STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. VICTOR MCCRARY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.
Supreme Court of New Jersey
Argued February 22, 1984—Decided June 26, 1984.
96 N.J. 132
At oral argument, both parties recognized that the then-pending decision in Poswiatowski, supra, might require recomputation of the award on the stacking issue. On remand, the compensation court may recompute the award in light of Poswiatowski.
The judgment below is otherwise affirmed.
For affirmance—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, O‘HERN and GARIBALDI—6.
For reversal—None.
Paul M. Klein, Assistant Deputy Public Defender, argued the cause for respondent and cross-appellant (Joseph H. Rodriguez, Public Defender, attorney; Paul M. Klein, Ollis Douglas, Jr., and B. Vincent Carlesimo, Assistant Deputies Public Defender, on the briefs).
Debra L. Stone, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Debra L. Stone and Catherine A. Foddai, Deputy Attorney General, of counsel and on the brief).
The opinion of the Court was delivered by
CLIFFORD, J.
Under the New Jersey Code of Criminal Justice (Code), a defendant convicted of purposeful or knowing murder will be sentenced to death if one or more statutorily-specified aggravating factors exist and are not outweighed by one or more mitigating factors.
I
Defendant, Victor McCrary, was indicted for purposeful or knowing murder,
Statements taken from witnesses disclosed that on January 2, 1983, Lavon Jackson, Barbara Frye, and the deceased, Willie Jones, were present with others at Harold Glass‘s East Orange apartment. At approximately 8:00 p.m. the defendant, Victor McCrary, and an unidentified companion arrived at the apartment. An altercation ensued between Glass and defendant that ended with McCrary leaving the apartment.
At approximately 11:00 p.m. there was a knock at the apartment door. Willie Jones and a man described as “Poochie” went to answer it. Ignoring Glass‘s warning, Willie Jones opened the door, whereupon he was killed by a bullet fired into his forehead at point-blank range. A second bullet struck Glass in the abdomen. Two other bullets were fired, one into the molding of the apartment door and the other into a wall near a bathroom to which Barbara Frye had fled.
Through the use of photographic arrays, the witnesses identified McCrary as the gunman. Although all the witnesses agreed that when Jones opened the door, McCrary opened fire immediately, the report of the incident furnished by the East Orange police contained Glass‘s statement that before the shooting started, McCrary said, “This is a hold up.” In a subsequent statement given to the police Glass failed to make any mention of the alleged attempted robbery.
Pursuant to the procedure set forth in
In the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim;
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The offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery * * *
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N.J.S.A. 2C:11-3c(4)(b) ,(g) .]
Defendant moved to strike these aggravating factors as “totally unsupported by the evidence.” In response the State argued that prosecutorial charging discretion foreclosed the trial court from exercising jurisdiction.
The trial court rejected this contention, ruling that it could appropriately exercise jurisdiction to review the sufficiency of aggravating factors that the State intends to prove at the sentencing proceeding. It ordered a hearing as to the sufficiency of the proof of aggravating factors, indicating that the parties could introduce testimony at the hearing if they were unable to stipulate what that testimony would reveal. The standard would be the same as that applicable to motions to dismiss indictments—that is, no aggravating factor would be dismissed unless evidence were clearly lacking to support the factor challenged. The court ruled further that the State would bear the burden of submitting proof that evidence to support an aggravating factor was not clearly lacking. The defense could conduct limited cross-examination directed at determining whether the State had submitted prima facie proof of those aggravating factors of which the prosecution had given notice. Finally, the court ruled that credibility would not be an issue in cross-examination, and that hearsay would be admissible.
The Appellate Division granted the State‘s motion for leave to appeal from the order for a hearing and defendant‘s cross-motion for leave to appeal from so much of the order as permitted the introduction of hearsay evidence. We certified the cause directly, 95 N.J. 228 (1983), and, subject to the
II
In opposing the hearing ordered by the trial court the State contends that the court “lacks the power” to make a pretrial determination of the sort envisioned by the order; and that even if the court has the power to review a prosecutor‘s decision to notify a defendant of his intention to prove an aggravating factor, nevertheless “that review should be limited to a consideration of the information upon which the prosecutor acted and a determination of whether the prosecutor‘s decision constitutes a gross and patent abuse of his discretion.”
The prosecutor‘s obligation to give independent notice of any aggravating factors he intends to prove at a capital sentencing proceeding arises “at such time as he has knowledge of the existence” of those factors.
As to the intent of the notice provisions of the Code, the legislative history is uninformative beyond disclosing a purpose of avoiding delays and furnishing a defendant adequate time within which to prepare a defense. Because the legislation is silent as to a hearing, the State contends that the judiciary lacks jurisdiction to review the State‘s allegation of aggravating factors until after the sentencing phase of a capital case—that is, the traditional after-the-event appellate review. To permit a pretrial evidentiary hearing, argues the State, amounts to a breach of separation of powers.
