State v. MartiniState v. Martini
Lead Opinion
delivered the opinion of the Court.
Dеfendant John Martini, Sr., appeals from the denial of his third petition for post-conviction relief. He claims that the trial court erred in instructing the penalty phase jury that, to the extent possible, it should attempt to “reach agreement” on the existence of the mitigating factors, and that his appellate counsel was ineffective for failing to raise that issue on direct appeal. We affirm the judgment denying relief.
I.
Defendant was convicted of the 1989 kidnaрping and murder of Irving Flax. The facts of this case are set forth in detail in this Court’s decision in State v. Martini, 131 N.J. 176, 191-207,
The jury found defendant guilty. During the penalty phase, defendant urged the jury to find the following mitigating factors: (1) the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution (e.g., mid-life dysthymia/crisis factor), N.J.S.A. 2C:11-3e(5)(a); (2) the advanced age of defendant, N.J.S.A 2C:11-3c(5)(c); (3) defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution (e.g., drug addiction factor), N.J.S.A 2C:11-3e(5)(d); and (4)
This Court affirmed defendant’s conviction and death sentence on direct appeal, Martini I, supra, 131 N.J. at 324,
On October 30, 1995, over defendant’s objection, the Public Defender applied to the Law Divisiоn for permission to pursue post-conviction relief, or for an evidentiary hearing on defendant’s competency, and for a stay of execution pending either proceeding. The trial court granted the stay of execution pending the resolution of the petition, appointed independent counsel to represent defendant, and appointed a psychiatrist to examine defendant to determine his competence to waive post-conviction proceedings. Following a competency hearing, the trial court found that defendant was competent to waive post-conviction proceedings and that the Public Defender could not seek such relief on defendant’s behalf over his objection. The stay of execution was continued pending review by this Court.
On June 28, 1996, this Court reversed and remanded for a hearing. State v. Martini, 144 N.J. 603, 618,
Defendant filed a second post-conviction relief petition raising a Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,
Defendant filed this third post-conviction relief petition in November 2004, asserting (1) that the trial court denied him his rights to a fair trial, to due process, and not to be subject to cruel and unusual punishment by instructing the penalty phase jury that it should attempt to reach agreement in finding mitigating factors and thereby suggesting to the jury that unanimity regarding the existence of mitigating
Following argument on February 8, 2005, the trial court found that defendant’s petition was not time-barred by the five-year period of Rule 3:22-12 because defendant raised a constitutional claim. After discussing the merits of the petition, the trial court reviewed the charge in its entirety and concluded that the jury understood that it did not have to be unanimous in finding any mitigating factor and that appellate counsel was not ineffective for failing to raise that issue. The court also found that because defendant’s arguments could have been raised in a prior proceeding, the petition should be dismissed.
Defendant filed his notice of appeal with this Court on March 22, 2005. On December 12, 2005, the State moved for an order summarily affirming the denial of defendant’s third petition. We hereby deny the State’s motion and address defendant’s arguments.
II.
A.
As he did before the trial court, dеfendant argues that he should be granted a new penalty phase trial because the trial court incorrectly instructed the jurors that they should try to agree unanimously on the existence of mitigating factors, thereby leading a reasonable juror to believe that the preferred verdict for finding a mitigating factor was a unanimous one. Defendant contends that erroneous statement of law contributed to the unanimous rejection of two mitigating factors and tainted the ultimate verdict. Defendant acknowledges that the jurors who deliberated in his penalty phase trial knew they could disagree on the mitigating factors and did so on two of the four. But he contends that the “unanimity is better” instruction violated his federal and state rights to due process and to a fair trial and implicated the prohibition against cruel and unusual punishment because it expressed a preferred verdict on the mitigating factors. He urges that because the “individuаlized consideration of mitigating evidence ... is at the core of the constitutional protections given a capital defendant,” the “unanimity is better” instruction was erroneous. Defendant argues that the Court’s holding in State v. Hunt, 115 N.J. 330, 383,
Defendant challenges the trial court’s ruling that even if the instruction was incorrect, it was as “tolerable” as the jury instruсtion in State v. Loftin, 146 N.J. 295,
Alternatively, defendant contends that if Loftin and Cooper are upheld, this case is different because the trial court also incorrectly instructed jurors that unanimity was
Defendant also urges that the failure of his appellate counsel to raise the jury-charge issue on direct appeal constitutes ineffective assistance of counsel and a denial of due process. Finally, defendant argues that the trial court erred in dismissing his petition as procedurally barred by Rule 3:22-4 for failure to raise the claim in a prior proceeding. He asserts that he meets two of the statutory exceptions to that bar because he raises constitutional claims and an error which, if not corrected, would result in a fundamental injustice.
B.
