra, (referring supplied by New at 136 information 1989)). (Jan. 19, Jersey Office of the Public Advocate expenses. example, That does not reflect all of the real For Supreme itself has ex- Court consumed untold hours and capital pended deciding enormous effort cases on direct appeal. appeals years Those are onerous. Over the last five virtually has hired extra clerks work Court two law capital appeals; full-time on other law clerks also invest time on capital twenty-seven cases. Over cases have reached the Court undergone Many involving capital final review. matters interlocutory causes have on an been before Court basis. opinions capital The Court’s cases alone cover more than 2,000 pages printed reports in the official of the Court’s deci- sions, twenty-five percent almost of all the Court’s decisional work-product period. developing Research entailed in acceptable proportionality likely review will cost more than $300,000. suggest price

Studies conducted elsewhere also that the See, Ellis, e.g., Penalty: death is exorbitant. Moran & “Death Item,” Luxury A (death Newsday, June 1989 at col. penalty taxpayers would cost York per capital New million $1 trial); Inc., Association, New York State Defenders Capital State, Losses: The Price Penalty Death in New York A Report Backup From Public Center to the Senate Defense Committee, Finance Assembly Ways and Means Commit- tee, (1982) Budget (estimating and the Division 12 at of per capital cost of through $1.8 million defendant from trial Supreme review, initial United States Court three times the cost imprisonment); Gradess, of life “A Lesson Execution Eco- nomics,” Union, 16, Sunday April 1989, Times 1 (noting at col. that the New York pledged oppose State Bar Association has reimposition capital punishment York New because of cost); Drehle, its Von “Bottom Line: Life In Prison One-Sixth 10, Expensive,” Herald, 1988, As July Miami 12A at col. 1 (concluding that it costs million to execute someone in $3.2 Florida, six times imprisonment); the cost of life Magagnini, “Closing Year,” Death Row Would Save State Million a $90 Bee, 28, 1988, 1, (death Sacramento March penalty at col. 1

261 Indiana per year); an million $90 additional costs California Bill 531 Legislature, Impact A Fiscal Statement Re Senate $204,000 per cost more case (1989)(reporting capital cases cases, replacing penalty non-capital and that the death than annually); life-without-parole save Indiana million would $5 Gradess, Pay,” Penalty “The Death Doesn’t Houston Chron- (Texas 13, 1988, 1, 1 million icle, spends col. $2 March 6 at § case); Gradess, Pay,” “Execution Not per capital Does Wash- 28, C5, (hereafter Post, at 37 col. 3 February 1988 ington “Gradess, ”) (noting high penal- death ‘Execution’ costs of Gottlieb, grow); as ty increase death row numbers see also will Penalty Legislature: Thoughts About “The Death in the Some (1989)(here- Money, Myth, Morality,” U.Kan.L.Rev. “Gottlieb”) in 1987 (describing the Kansas Senate’s defeat after capital of cost punishment and 1989 of bills and the role Indeed, debates). overwhelming arguments in the cost penalty nearly bankrupted county. See the death has one Case,” Ricks, Pay Alday Atlanta J. “Seminole Borrows Const., 8, 1988, B6, Aug. (describing col. how the at County, prosecutions capital of three cases drove Seminole debt). Georgia heavily jurisdictions into At least two have complained capital appeal clogging workload their dock- about Gradess, “Execution,” (noting thirty supra than ets. that more percent of the workload of the Eleventh Circuit consists cases); Cox, California,” capital In Action in Nat’l “Inaction 1988, (hereafter L.J., “Cox”) (because it July col. 1 many capital appeals, Supreme the California Court hears so markedly non-capital number of cases it has had to reduce the hear). fact, Supreme In Court can observers of California backlogged penalty that the cases have noted scores of death development jurisprudence have stalled the of California’s Cox, Capital cases have “a real supra. other areas. been necks,” severely limiting albatross around [the Justices’] opinions publish. cases the hear and it can number of Court can Ibid, Barnett, (quoting Prof. Stephen R. Boalt Hall School Law). yet may

The inordinate cost of death divert resources from system. justice process the criminal Due de- other areas of exist, safeguards requir- capital punishment if mands that is public ing expenditure place. of be in substantial funds spend relatively Because we must substantial amounts on few cases, general funds be from pool limited will deflected of commentator, criminal-justice system. in cases One re- marking legislature’s rejection on the Kansas the death penalty, largely because of the tremendous drain of resources suffer, that the would has state noted: “The enormous effort complex jurisprudence [capital] produced in cases have genuine justice systems distortions the criminal states actively pursue capital Gottlieb, punishment.” supra, at 448. may