In this case we harbor no doubts about our jurisdiction to address the issues presented, nor do we hesitate to exercise that jurisdiction. Under the New Jersey Constitution “judicial power” is vested in this Court and all inferior courts.
When a criminal proceeding takes on the character of a capital case, the exercise of such authority is not only tenable, it is absolutely imperative to ensure fundamental fairness to a defendant. There is a qualitative distinction between death and imprisonment. “Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a
The State urges that the failure of the Legislature or this Court to provide expressly for pretrial review of aggravating factors is a sure indicator of the absence of our power to fashion such a procedure. But as pointed out in State v. Carter, supra, 64 N.J. at 392, “[t]he fact that the legislature has acted to provide a remedy does not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular case.” Equally clearly, the fact that the Legislature has not spoken at all to the subject of pretrial review cannot shut the courts out of the field. This is particularly so given the function and significance of the prosecutor‘s notice of an aggravating factor: by such notice alone a homicide case is transformed into a capital proceeding. The Code contains no requirement for a probable cause determination of whether a homicide case should proceed as a capital cause. The prosecutor‘s notice triggers both the death qualification of the jury and the separate sentencing phase of
Because of these portentous consequences the prosecutor cannot be entirely insulated in the decision to allege aggravating factors. The fact that the presence of an aggravating factor is the sole determinant of whether the case shall proceed as a capital trial is enough to invoke the judicial process. Some judicial oversight is required to ensure at the very least that the proceeding contemplated by the prosecutor‘s notice not be set in motion without justifiable cause.
III
The procedure fashioned by the trial court for judicial oversight of aggravating factors was patterned after the familiar “Wade” hearings (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). See
It is in this regard that we modify the order from which the appeal is taken. Remaining respectful of and sensitive to a prosecutor‘s charging discretion, we seek to fetter it only to the extent necessary to protect a defendant‘s rights. Historically, a prosecutor has been vested with broad discretionary powers to be exercised in the conscientious discharge of the manifold responsibilities of his office. See State v. Laws, 51 N.J. 494, 510, cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968); State v. LeVien, 44 N.J. 323, 326-27 (1965); cf. State v. Winne, 12 N.J. 152, 174 (1953) (prosecutor has obligation to exercise discretion in good faith). The effect of this broad grant of power has been to accord a presumption of validity to the conduct of the prosecutor. See In re Investigation Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516 (1974); State v. Laws, supra, 51 N.J. 494.
Our goal is to effect only a minimal intrusion into this area of prosecutorial discretion. The amicus, Attorney General, offers a workable solution to achieving that result by analogy to the standard for dismissal of indictments: the presumption in favor of the charges set forth in an indictment requires a defendant who challenges its sufficiency to demonstrate that evidence is clearly lacking to support the charge. See State v. Weleck, 10 N.J. 355, 364 (1952); State v. Ferrante, 111 N.J.Super. 299, 304 (App.Div.1970); State v. Donovan, 129 N.J.L. 478, 483 (Sup.Ct. 1943).
That standard accurately strikes the balance in the present context between prosecutorial discretion and fairness to the
We are unpersuaded by the State‘s contention that a scheme for pretrial review of aggravating factors forces the State to prove its case three times: at a pretrial hearing, at the trial itself, and at the sentencing procedure required under
Moreover, the State is free, under our decision today, to reassert a dismissed aggravating factor—that is, the striking of aggravating factors is to be without prejudice to a later application for their introduction should additional supporting evidence come to light. Of course, if that should occur during the guilt phase of the trial, the newly-discovered evidence tending to support an aggravating factor would be inadmissible as an aggravating factor, although conceivably it would be admissible on some other basis. If a new aggravating factor, or evidence reinforcing a previously-stricken aggravating factor, surfaces during the guilt phase, or even immediately thereafter but before commencement of the sentencing phase, then upon its discovery the prosecutor would be required to give notice to
We note with approval the limited nature of review that California courts have accepted in their capital penalty statutory scheme. In Ghent v. Superior Court of Santa Clara County, 90 Cal.App.3d 944, 956, 153 Cal.Rptr. 720, 727-28 (Ct.App.1979), the court allowed pretrial review of evidence supporting “special circumstances” that justify the imposition of the death penalty. California‘s statute,
We are aware that our decision today may be construed as encouraging frivolous pretrial motions to dismiss aggravating factors. At this point we simply stress that such motions should be made only when the allegations of aggravating factors are plainly without support. It is hardly necessary to observe that we discourage the assertion of groundless motions made in hopes of discrediting well-founded allegations of aggravating factors.