The State counters that “neither the federal nor state constitution is violated by a suggestion that deliberating jurors try to reach unanimity on mitigating factors so long as the jurors understand that unanimity is a goal and not a mandate.” The State further asserts that the verdict sheet and the trial court correctly instructed the jury on the lack of a unanimity requirement for finding any mitigating factor.
The State argues that Mills v. Maryland, 486 U.S. 367, 373-75, 108 S.Ct. 1860, 1865-66,
Additionally, the State argues that defendant’s claim that his case is distinguishable from Loftin and Cooper is without merit because when the trial court incorrectly instructed the jury that it had to find the mitigating factors unanimously, defense counsel raised an objection and the trial court corrected the misstatement. The State adds that because the jury charge on the mitigating factors was not improper, defendant’s appellate counsel could not have been ineffective for failing to raise it as error. The State also asserts that defendant’s petition is procedurally barred by Rule 3:22-4 because “the purported constitutiоnal error was manifest in the record.”
III.
We cannot “overstate the importance of [correct] jury instructions.” State v. Reddish, 181 N.J. 553, 613,
In determining the propriety of a jury charge, we will “examine the charge as a whole and will attempt to determine whether the challenged language was prejudicial.” Loftin, supra, 146 N.J. at 374,
With those principles in mind, we turn to defendant’s assertion that the trial court committed reversible error by instructing the jury that it should attempt to reach unanimity in finding mitigating factors. Specifically, the trial court instructed the jury that
[t]he evidence relating to mitigating factors should be fully discussed by the jury. To the extent reasonably possible you should, by reason, attempt to reach agreement on the question whether a particular mitigating factor does or does not exist. However, the law does not require that you agree unanimously with respect to the finding of a mitigating factor.
Furthermore each juror must individually determine whether or not each mitigating factor exists, and each juror must individually decide whether the aggravating factor or factors unanimously found outweigh beyond a reasonable doubt the mitigating factor or factors that the jurors or a single juror has found to be present.
If after a full discussion you find that you are not unanimous on the existence or non existence of a mitigating factor, you’ll record your last vote on that question on the verdict form in boxes, the number of yes or no votes.
However, remember that whether a mitigating factor exists is not decided by a majority vote. Even if one juror finds a mitigating factor which in that juror’s mind is not outweighed by a reasonable doubt by the aggravating factor or factors, then the jury may not sentence the defendant to death.
[ (Emphasis added).]
“[E]ach juror must individually determine the existence of mitigating factors.” Bey (II), supra, 112 N.J. at 161,
We addressed similar arguments in Loftin, supra, 146 N.J. at 375-76,
In Cooper, supra, the defendant objected to a charge essentially identical to the one in this case. 151 N.J. at 398,
In the present case, just as in Loftin and Cooper, despite stating that the jury should attempt to achieve unanimity if possible, the trial court on several occasions instructed that unanimity was not required for finding mitigating factors. The court stated that unanimity is not required on mitigating factors twice, that the finding of a mitigating factor is an individual determination five times, and that “whether a mitigating factor exists is not decided by a majority vote” once. Moreover, it is not disputed that the jury reached a non-unanimous verdict on twо of the four mitigating factors submitted.
Defendant argues that his case is distinguishable from Loftin and Cooper because in this case, the trial court also mistakenly instructed the jury it must be unanimous in finding any mitigating factor. In explaining the verdict sheet, the trial court told the jury that
if you turn to the verdict sheet as I indicated, the first function that you must determine or that you’ll perform is you will discuss the evidence and determine whether one or more of the aggravating factors set forth in number one exist beyond a reasonable doubt.
You’ll record the number of no and yes votes. And, as it indicates, and os I’ve told you, if you do not find the existence of any mitigating factor beyond a reasonable doubt, which must be a unanimous finding, then you do not go further.
If you find one or more of the aggravating factors in number one, either (a) or (b) or both, beyond a reasonable doubt, then you will go on to consider the mitigating factors.
[ (Emphasis added).]
Defense counsel objected to that portion of the charge, noting that the court mistakenly said mitigating factor instead of aggravating factor. Without hesitation, the trial court corrected the misstatement, explaining:
I’m sorry. I think I’ve made it clear to this jury that you must find the aggravating factors present unanimously beyond a reasonable doubt. Mitigating factor [sic] doesn’t require the burden of proof. It doesn’t require beyond a reasonable doubt. Requires only one juror to find a mitigating factor and you’re bound to weigh that and you have to weigh it.
All right. Clear enough?
Defense counsel replied “Yes, your Honor.”
Thus, defense counsel properly brought to the court’s attentiоn a misstatement in the charge, and the trial court immediately corrected it. In short, we reject defendant’s attempt to distinguish Loftin and
IV.
Defendant argues that his appellate counsel was ineffective for failing to challenge the jury instruction and that this denied him due process. Because we find the jury charge, when viewed in its entirety, fairly conveyed to the jury that unanimity was not required for a juror to find a mitigating fаctor, appellate counsel could not have been ineffective for failing to raise that claim. See State v. Worlock, 117 N.J. 596, 625,
V.