There criminal-justice also be an intellectual drain on our system attributable to the enormous commitment resources capital-murder has, prosecutions. and efforts to I Court think, anticipate or acknowledge strength failed to gravitational pull capital-murder jurisprudence on the crimi itself, general nal law as well as administration of justice. criminal may legitimately One wonder whether capital-murder jurisprudence emerging that is from this horren dous effort itself is exerting not an on our influence criminal in general. example, law For respect capital cases, despite strong protections initial concerning statements juror qualification, see, entailed in e.g., Biegenwald, State v. 13, 130; II, 106 N.J. 524 A .2d supra, State v. Williams 113 N.J. 393, 1172, 550 A .2d we if outright have shown not ambivalence laxity in succeeding See, Moore, cases. e.g., State v. 122 N.J. 420, (1991); Hunt, 330, A .2d864 supra, State v. 115 N.J. 1259; 558 A .2d Koedatich, supra, 225, State v. 112 N.J. .2dA 939. adopted This Court has now the same standard with respect to effective assistance of counsel applies ordinary as See, cases. Davis, e.g., State v. 116 N.J. 561 A.2d 1082 (1989). however, appear, It does not application its capital in any way cases is extraordinary. Compare State v. Oglesby, 122 (1991); Davis, N.J. 585 A .2d 916 State v.

263 (1990). 594, 577 Savage, 120 N.J. A. 2d 455 supra, with State v. governing principles the same purports to follow The Court noncapital cases. Ironical testimony capital in and expert both authorizing in scrupulous State’s ly, it has tended to be less v. Compare State capital in cases. expert testimony use of Zola, v. 864; Moore, State 420, 112 supra, N.J. 122 585 A .2d Pitts, supra, 116 v. (1988) with State 384, N.J. 548 A.2d 1022 407, Harvey, N.J. 121 State v. 580, .2d 1320. But N.J. 562 A cf. (1990) testimony proper founda 581 A. 2d 483 (expert without Johnson, 263, v. N.J. admitted); 120 State should not be tion by express (1990) (same). The started out .2d 834 Court 576 A prosecutorial misconduct. ing stringent governing standard a Ramseur, 123, 188; supra, 106 State .2d v. N.J. 524 A See State see 13, 130; supra, 106 Williams 524 .2d Biegenwald, v. N.J. A 1172; II, 393, rarely applied supra, 113 N.J. yet .2d it has 550 A Moore, 420, See, supra, N.J. 122 e.g., State v. the standard. Koedatich, 225, supra, 112 v. N.J. 864; 548 State .2d 585 A admissibility of contro governing the A.2d 939. Our standards evidence, prior the use of convictions such as versial evidence, protective less anything if have become other-crimes Moore, See, supra, 122 v. e.g., State capital defendants. Clausell, 298, v. N.J. 420, 864; 121 580 N.J. State 585 .2d A 378, supra, 120 N.J. (1990); 577 Hightower, v. State A .2d 221 816; 547, Pennington, 119 N.J. 99; .2d A. 2d State v. 575 A 439, 575 A .2d 435. The Court’s Long, supra, v. 119 N.J. State protects capital defendant Miranda application of standards cases, see, supra, 121 e.g., Harvey, v. State only in the clearest Johnson, 263, supra, 120 v. N.J. 407, 483; N.J. State 581 A.2d arguably 834, clear cases that .2d fails to do so less 576 A but capital had a offense not been would have been different I, See, supra, 112 45, e.g., Bey v. N.J. 548 A.2d State involved. applicable rule may that the corroboration 846. One believe See, e.g., prosecution. capital diluted in a confessions was 253, Frisco, supra, v. Di 118 N.J. 571 A .2d 914. The State protective invoking the doc seemingly has been less Court capital it would lesser-included offenses in causes than trine of 264 Compare, Rose, supra, 112 e.g. State v. ordinary