IV
Finally, we address defendant‘s cross-appeal directed to hearsay evidence at a pretrial review of the aggravating fac-
Once again we turn for guidance to the procedures employed in challenges to the sufficiency of an indictment. For over a century the rule recognized as controlling the review powers of courts over indictments when a question of competence of the evidence arises has been that stated in State v. Dayton, 23 N.J.L. 49, 57 (Sup.Ct.1850):
[C]onceding that the proposition is fully established, that there was not legal and competent evidence before the grand jury, does that afford the subject matter to sustain either a motion to quash or a plea in abatement? We are clearly of the opinion, that in this state, at least, it does not.
This rule is consistent with United States Supreme Court decisions that recognize that hearsay and other informal proofs are permissible in determining issues that implicate important rights. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397, 402-03, reh. denied, 351 U.S. 904, 76 S.Ct. 692, 100 L.Ed. 1440 (1956) (an indictment may be returned on basis of hearsay); see also Gerstein v. Pugh, 420 U.S. 103, 120-21, 95 S.Ct. 854, 866-67, 43 L.Ed.2d 54, 69 (1975) (hearsay admissible at probable cause hearings); United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 994, 39 L.Ed.2d 242, 252 (1974) (search warrant may be obtained on basis of hearsay).
Our conclusion to allow hearsay evidence in support of any aggravating factor squares with the notion that the proof of facts is ultimately preserved for trial. See State v. Ferrante, supra, 111 N.J.Super. at 305-06. The admission of hearsay at a pretrial proceeding directed to determining whether there is a minimal level of evidence available to support the prosecutor‘s allegations is likewise consistent with the deference to the prosecutorial charging function that we are determined to preserve.
In sum, we hold that the trial court may review a prosecutor‘s allegation of the aggravating factors enumerated in
As modified, the order appealed from is affirmed. The cause is remanded to the trial court for further proceedings consistent with this opinion.
HANDLER, J., concurring.
I concur in the judgment of the Court. I am satisfied generally to resolve the issue in this case under the standards expressed in the Court‘s opinion. However, I entertain some reservations as to the ostensible looseness of the evidential requirements imposed by the Court on the prosecutor. The standards articulated by the Court assuredly should not be understood to permit or encourage prosecutors to convert homicide cases into capital prosecutions without a sound evidential basis. With respect to necessary judicial oversight, I have a similar concern over our adoption by analogy of the standard governing proceedings to dismiss indictments. While that standard is generally serviceable in this context, it should be understood that judicial review of prosecutorial decisions in this area should give explicit recognition to the inherent limitations upon prosecutorial discretion, since the exercise of that discretion
I express my position summarily and separately because neither the Court nor any of its members has yet considered the constitutionality of the capital provisions of the New Jersey Code of Criminal Justice (Code). There are several capital cases pending both at the trial level and on appeal before us—and their numbers are growing—that will present directly a plethora of issues implicating the constitutional validity of the capital provisions of the Code, as well as countless legal, statutory and procedural questions touching the validity, interpretation and application of these new criminal laws. I concede that it makes sense for the Court to adjudicate and resolve the question in this case at this time. Our interlocutory decision will at the very least settle for the moment the question of the appropriate procedural handling of an important threshold aspect of homicide prosecutions—whether the prosecution shall proceed as a capital case that can eventuate in the imposition of the death penalty. To this extent our decision lends greater certainty and—dare we hope?—uniformity and consistency in the trial of capital causes and, perhaps, will obviate consideration of this issue in later appeals.
Still, our interim disposition of this issue in a way puts the cart ahead of the horse. It should be very clear, therefore, that our decision on this narrow pretrial question, rendered at an
O‘HERN, Justice, dissenting.
I disagree that we should mandate pretrial review of the validity of the aggravating factors furnished under
Until the Supreme Court‘s decision in Furman v. Georgia in 1972, the capital sentencing procedures in most states delegated to judges and juries plenary authority to decide when a death sentence should be imposed. The sentencer was given “practically untrammeled discretion to let an accused live or insist that he die.” Furman v. Georgia, 408 U.S. 238, 248, 92 S.Ct. 2726, 2731, 33 L.Ed.2d 346, 355 (1972) (Douglas, J., concurring). In New Jersey, we believed that such standards were not clearly definable. State v. Johnson, 34 N.J. 212, 230 (1961).
In Furman the Court held that the system of capital punishment then in existence in this country was incompatible with the eighth and fourteenth amendments. The teaching of Furman was that a state may not leave the decision whether a defendant lives or dies to the unfettered discretion of the jury, since such a scheme inevitably results in death sentences that are “wantonly and * * * freakishly imposed,” and “are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” 408 U.S. at 309-10, 92 S.Ct. at 2762-63, 33 L.Ed.2d at 390 (Stewart, J., concurring).