We also must address defendant’s contention that the trial court erred in dismissing his petition based on Rule 3:22-4 because he failed to raise the issues on direct appeal. Defendant contends that he met two of the statutory exceptions for relief: denial of his jury-charge claim would result in a fundamental injustice, R. 3:22-4(b), and he asserted constitutional claims, namely a jury-charge error and ineffective assistance of counsel, R. 3:22-4(e).
The State urges that we affirm the dismissal of defendant’s petition because defendant’s jury-charge argument could have been raised in a prior proceeding and is therefore barred under Rule 3:22-4. That Rule provides that
[a]ny ground for relief not raised in a prior proceeding ... is barred from assertion in a proceeding ... unless the court ... finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
[Ibid.]
Our procedural rules seek to achieve “the important state goals of finality and judicial economy.” State v. Preciose, 129 N.J. 451, 474,
Although there is no bright-line test to dеtermine when a court should apply the fundamental-injustice exception, we have declared that
[i]n defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. “Fundamental injustice” will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a dеtermination of guilt or otherwise “wrought a miscarriage of justice for the individual defendant.” The standard goes beyond constitutional infringements to any circumstances deemed “urgust.” Although a petitioner would not have to prove that the issue of concern cost him the ease, “to establish injustice there should at least be some showing that * * * [the alleged violation] played a role in the determination of guilt. * * * To conclude otherwise would exalt form over substancе.”
[State v. Mitchell, 126 N.J. 565, 587,601 A.2d 198 (1992) (alterations in original) (citations omitted).]
Here, defendant argues that the jury instructions influenced the jurors to reach unanimous agreement on the mitigating factors and that the charge potentially tainted the ultimate verdict. Although a review of the entire charge causes us to disagree with defendant’s assertions, defеndant has pointed to a flaw in our model jury charge that must be corrected. Under these circumstances, we find “that enforcement of the bar [against considering issues that were not raised in a prior proceeding] would result in fundamental injustice.” Rule 3:22-4. Therefore, we address the merits of defendant’s claim and do not apply the procedural bar of the Rule.
VI.
By this opinion, we are directing the Trial Judges Committee on Capital Causes to eliminate that portion of the charge on mitigating factors that instructs the jury to “attempt to reach agreement on the question whether a particular mitigating factor does or does not exist.” Trial Judges Committee on Capital Causes, supra, at J-45. Until then, trial courts are directed to exclude that reference in their jury charges.
VII.
The judgment of the trial court denying defendant’s post-conviction relief petition is affirmed.
Notes
The State asserts that defendant's petition is time-barred under Rule 3:22-12. Given the Court's disposition affirming on the merits, we need not address this alternative argument to resolve the appeal.
Dissenting Opinion
Dissenting.
I agree with the majority that the jury instruction given in this case was fundamentally flawed insofar as it stated that:
To the extent reasonably possible you should, by reason, attempt to reach agreement on the question whether a particular mitigating factor does or does not exist.
That language that urges consensus on mitigating factors is plainly wrong and, as the majority has properly concluded, should be eliminated from the charge and should not be used by trial judges in death penalty cases. I part company from my colleagues in connection with their concomitant conclusion that the improper and misleading instruction did not enure to defendant’s detriment.
In reaching its determination, the majority holds, as it did in State v. Loftin, 146 N.J. 295,
Indeed, agreement is not preferred, and no such preference should be conveyed to the jury. The deliberative process in a death penalty case requires an individual finding оn the mitigating factors and an individual weighing of those mitigating factors against the aggravating factors. State v. Bey (II), 112 N.J. 123, 161,
Importantly, the jury’s vote of twelve to zero (12-0) on two of the fаctors and six to six (6-6) on the other two factors underscores the possibility, not present in Lofbin or Cooper, that the jurors did, in fact, feel compelled to try to agree. Of the thirty-one mitigating factors in Lofbin, seven were found by only one juror and five by only two jurors. Similarly, in Cooper, one or two jurors were not deterred from voting against their peers on the mitigating factors; four mitigating factors were found by two jurors and two by three jurors. When compared with Lofbin and Cooper, the significance of the votes in this case is not that there werе two non-unanimous votes, as the majority concludes, but that the votes were either unanimous or evenly split, suggesting the real possibility that the jurors were under pressure to agree. The monolithic and bilithic votes in this case thus do not give me the confidence that the Court had in Lofbin and Cooper that individual jurors understood that agreement is no more favored than isolation where mitigating factors are concerned.
The enhanced reliability required for a death sentence mandatеs that there “be little chance that the jury as a whole, or even an individual juror, is confused about the process.” State v. Koskovich, 168 N.J. 448, 526,
For affirmance—Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO—6.
For reversal—Justice LONG—1.