be in cases. Grunow, 454, e.g., 1058 with v. N.J. State N.J. 102 A.2d 133, (1986). governing plea-bar 506 A .2d 708 The standards gaining applied aspects capital have been strictness disadvantage defendants. See State v. capital to the causes Davis, Kiett, supra, 121 N.J. 630; State v. 582 A.2d Further, capital-murder N.J. 1082. sentencing A.2d rules, many in polyglot principles has resulted of which ordinary be alien in sentencing proceeding, would an criminal peculiar operate against capi and which can with unfairness a Thus, given tal defendant. defendant is freedom ask death, Hightower, supra, State v. N.J. 378, 99, for 120 577 A .2d may own family implore mercy. but the defendant’s not for Moore, v. 420, supra, State 122 N.J. 585 .2d A 864. Court adopted appellate believing conventional standard of review greater protections by scrupulous that it could secure a more I,Bey supra, see v. application, State N.J. 45, 846; 112 548 A .2d Rose, 454, supra, State v. 1058, but, N.J. 112 548 A .2d if anything, that except respect standard is ineffective to the See, Pitts, e.g., egregious most of supra, State v. kind error. 580, N.J. 116 .2d 562 A 1320. legal

The Court principles governing capital believes are indistinguishable governing causes those ordinary from Davis, supra, cases. State v. 116 N.J. 341, 561 A .2d 1082. Hence, there suppose capital is no reason to that its cases will precedential not constitute authority ordinary criminal cases. See, e.g., O’Donnell, State v. 210, 217-18, 117 N.J. 564 A .2d (1989) 1202 (citing of N.J.S.A. 2C:11- interpretation Ramseur's 3c(4)(c)in its interpretation 2C:44-1a(1) “cruel” N.J.S.A. as factor); Stevens, aggravating an State v. 289, 293, 302, 115 N.J. (1989) .2d (citing 558 A 833 Ramseur governing as admissibility 55); of evidence under Evidence Murphy, Rule State v. 110 20, 34-36, N.J. (1988) .2d assignment 538 A 1235 (upholding judge’s decision prosecutor not dismiss indictment where notify assignment judge possible failed grand juror bias, Breakiron, v. citing Ramseur); State 591, 609, 108 N.J. 614,

265 (1987) (ruling 532 199 that defendant’s mental A.2d disease or rea, mens not, law, may negate defect but does as a matter of unspecified degree manslaughter, citing reduce murder to an Ramseur)-, N.J.Super. 378, 392-93, Murray, State v. 240 573 voir dire (App.Div.1990) (finding adequate A.2d 488 under Biegenwald)-, standards of Ramseur and Slattery, State v. N.J.Super. (trial (App.Div.1990) judge’s 239 571 A.2d 1314 tending jury’s responsibility comment to dilute sense of not Ramseur)-, Jenkins, reversible, State v. citing Rose 234 311, 316-17, N.J.Super. (App.Div.1989) (applying 560 A.2d 1240 admissibility of evidence under Evidence Rule standards of Ramseur)-, Gary, N.J.Super. v. 102, 113-14, State citing 229 (effect (App.Div.1988) pretrial 2d publicity gov 550 A. 1259 Koedatich)-, Fiorilla, Biegenwald State v. erned 226 N.J.Super. 81, 88, (citing Biegen (App.Div.1988) 543 A.2d 958 wald support right determination of defendant’s to waive Davidson, trial); N.J.Super. State v. 1, 9-10, 541 A.2d Ramseur as (App.Div.1988) (citing authority requiring dire)-, Watson, N.J.Super. voir v. more extensive State 354, 362, Ramseur as (App.Div.) (citing 540 A. 2d 875 authority determining misconduct), de prosecutorial effect of certif. nied, denied, 620, 537, 111 N.J. cert. 983, 109 546 488 U.S. A.2d 535, Juinta, S.Ct. (1988); State v. 102 L.Ed.2d 566 224 N.J.Su per. 711, 722-24, Ramseur as (App.Div.) (citing 541 A.2d 284 support for effect of mens rea capacity requisite diminished denied, “recklessness”), 339, N.J. 113 550 A.2d 453 certif. (1988); Washington, N.J.Super. State v. 367, 373-74, 223 538 (determination (App.Div.) 2d 1256 A. of inclusion of offenses of aggravated manslaughter manslaughter jury charge, and citing Ramseur), denied, 612, 111 N.J. 546 A.2d 531 certif. (1988); Garafola, N.J.Super. State v. 657, 665, 226 545 A. 2d (Law Div.1988) (citing Biegenwald 257 respect standard with pretrial publicity). effect of believe, therefore, every