Four years after Furman, the Court upheld the capital sentencing statutes of Texas, Florida, and Georgia, concluding that those statutes contained safeguards that promised to eliminate the constitutional defects found in Furman. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Court‘s conclusion was based on the premise that the statutes ensured that sentencers would be “given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Gregg v. Georgia, supra, 428 U.S. at 192, 96 S.Ct. at 2934, 49 L.Ed.2d at 885 (opinion of Stewart, Powell, and Stevens, JJ.). Georgia‘s scheme included two features that Justice Stewart described in his general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia had a bifurcated procedure, id. at 190-92, 96 S.Ct. at 2933-34, 49 L.Ed.2d at 884-85, and its statute also required “the further safeguard of meaningful appellate review” of every death sentence. Id. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 886-87.
In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Court explained that no specific set of procedures has been set down to “satisfy the concerns of Furman.” Id. at —, 103 S.Ct. at 2741, 77 L.Ed.2d at 248. What it found significant was that the “Georgia scheme provide[d] for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.”1 Id. at —, 103 S.Ct. at 2744, 77 L.Ed.2d at 251.
In the terms outlined in Zant, supra, — U.S. at —, 103 S.Ct. at 2744, 77 L.Ed.2d at 251:
- The “categorized narrowing” is provided by limiting the capital punishment to murders specified in
N.J.S.A. 2C:11-3 and by requiring the presence of at least one of the aggravating factors set forth in2C:11-3(c)(4) ; and - The “individualized determination” is provided by requiring that every person convicted in the categories of murder as defined in
2C:11-3 should be sentenced by the jury.
The language of the statute is stark in its simplicity. Every person so convicted shall be sentenced by a jury in accordance with the defined standards of aggravating and mitigating factors.3
Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973, 987-90 (1978) (plurality opinion); Roberts v. Louisiana, 431 U.S. 633, 636-37, 97 S.Ct. 1993, 1995-96, 52 L.Ed.2d 637, 641-42 (1977) (per curiam); Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944, 960-61 (1976) (plurality opinion); Proffitt v. Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960, 2966-67, 49 L.Ed.2d 913, 922 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U.S. 153, 197-98, 96 S.Ct. 2909, 2936-37, 49 L.Ed.2d 859, 888 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
I reach that conclusion because I know of no way in which we can factor the result of such pretrial decisions into our overall duty to review the proportionality of capital sentences. I recognize that the Supreme Court has recently held that comparative proportionality review by an appellate court is not constitutionally required in every death penalty case. Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). I also realize that pending legislation, S. 1479, 201st Leg. (1984), seeks to do away with the statutory proportionality review. Still we must deal with the statute as we find it.
Experience under our state‘s prior death penalty law suggested that judges had no special ability to measure that common conscience of society that must be invoked in these cases. Chief Justice Weintraub sharply distinguished between the power of court and prosecutor in this regard:
[W]e have never held a trial court may take the penalty issue from the jury on the thesis that the evidence would not support a death sentence * * *.
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the death phase may be conducted by the judge sitting alone if the defendant and the prosecutor so agree.
Because the death penalty involves a moral judgment upon a consideration of the evidence, free of legalisms and unbridled with respect to the values which may be brought to bear, it may readily be said that the judgment of 12 laymen in any given case is as good as the judgment of an equal number of men schooled in the law. [State v. Conyers, 58 N.J. 123, 147-48 (1971) (Court may impose life sentence after appeal when prosecutor recommends it rather than retrial).]
Granted that jurors’ discretion is no longer unbridled, it remains true that the judgment involved does not lend itself to better analysis by judge than jury.
Our Legislature has sought to create a death penalty law that comports with federal constitutional precedent. It has narrowed discretion. It has provided that every person convicted of the categories of murder defined in
HANDLER, J., concurring in the result.
For modification, affirmance and remandment—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, POLLACK and GARIBALDI—6.
Dissenting—Justice O‘HERN—1.
jury. The jury and the jury alone makes this finding.” [State v. Laws, supra, 51 N.J. at 553 (Francis, J., dissenting).]
Notes
I joined in that directive. But the more exhaustive study of the problem made in this case convinces me that we were wrong and that the directive was an encroachment on the independent power of the Legislature. Under the circumstances, in my judgment it should be withdrawn and the rule of State v. Pontery [19 N.J. 457 (1955)] revived. A sound view on the subject was expressed by the Washington Supreme Court in White v. Rhay [64 Wash.2d 15, 390 P.2d 535 (1964)], supra, 390 P.2d, at p. 540:
“Petitioner is mistaken when he assumes that infliction of the death penalty in trials involving capital cases is in any way discretionary with the prosecuting attorney, or his deputies, conducting the trial for the state. Such discretion vests neither in counsel nor the court, but solely in the