There is reason to judicial that application vacillation reflected in the principles of those capital prosecutions weakening and the protec- subtle of those

266 capital prose will mirrored in tions even for defendants be ordinary process possibly criminal cution causes. That has See, already supra, e.g., Murray, started. State v. 240 N.J.Su (voir 392-93, sufficient); per. at 573 A. 2d 488 dire deemed 534, supra, Slattery, N.J.Super. v. 239 571 1314 State A.2d reversible); (improper jury’s responsibility instruction on not 113-14, supra, N.J.Super. v. 229 Gary, State at 550 A.2d 1259 (pretrial publicity prejudicial); Watson, not supra, State v. 224 367, N.J.Super. (prosecutorial 540 at A .2d 875 misconduct not prejudicial); Garafola, supra, v. N.J.Super. State 226 publicity 2d (pretrial prejudicial). 545 A. 257 not Despite the relate to concerns that the serious defects enacted, capital-murder applied, interpreted, statute as and despite convincing empirical strong evidence intuition tell us penalty rationally death cannot be invoked fairly imposed, despite compelling or countervailing considera- public policy, tions this Court validates law. It resists the conclusion something fundamentally awry that there is capital-murder jurisprudence, ignores our it the emergence of disquieting capital punishment really truth that cannot be society. made work in civilized It chooses to live with a case, case, this in which a criminal arbitrarily defendant is then, decision, sentenced to any die. Court’s more so than preceded it, brings that has unmanageable home the conflicts capital-murder that inhere in prosecutions the administration the deepening of our capital-murder jurispru- incoherence dence. society

I strongly express believe is through entitled its outrage institutions the felt when the lives of innocent persons callously, senselessly are taken cruelly. See State v. Ramseur, (Handler, supra, J., .2d N.J. at A dissenting). escape None of us can humanity; our common we are all violated and taking reduced of an innocent victim’s life. Yet we can punishment draw no in satisfaction does values, not conform to law. Our constitutional we hope, integrity us, must retain and do not allow no matter how outraged, unprincipled to exact retribution. The Court’s deci- today one, sion hope. dashes that No not even the most ardent advocate of the death penalty, rejoice should in unprincipled taking of a life. Our constitution is for all of us: if it fails the reprehensible, most it fails the rest. The death sentence this case deafening sounds with finality defendant, for the its but discordant everyone. Donne, reverberations resound for John XVII, gives Devotions voice to “[A]ny this truth: man’s me, death diminishes I mankind; because am involved therefore never send tolls; to know for whom the bell it tolls for thee.”

For as to Guilt Phase —Chief Justice WILENTZ affirmance CLIFFORD, POLLOCK, and Justices O’HERN, GARIBALDI and STEIN—6

For reversal as to Guilt Phase—Justice HANDLER—1 For Penalty as to Phase —Chief Justice affirmance CLIFFORD, POLLOCK, WILENTZ and Justices GARIBALDI and STEIN—5

For reversal as Penalty Phase—Justices HANDLER and O’HERN—2 notes further cross-ex- calling any persons amination and from four as rebuttal concerning any witnesses subject covered the interview notes. We find no error in the trial court’s determination. The appropriate choice of sanctions discovery-rule violations is Toro, left to the v. broad discretion of trial State court. supra, 229 N.J.Super. 223, Moreover, 551 A.2d 170. motion for mistrial “is addressed to the sound discretion of the court; and the denial of the only motion is reviewable for an Winter, v. abuse of State 96 N.J. discretion.” 477 Witte, (1984) A .2d State v. (citing 598, 611, 323 13 N.J. A.2d (1953)). circumstances, Under these where the State’s discovery-rule apparent violation prejudice caused no to defen dant, grant of a mistrial would have been manifestly inappropriate. view, In our the sanction imposed proper awas response and measured to the nondisclosure of the interview notes. M. Dilution of State’s Burden Proof Defendant contends that paragraph final trial court’s instruction jury’s intimated that the responsi bility arriving a.t a truth,” verdict was to determine “the

Case Details

Case Name: State v. Marshall

Court Name: Supreme Court of New Jersey

Date Published: Jan 24, 1991

Citation: 586 A.2d 85

Court Abbreviation: N.J.